<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 26, 1995
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DOVER CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C>
DELAWARE 53-0257888
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
280 PARK AVENUE
NEW YORK, NEW YORK 10017-1292
(212) 922-1640
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------
ROBERT G. KUHBACH, ESQ.
DOVER CORPORATION
280 PARK AVENUE
NEW YORK, NEW YORK 10017-1292
(212) 922-1640
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------
Copy to:
<TABLE>
<S> <C>
JOSEPH W. SCHMIDT, ESQ. ANDREW D. SOUSSLOFF, ESQ.
WHITMAN BREED ABBOTT & MORGAN SULLIVAN & CROMWELL
200 PARK AVENUE 125 BROAD STREET
NEW YORK, NEW YORK 10166 NEW YORK, NEW YORK 10004
(212) 351-3000 (212) 558-4000
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this registration statement becomes effective.
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. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================
PROPOSED
PROPOSED MAXIMUM
MAXIMUM AGGREGATE
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(1) PRICE(1) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Notes...................... $250,000,000 100% $250,000,000 $86,207
=================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457.
------------------------
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.
================================================================================
<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 OCTOBER 26, 1995
$250,000,000
(LOGO)
% NOTES DUE , 2005
------------------------
Interest on the Notes is payable on and of each year,
commencing , 1996. The Notes are not redeemable prior to maturity. The
Notes will be represented by one or more global Notes and registered in the name
of the nominee of The Depository Trust Company. Beneficial interests in the
global Notes will be shown on, and transfers thereof will be effected only
through, records maintained by DTC and its participants. Except as described
herein, Notes in definitive form will not be issued. The Notes will be issued
only in registered form in denominations of $1,000 and integral multiples
thereof. The Notes will trade in DTC's Same-Day Funds Settlement System until
maturity, and secondary market trading activity for the Notes will therefore
settle in immediately available funds. All payments of principal and interest
will be made by the Company in immediately available funds. See "Description of
Notes -- Same-Day Settlement and Payment."
------------------------
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.
------------------------
<TABLE>
<CAPTION>
INITIAL PUBLIC UNDERWRITING PROCEEDS TO
OFFERING PRICE(1) DISCOUNT(2) COMPANY(1)(3)
------------------ ------------------ ------------------
<S> <C> <C> <C>
Per Note........................... % % %
Total.............................. $ $ $
</TABLE>
- ---------------
(1) Plus accrued interest, if any, from , 1995.
(2) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
(3) Before deducting estimated expenses of $350,000 payable by the Company.
------------------------
The Notes are offered severally by the Underwriters, as specified herein,
subject to receipt and acceptance by them and subject to their right to reject
any order in whole or in part. It is expected that the Notes will be ready for
delivery in book-entry form only through the facilities of DTC in New York, New
York on or about , 1995, against payment therefor in immediately
available funds.
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS
J.P. MORGAN SECURITIES INC.
------------------------
The date of this Prospectus is , 1995
<PAGE> 3
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES OFFERED
HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET.
SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information (including
proxy and information statements) filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at its
principal office at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549,
and at the following Regional Offices of the Commission: New York Regional
Office, 7 World Trade Center, Suite 1300, New York, New York 10048 and Chicago
Regional Office, 500 West Madison, Suite 1400, Chicago, Illinois 60661. Copies
of such material can be obtained at prescribed rates from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549. Such
reports, proxy statements and other information concerning the Company can also
be inspected at the office of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005, on which the Company's common stock is listed.
This Prospectus constitutes a part of a Registration Statement filed by the
Company with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). 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. Reference is hereby
made to the Registration Statement and related exhibits for further information
with respect to the Company and the Notes offered hereby. Statements contained
herein concerning the provisions of any document are not necessarily complete
and, in each instance, reference is made to the copy of such document filed as
an exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant
to the Exchange Act are hereby incorporated by reference in this Prospectus: (1)
Annual Report on Form 10-K for the fiscal year ended December 31, 1994, (2)
Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and
September 30, 1995, (3) Current Report on Form 8-K dated August 7, 1995, as
filed on August 11, 1995 and amended on August 17, 1995, and (4) Current Report
on Form 8-K dated September 29, 1995, as filed on October 16, 1995 and amended
on October 25, 1995.
All reports and other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Prospectus
and prior to the termination of this offering shall be deemed to be incorporated
by reference herein and to be a part hereof from the respective dates of filing
of such reports and other documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for all purposes to the extent that a statement
contained in this Prospectus or in any other subsequently filed document that is
also incorporated by reference herein modifies or replaces 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 Company herein undertakes to provide without charge to each person to
whom this Prospectus is delivered, upon written or oral request of such person,
a copy of any and all documents incorporated by reference in this Prospectus
(other than exhibits to such documents unless such exhibits are incorporated by
reference therein). Requests for such copies should be directed to Dover
Corporation, 280 Park Avenue, New York, New York 10017-1292, Attn: Corporate
Secretary, telephone number (212) 922-1640.
2
<PAGE> 4
THE COMPANY
The Company is a diversified industrial manufacturing corporation
encompassing over 50 different operating companies which manufacture a broad
range of specialized industrial products and sophisticated manufacturing
equipment. As used herein, the term the "Company" refers to Dover Corporation
and its consolidated subsidiaries, unless otherwise indicated or unless the
context otherwise requires.
The Company's businesses are divided into five business segments. Dover
Resources manufactures products primarily for the automotive, fluid handling,
petroleum and chemical industries. Dover Industries makes products for use in
the waste handling, bulk transport, automotive service, commercial food service
and machine tool industries. Dover Technologies builds primarily sophisticated
automated assembly equipment for the electronics industry and, to a lesser
degree, specialized electronic components. Dover Diversified builds
sophisticated assembly and production machines, heat transfer equipment and
specialized compressors, as well as sophisticated products and control systems
for use in the defense, aerospace and commercial building industries. Dover
Elevator manufactures, installs and services elevators primarily in North
America.
The Company emphasizes growth and strong internal cash flow. It has a
long-standing and successful acquisition program pursuant to which, from January
1, 1990 through September 30, 1995, the Company made 48 acquisitions at a total
acquisition cost of $1.038 billion. These acquisitions have had a substantial
impact on the Company's increase in sales and earnings since 1990. The Company's
acquisition program traditionally focused on acquiring new or stand-alone
businesses. However, since 1993, increased emphasis has been placed on acquiring
businesses which can be added on to existing operations. The Company aims to be
in businesses marked by growth, innovation and higher than average profit
margins. It seeks to have each of its businesses be a leader in its market as
measured by market share, innovation, profitability and return on assets.
The Company practices a highly decentralized management style. The
presidents of operating companies are very autonomous and have a high level of
independent responsibility for their businesses and their performance. This is
in keeping with the Company's operating philosophy that small independent
operations are better able to serve customers by focusing closely on their
products and reacting quickly to customer needs. The Company's executive
management becomes involved only to guide and manage capital, assist in major
acquisitions, evaluate, motivate and, if necessary, replace operating
management, and provide selected other services.
Dover Resources, which accounted for 16% of the Company's sales in the
nine-month period ended September 30, 1995, manufactures components and
equipment primarily for the automotive, fluid handling, petroleum and chemical
industries. Its largest businesses are De-Sta-Co (compressor valves and
workholding devices), OPW Fueling Components (gasoline nozzles and related
service station equipment), and Blackmer (rotary vein and progressive cavity
pumps and gas compressors). At the beginning of 1994, Dover Resources acquired
Midland Manufacturing, a market leader in safety valves and gauging equipment
for rail tank cars. Other Dover Resources companies produce liquid monitoring,
filtration and control systems, oil and gas production equipment, and other
valve, instrumentation and control systems and products.
Dover Industries, which accounted for 22% of the Company's sales in the
nine-month period ended September 30, 1995, manufactures a diverse mix of
equipment and components for use in the waste handling, bulk transport,
automotive service, commercial food service, machine tool and other industries.
The largest operations are Heil, acquired in 1993 (trailerized tanks and refuse
collecting vehicles), Tipper Tie (clip closures for food packaging), Marathon,
acquired at the end of 1990 (solid waste compaction, transporting and recycling
equipment), Rotary Lift (automotive lifts), and Groen (food service equipment).
In 1994, Tipper Tie acquired Technopack of Hamburg, Germany, a former licensee,
and combined it with Tipper Tie's European operations. Other Dover Industries
operations produce auto collision measuring and repair systems, commercial
refrigeration, welding torches, plasma cutting products and screw machines.
3
<PAGE> 5
Dover Technologies, which accounted for 22% of the Company's sales in the
nine-month period ended September 30, 1995, sells assembly equipment, screen
printers, and soldering machines for the printed circuit board industry, as well
as components for communications (including wireless) and military applications.
Its primary competitors are Japanese producers, including Fuji Machine,
Panasonic and TDK. The most significant business in this segment is Universal
Instruments which, in the nine-month period ended September 30, 1995, accounted
for almost 70% of the sales and a higher percentage of the operating profit of
Dover Technologies. Universal Instruments' sales and operating profit for such
period in 1995 grew 42% and 112%, respectively, over the comparable period in
1994. Universal Instruments is the world's largest producer of thru-hole printed
circuit board assembly equipment, as well as a significant manufacturer of
surface mount printed circuit board assembly equipment. At the end of the third
quarter of 1995, Dover acquired Imaje, S.A., for approximately $205 million. See
"-- Recent Development -- Acquisition of Imaje, S.A."
Dover Diversified, which accounted for 18% of the Company's sales in the
nine-month period ended September 30, 1995, manufactures equipment and
components for industrial, commercial, and defense applications. The largest
operations are Belvac, acquired in 1993 (can-making machinery), Tranter (process
industry heat exchangers), A-C Compressor, acquired in 1992 (process industry
compressors), and Hill Phoenix, acquired in 1993-94 (refrigeration cases and
systems for supermarkets). In the second quarter of 1995, Dover Diversified
acquired Mark Andy, a leading manufacturer of narrow web flexographic printing
presses. Other Dover Diversified businesses produce such products as fluid film
and self-lubricating bearings, metal and fabric expansion joints, submarine and
aircraft hydraulic controls, remote manipulators and industrial cleaning
equipment.
Dover Elevator, which accounted for 22% of the Company's sales in the
nine-month period ended September 30, 1995, is the nation's largest manufacturer
and installer, and one of the largest servicers, of elevators for low- and
mid-rise buildings. Dover Elevator also participates in the high-rise market for
new equipment and service. Its primary competitors are Otis,
Westinghouse/Schindler and Montgomery/Kone. Dover Elevator also sells and
services elevators in foreign markets, principally the United Kingdom and
Canada. Somewhat less than half of Dover Elevator's sales and all of its profits
are generated by the service business. During the third quarter of 1995, Dover
Elevator took a charge against earnings of $15 million in connection with the
decision to close manufacturing operations in Canada. Recent changes have been
made in Dover Elevator's operating management reflecting the Company's intention
to conduct business in North America in a more unified and centralized manner.
The address and telephone number of the Company's principal executive
offices are 280 Park Avenue, New York, New York 10017-1292, (212) 922-1640.
Dover Corporation is a Delaware corporation which conducts substantially all its
business through subsidiaries.
RECENT DEVELOPMENT -- ACQUISITION OF IMAJE, S.A.
On September 29, 1995, the Company, through a wholly-owned subsidiary,
acquired 88% of the outstanding stock of Imaje, S.A., a French company. The
Company currently holds approximately 94% of the outstanding shares of Imaje and
intends to purchase the remainder thereof, including 1% that has been tendered
and is being processed for payment and another 4% that the Company has an option
to purchase within one year. The economic cost to acquire 100% of the stock of
Imaje, including all direct costs, is approximately $205 million, where
"economic cost" is defined as total cash consideration plus long-term debt
assumed less cash acquired. Under generally accepted accounting principles, the
comparable purchase price is approximately $212 million. To fund the
acquisition, the Company increased its short term commercial paper borrowings by
approximately $200 million and used some internally-generated funds.
Based in Valence, France, Imaje is one of the world's three largest
manufacturers of industrial continuous ink jet printers and specialized inks
used for coding and marking a wide variety of
4
<PAGE> 6
products and consumables. It also produces laser and contact marking printers.
Imaje had sales of $144 million and operating profit of $27 million for 1994,
and sales of $82 million and operating profit of $22 million for the six months
ended June 30, 1995. These operating profit figures include charges for employee
profit sharing, goodwill amortization and certain exceptional expenses. Imaje
employs approximately 900 people, 45% in France and the balance in subsidiaries
throughout the world.
Certain financial statements of Imaje and pro forma financial information
of the Company reflecting the Imaje acquisition are contained in the Company's
Current Report on Form 8-K dated September 29, 1995, as filed on October 16,
1995 and amended on October 25, 1995, which is incorporated herein by reference.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Notes offered hereby
are estimated to be approximately $248 million. The net proceeds will be used to
reduce the level of the Company's commercial paper outstanding. Commercial paper
totaled $745 million at September 30, 1995, with a weighted average interest
rate of 5.785% and an average maturity of 33 days. The Company has historically
used commercial paper, together with internally-generated cash, to finance
acquisitions. See "The Company -- Recent Development -- Acquisition of Imaje."
CAPITALIZATION
The following table sets forth the short-term debt and capitalization of
the Company at September 30, 1995, and as adjusted to reflect the issuance and
sale of the Notes offered hereby and the application of the net proceeds
therefrom to reduce commercial paper. See "Use of Proceeds."
<TABLE>
<CAPTION>
SEPTEMBER 30, 1995
--------------------------
ACTUAL AS ADJUSTED
---------- -----------
(IN THOUSANDS)
<S> <C> <C>
SHORT-TERM DEBT:
Commercial paper.......................................................... $ 495,000 $ 247,000
Other notes payable....................................................... 2,315 2,315
---------- ----------
Total notes payable................................................ 497,315 249,315
Current portion of long-term debt......................................... 297 297
---------- ----------
Total Short-Term Debt.............................................. $ 497,612 $ 249,612
========== ==========
LONG-TERM DEBT:
Commercial paper.......................................................... $ 250,000 $ 250,000
% Notes due , 2005........................................... -- 250,000
Other long-term debt including capital leases............................. 2,208 2,208
---------- ----------
Total Long-Term Debt............................................... $ 252,208 $ 502,208
STOCKHOLDERS' EQUITY:
Common stock, $1 par value, authorized 200,000,000 shares; issued
113,578,000 shares...................................................... $ 120,996 $ 120,996
Cumulative translation adjustments and unrealized holding losses.......... 6,964 6,964
Retained earnings......................................................... 1,100,758 1,100,758
---------- ----------
1,228,718 1,228,718
Less common stock in treasury, at cost -- 2,889,000 shares................ 53,595 53,595
---------- ----------
Total Stockholders' Equity......................................... 1,175,123 1,175,123
---------- ----------
TOTAL CAPITALIZATION........................................................ $1,427,331 $ 1,677,331
========== ==========
</TABLE>
5
<PAGE> 7
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected consolidated financial data concerning the Company
for, and as of the end of, each of the five years in the period ended December
31, 1994, has been derived from consolidated financial statements which have
been audited by KPMG Peat Marwick LLP, independent auditors. The information for
interim periods is unaudited; however, in the opinion of management, all
adjustments (consisting only of normal recurring adjustments) necessary for a
fair presentation of such information have been included. The interim results of
operations may not be indicative of the results for the full year. The selected
consolidated financial information should be read in conjunction with the
consolidated financial statements and related notes incorporated herein by
reference.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
------------------------------------------------------------------
1990 1991 1992 1993 1994
---------- ---------- ---------- ---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
EARNINGS STATEMENT DATA:
Net sales............................ $2,210,345 $2,195,786 $2,271,580 $2,483,928 $3,085,276
Gross profit......................... 693,592 615,736 669,985 750,672 947,799
Selling and administrative
expenses........................... 440,313 452,394 466,777 496,799 622,434
---------- ---------- ---------- ---------- ----------
Operating profit..................... 253,279 163,342 203,208 253,873 325,365
Interest expense..................... 30,658 23,161 20,059 22,339 36,461
Other income, net.................... 21,497 63,907 17,186 14,008 17,955
---------- ---------- ---------- ---------- ----------
Earnings before taxes on income and
cumulative effects of changes in
accounting principles.............. 244,118 204,088 200,335 245,542 306,859
Federal and other taxes on income.... 88,439 75,880 71,192 87,288 104,486
---------- ---------- ---------- ---------- ----------
Earnings before cumulative effects of
changes in accounting principles... 155,679 128,208 129,143 158,254 202,373
Cumulative effects at January 1,
1992, of changes in accounting for:
Income taxes....................... 12,951
Postretirement benefits other than
pensions (net of income tax
benefits, $7,159)................ (12,387)
---------- ---------- ---------- ---------- ----------
Net earnings......................... $ 155,679 $ 128,208 $ 129,707 $ 158,254 $ 202,373
========== ========== ========== ========== ==========
OTHER OPERATING DATA:
Cash flow(1)......................... $ 233,210 $ 213,575 $ 207,164 $ 235,223 $ 298,162
Capital expenditures................. 44,980 46,618 42,441 47,532 84,473
Acquisitions......................... 102,834 13,192 111,243 321,002 187,704
Ratio of earnings to fixed
charges(2)......................... 7.3x 7.4x 8.0x 9.0x 7.8x
BALANCE SHEET DATA (AT PERIOD END):
Current assets....................... $ 814,713 $ 756,368 $ 773,991 $ 903,640 $1,133,139
Net property, plant and equipment.... 268,386 251,145 251,270 283,363 342,685
Intangible assets, net of
amortization....................... 335,334 289,794 348,680 535,136 564,420
Other intangible assets.............. 10,258 10,258 10,258 10,258 10,258
Other assets and deferred charges.... 39,675 49,055 41,925 41,292 20,135
---------- ---------- ---------- ---------- ----------
Total assets................ $1,468,366 $1,356,620 $1,426,124 $1,773,689 $2,070,637
========== ========== ========== ========== ==========
Current liabilities.................. $ 607,965 $ 475,465 $ 572,350 $ 595,794 $ 772,223
Long-term obligations................ 35,057 17,268 27,337 287,484 300,010
Deferred income taxes................ 37,684 35,513 21,500 20,409 2,545
Stockholders' equity................. 787,660 828,374 804,937 870,002 995,859
---------- ---------- ---------- ---------- ----------
Total liabilities and
stockholders' equity...... $1,468,366 $1,356,620 $1,426,124 $1,773,689 $2,070,637
========== ========== ========== ========== ==========
</TABLE>
- ---------------
(1) Represents net earnings plus depreciation and amortization.
(2) Computed by dividing fixed charges of the Company into earnings before
income taxes plus fixed charges. Fixed charges consist of interest expense
and the portion of rental expense which is deemed to be representative of
the interest factor.
6
<PAGE> 8
<TABLE>
<CAPTION>
THREE MONTHS ENDED
NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------- ---------------------
1994 1995 1994 1995
---------- ---------- -------- --------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C>
EARNINGS STATEMENT DATA:
Net sales.......................................... $2,246,411 $2,736,836 $804,460 $934,543
Gross profit....................................... 694,056 862,691 245,228 289,619
Selling, general and administrative expenses....... 450,649 533,193 157,149 177,111
---------- ---------- -------- --------
Operating profit................................... 243,407 329,498 88,079 112,508
Interest expense................................... 25,029 27,101 9,911 9,559
Other income, net.................................. 10,655 13,666 1,424 246
---------- ---------- -------- --------
Earnings before taxes on income.................... 229,033 316,063 79,592 103,195
Federal and other taxes on income.................. 82,150 106,224 27,722 32,047
---------- ---------- -------- --------
Net earnings....................................... $ 146,883 $ 209,839 $ 51,870 $ 71,148
========== ========== ======== ========
OTHER OPERATING DATA:
Cash flow(1)....................................... $ 216,482 $ 287,444 $ 76,511 $ 99,077
Capital expenditures............................... 55,256 71,269 21,035 24,207
Acquisitions....................................... 182,615 301,806 32,834 203,114
Ratio of earnings to fixed charges(2).............. 8.3x 10.3x 7.9x 10.2x
BALANCE SHEET DATA (AT PERIOD END):
Current assets..................................... $1,097,749 $1,314,240
Net property, plant and equipment.................. 331,314 392,189
Intangible assets, net of amortization............. 618,392 813,054
Other intangible assets............................ 10,258 10,258
Other assets and deferred charges.................. 38,140 27,929
---------- ----------
Total assets.............................. $2,095,853 $2,557,670
========== ==========
Current liabilities................................ $ 785,632 $1,067,943
Long-term obligations.............................. 303,640 306,322
Deferred income taxes.............................. 16,895 8,282
Stockholders' equity............................... 989,686 1,175,123
---------- ----------
Total liabilities and stockholders'
equity.................................. $2,095,853 $2,557,670
========== ==========
</TABLE>
- ---------------
(1) Represents net earnings plus depreciation and amortization.
(2) Computed by dividing fixed charges of the Company into earnings before
income taxes plus fixed charges. Fixed charges consist of interest expense
and the portion of rental expense which is deemed to be representative of
the interest factor.
7
<PAGE> 9
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
GENERAL
Set forth below are the sales and operating profits of the Company's five
business segments for the periods indicated. Such information should be read in
conjunction with the other financial information set forth or incorporated by
reference herein:
<TABLE>
<CAPTION>
NINE MONTHS THREE MONTHS ENDED
YEAR ENDED DECEMBER 31, ENDED
SEPTEMBER 30, SEPTEMBER 30,
----------------------- ----------------------- -------------------
1993 1994 1994 1995 1994 1995
---------- ---------- ---------- ---------- -------- --------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C>
SALES TO UNAFFILIATED CUSTOMERS:
Dover Resources............... $ 472,643 $ 525,971 $ 387,678 $ 433,548 $137,430 $143,813
Dover Industries.............. 501,364 691,342 509,615 594,841 179,489 197,265
Dover Technologies............ 488,248 603,068 440,191 615,030 157,354 210,626
Dover Diversified............. 244,597 472,706 317,662 488,216 131,035 176,928
Dover Elevator................ 777,720 793,559 592,249 608,868 199,514 207,047
Intramarket sales............. (644) (1,370) (984) (3,667) (362) (1,136)
---------- ---------- ---------- ---------- -------- --------
Consolidated total..... $2,483,928 $3,085,276 $2,246,411 $2,736,836 $804,460 $934,543
========== ========== ========== ========== ======== ========
OPERATING PROFIT:
Dover Resources............... $ 70,290 $ 83,979 $ 62,578 $ 68,396 $ 22,771 $ 21,654
Dover Industries.............. 59,942 81,028 62,278 88,167 23,431 29,259
Dover Technologies............ 41,797 76,205 51,985 96,995 20,720 32,990
Dover Diversified............. 39,360 67,220 43,488 67,144(1) 13,399 29,233(1)
Dover Elevator................ 56,404 46,123 41,722 29,936(2) 12,109 1,956(2)
Interest income, interest
expense and general
corporate expenses, net..... (22,251) (47,696) (33,018) (34,575) (12,838) (11,897)
---------- ---------- ---------- ---------- -------- --------
Earnings before taxes
on income............ $ 245,542 $ 306,859 $ 229,033 $ 316,063 $ 79,592 $103,195
========== ========== ========== ========== ======== ========
</TABLE>
- ---------------
(1) Includes contract settlement pre-tax gain of $9.5 million in the 1995 third
quarter and $11.6 million for the nine months ended September 30, 1995.
(2) Includes a pre-tax charge of $15 million in the 1995 third quarter in
connection with the closing of manufacturing operations in Canada.
RESULTS OF OPERATIONS:
Nine Months and Three Months Ended September 30, 1995 compared with 1994
periods:
Sales in the nine months ended September 30, 1995 increased 22% to $2.7
billion compared to the 1994 period and net earnings increased approximately $63
million, or 43%. For the third quarter, sales of $935 million were up 16% from
last year's third quarter and net earnings increased approximately $19 million,
or 37%. The 1995 third quarter results included two non-recurring items -- a $15
million pre-tax provision for costs to close an elevator manufacturing facility
(included in the Dover Elevator segment) that was partially offset by a pre-tax
gain of $9.5 million from the settlement of contract claims on a government
program (included in the Dover Diversified segment).
8
<PAGE> 10
A discussion of results of operations by segments follows:
Dover Resources: Sales in the Dover Resources segment increased 12% and 5%
for the nine-month and three-month periods, respectively. Operating earnings
were up 9% for the nine months but declined by 5% in the third quarter,
primarily as a result of lower sales of vapor recovery products at Blackmer and
OPW as a result of weaker market conditions in the product area after very
strong growth in recent years. De-Sta-Co's sales increased but margins dropped
due to sales mix and a temporary shortage of skilled labor that resulted in
excessive overtime, higher turnover and increased training costs at its Detroit
facilities. Seven of Dover Resources' 16 companies achieved earnings gains in
the third quarter. Backlog at September 30, 1995 was $83 million, which was 15%
above the 1994 level.
Dover Industries: Dover Industries reported sales increases of 17% for the
nine months and 10% for the third quarter. Operating earnings were up 42% for
the nine months and 25% in the third quarter. Seven of Dover Industries' 12
businesses reported earnings gains for the third quarter as compared to the
prior year period, with Heil, Marathon, Davenport and Texas Hydraulics each
reporting profit growth in excess of 25%. Auto service equipment (Rotary and
Chief) and commercial restaurant equipment (Groen and Randell) recorded a
decline in sales and earnings as a result of the softness in the U.S. economy
earlier in the year. Backlog at September 30, 1995 was $155 million, a 1%
increase above the 1994 level.
Dover Technologies: Sales and operating profits grew 40% and 87% in the
nine-month period and 34% and 59% in the third quarter. Almost all of the $45
million profit increase in the nine months and the $12.3 million increase in the
third quarter was achieved at Universal Instruments, although four of Dover
Technologies' six other businesses also achieved sales and operating earnings
gains. The results at Universal Instruments reflected a favorable mix of higher
margin thru-hole products compared to the generally more rapidly growing surface
mount equipment. Backlog of $186 million at September 30, 1995 was 36% higher
than the prior year.
Dover Diversified: Dover Diversified's sales increased 54% and 35% in the
nine-month period and third quarter, respectively. Operating earnings for the
same periods increased 28% and 47%, excluding the contract settlement
contribution of $11.6 million for the nine months and $9.5 million for the third
quarter. These increases were primarily due to strong gains at Belvac (beverage
can making equipment) and Tranter (heat transfer products). Disappointing profit
levels at Hill Phoenix and A-C Compressor, whose combined third quarter sales
exceeded $70 million, had an adverse effect on overall operating margins for the
segment. Backlog was $344 million at September 30, 1995, an increase of 37% over
the prior year.
Dover Elevator: Dover Elevator's sales increased 3% in the nine-month
period and 4% in the third quarter of 1995 compared to the 1994 periods.
Operating profits of $45 million for the nine-month period were up 8% over the
prior year period. Third quarter operating profits of approximately $17 million
were up 40% over the 1994 quarter. General Elevator, which had recorded a loss
in the 1994 period, was profitable in the 1995 third quarter. As indicated,
Dover Elevator established a $15 million provision in the 1995 third quarter for
cash costs and property write-downs associated with the decision to close
manufacturing operations in Canada. Backlog at September 30, 1995 was $270
million, an increase of 6% over 1994.
1994 compared with 1993:
Sales in 1994 rose 24% to almost $3.1 billion, an increase of $601 million,
reflecting both internal growth at most Dover companies and the effect of the
Company's significant acquisition activity in 1993 and 1994.
Companies acquired in 1993 added $155 million to Dover's 1993 sales. The
internal growth of these businesses, and their inclusion for a full year, led to
a further sales contribution in 1994 of approximately $260 million, representing
about 10 percentage points of the 24% year-to-year sales
9
<PAGE> 11
gain. Additionally, the companies acquired during 1994 added $151 million to
1994 sales, accounting for 6 percentage points of the sales gain. The 1994 sales
growth of businesses Dover owned at the start of 1993 averaged approximately 10%
(adjusted for the effect of the spin-off of DOVatron in mid-1993).
While acquisitions provided much of the Company's sales growth, the major
portion of the $44 million, or 28%, gain in earnings came from the internal
growth of existing companies. Companies acquired in 1994 made no contribution to
earnings because of acquisition-related costs and interest income foregone.
Companies acquired in 1993 contributed about 13 percentage points to the overall
reported gain, with a portion reflecting internal growth after acquisition.
A discussion of results of operations by industry segments follows:
Dover Resources: Profits at Dover Resources improved 19% in 1994 compared
to 1993 on an 11% sales gain. Some of the sales and earnings gains resulted from
the acquisition of Midland Manufacturing at the start of the year, but the
largest portion came from internal growth as a result of strong demand for
De-Sta-Co's domestic valve and clamp products and OPW's vapor recovery products.
Dover Industries: Dover Industries achieved record sales of $691 million
in 1994, up 38% from the prior year, and operating income of $81 million, up
35%, also a record level. These results reflect both acquisitions and strong
internal growth. Each of Dover Industries' 12 businesses achieved an earnings
improvement in 1994 with particularly impressive percentage increases at Rotary
Lift, Texas Hydraulics, Tipper Tie and Bernard. In addition, Heil, which was
acquired in 1993 and is the largest company in the Dover Industries segment,
recorded record levels of sales and profits.
Dover Technologies: Dover Technologies also had a record year in 1994,
with an earnings gain of 82% compared to 1993 on a sales gain of 24%. Most of
the gains in this segment were attributable to a record performance by Universal
Instruments, which benefited from the continuing demand for capital equipment
within the electronics industry, as well as from market share gains in the very
profitable thru-hole technology sector of its business and successful new
product offerings in the surface mount technology sector. Strong sales gains and
record earnings were also achieved by DEK.
Dover Diversified: Profits at Dover Diversified increased a record 71% in
1994 on a sales gain of $228 million, or more than 90%. Acquisitions made during
1994 provided $93 million of this sales gain, but made no contribution to
earnings, as acquisition-related write-offs and the expected low operating
margins at the Hill Refrigeration Company offset good profit results at
Tranter's newly acquired European companies. A further portion of the sales
gain -- approximately $110 million -- resulted from having several 1993
acquisitions, most notably Belvac and Phoenix Refrigeration, for a full year,
and from growth at those companies. Most Dover Diversified companies showed
sales and earnings growth in 1994, with particular strength at Belvac because of
the widespread acceptance of its die-necking technology within the can-making
industry.
Dover Elevator: Profits at Dover Elevator International fell a
disappointing 18% on flat sales. All of the decline was attributable to poor
results at General Elevator, which has been primarily a service and
modernization company serving the U.S. elevator aftermarket for non-Dover
equipment. A modest operating loss at General Elevator was exacerbated by
approximately $11.5 million in write-offs and unusual expenses incurred during
the year.
LIQUIDITY AND CAPITAL RESOURCES:
Working capital decreased from $360.9 million at the end of 1994 to $246.3
million at September 30, 1995. The $114.6 million decrease represents positive
cash flow during 1995 net of $302 million paid for acquisitions.
10
<PAGE> 12
At September 30, 1995, net debt (defined as long-term debt plus current
maturities on long-term debt plus notes payable less cash and equivalents and
marketable securities) amounted to $590 million representing 33% of total
capital. This compares with 27% at December 31, 1994.
The Company's current ratio (current assets divided by current liabilities)
decreased to 1.23 at September 30, 1995, compared with 1.47 at December 31,
1994. The quick ratio (current assets net of inventories, divided by current
liabilities) also decreased to 0.82 at September 30, 1995 compared with 1.00 at
December 31, 1994. Working capital expressed as a percentage of sales was 9.0%
at September 30, 1995, and 11.7% at December 31, 1994.
At September 30, 1995, the Company had bank lines of $404 million, all of
which were unused. Additional bank lines of credit are available at the
Company's request.
DESCRIPTION OF THE NOTES
The Notes are to be issued under an Indenture, to be dated as of
, 1995 (the "Indenture"), between the Company and The First National
Bank of Chicago, as Trustee (the "Trustee"), a copy of which is filed as an
exhibit to the Registration Statement of which this Prospectus is a part. The
following summaries of certain provisions of the Indenture do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the Indenture, including the definitions therein of
certain terms. Wherever particular Sections or defined terms of the Indenture
are referred to, such Sections or defined terms are incorporated herein by
reference.
GENERAL
The Notes will be unsecured obligations of the Company, will be limited to
$250,000,000 aggregate principal amount and will mature on , 2005.
The Notes will bear interest at the rate per annum shown on the front cover of
this Prospectus from , 1995 or from the most recent Interest Payment
Date to which interest has been paid or provided for, payable semi-annually on
and of each year, commencing , 1996. Interest
on each Note will be paid to the Person in whose name the Note (or any
predecessor Note) is registered at the close of business on the preceding
or , as the case may be. (Sections 301 and 307)
The Notes will not be redeemable prior to maturity and will not have the
benefit of any sinking fund.
The Company conducts substantially all its business through subsidiaries.
Although the Notes are senior obligations of the Company, they are effectively
subordinated to all existing and future liabilities of the Company's
subsidiaries. The Indenture does not restrict the ability of the Company's
subsidiaries to incur indebtedness. Because the Company is a holding company,
the Company's ability to service its indebtedness is dependent on dividends and
other payments made to it on its investments in its subsidiaries.
BOOK-ENTRY SYSTEM
The Notes will be issued in the form of fully registered global notes
(collectively, the "Global Notes"), which will be deposited with, or on behalf
of, The Depository Trust Company, New York, New York (the "Depositary") and
registered in the name of the Depositary's nominee. Except as set forth below,
the Global Notes may be transferred, in whole and not in part, only to the
Depositary or another nominee of the Depositary.
So long as the Depositary or its nominee is the registered owner thereof,
the Depositary or such nominee, as the case may be, will be considered the sole
owner or Holder of the Notes represented by such Global Note for all purposes
under the Indenture. Except as provided below, owners of beneficial interests in
a Global Note will not be entitled to have Notes represented by such Global
11
<PAGE> 13
Note registered in their names, will not receive or be entitled to receive
physical delivery of Notes in definitive form and will not be considered the
owners or Holders thereof under the Indenture.
The following is based on information furnished by the Depositary:
The Depositary will act as securities depository for the Notes. The Notes
will be issued as fully registered securities registered in the name of Cede &
Co. (the Depositary's partnership nominee). One fully registered Global Note
will be issued with respect to $200,000,000 of principal amount and an
additional Global Note will be issued with respect to the remaining $50,000,000
principal amount, and the Global Notes will be deposited with the Depositary.
The Depositary is a limited-purpose trust company organized under the New
York Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code, and a "clearing
agency" registered pursuant to the provisions of Section 17A of Securities
Exchange Act of 1934. The Depositary holds securities that its participants
("Participants") deposit with the Depositary. The Depositary also facilitates
the settlement among Participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized book-entry
changes in Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct Participants ("Direct Participants")
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations. The Depositary is owned by a
number of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the Depositary's system is also available to others such
as securities brokers and dealers, banks and trust companies that clear through
or maintain a custodial relationship with a Direct Participant, either directly
or indirectly ("Indirect Participant"). The rules applicable to the Depositary
and its Participants are on file with the Securities and Exchange Commission.
Purchases of Notes under the Depositary's system must be made by or through
Direct Participants, which will receive a credit for such Notes on the
Depositary's records. The ownership interest of the actual purchaser of each
Note represented by a Global Note ("Beneficial Owner") is in turn to be recorded
on the Direct and Indirect Participants' records. Beneficial Owners will not
receive written confirmation from the Depositary of their purchase, but
Beneficial Owners are expected to receive written confirmations providing
details of the transaction, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which such Beneficial Owner
entered into the transaction. Transfers of ownership interests in a Global Note
representing Notes are to be accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners of a
Global Note representing Notes will not receive Notes in definitive form
representing their ownership interests therein, except in the event that use of
the book-entry system for such Notes is discontinued or upon the occurrence of
certain other events described herein.
To facilitate subsequent transfers, all Global Notes representing Notes
which are deposited with the Depositary are registered in the name of the
Depositary's nominee, Cede & Co. The deposit of Global Notes with the Depositary
and their registration in the name of Cede & Co. effect no change in beneficial
ownership. The Depositary has no knowledge of the actual Beneficial Owners of
the Global Notes representing the Notes; the Depositary's records reflect only
the identity of the Direct Participants to whose accounts such Notes are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
Conveyance of notices and other communications by the Depositary to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
12
<PAGE> 14
Neither the Depositary nor Cede & Co. will consent or vote with respect to
the Global Notes representing the Notes. Under its usual procedures, the
Depositary mails an omnibus proxy (an "Omnibus Proxy") to the Company as soon as
possible after the applicable record date. The Omnibus Proxy assigns Cede &
Co.'s consenting or voting rights to those Direct Participants to whose accounts
the Notes are credited on the applicable record date (identified in a listing
attached to the Omnibus Proxy).
Principal and interest payments on the Global Notes representing the Notes
will be made to the Depositary. The Depositary's practice is to credit Direct
Participants' accounts on the applicable payment date in accordance with their
respective holdings shown on the Depositary's records unless the Depositary has
reason to believe that it will not receive payment on such date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is 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 Participant and not of the Depositary, the Trustee or the
Company, subject to any statutory or regulatory requirements as may be in effect
from time to time. Payment of principal and interest to the Depositary is the
responsibility of the Company or the Trustee, disbursement of such payments to
Direct Participants shall be the responsibility of the Depositary, and
disbursement of such payments to the Beneficial Owners shall be the
responsibility of Direct and Indirect Participants. Neither the Company nor the
Trustee will have any responsibility or liability for the disbursements of
payments in respect of ownership interests in the Notes by the Depositary or the
Direct or Indirect Participants or for maintaining or reviewing any records of
the Depositary or the Direct or Indirect Participants relating to ownership
interests in the Notes or the disbursement or payments in respect thereof.
A Beneficial Owner shall give notice to elect to have its Notes repaid by
the Company, through its Participant, to the Trustee, and shall effect delivery
of such Notes by causing the Direct Participant to transfer the Participant's
interest in the Global Note or Global Notes representing such Notes, on the
Depositary's records, to the Trustee. The requirement for physical delivery of
Notes in connection with a demand for repayment will be deemed satisfied when
the ownership rights in the Global Note or Global Notes representing such Notes
are transferred by Direct Participants on the Depositary's records.
The Depositary may discontinue providing its services as securities
depository with respect to the Notes at any time by giving reasonable notice to
the Company or the Trustee. Under such circumstances, and in the event that a
successor securities depository is not obtained, Notes in definitive form are
required to be printed and delivered to each holder.
The Company may decide to discontinue use of the system of book-entry
transfers through the Depositary (or a successor securities depository). In that
event, Notes in definitive form will be printed and delivered.
The information in this section concerning the Depositary and the
Depositary's system has been obtained from sources that the Company believes to
be reliable, but is subject to any changes to the arrangements between the
Company and the Depositary and any changes to such procedures that may be
instituted unilaterally by the Depositary.
SAME-DAY SETTLEMENT AND PAYMENT
Settlement for the Notes will be made in immediately available funds. All
payments of principal and interest will be made by the Company in immediately
available funds or the equivalent. Secondary trading in long-term notes and
debentures of corporate issuers is generally settled in clearing-house or
next-day funds. In contrast, the Notes will trade in the Depositary's Same-Day
Funds Settlement System, and secondary market trading activity in the Notes will
therefore be required by the Depositary to settle in immediately available
funds. No assurances can be given to the effect, if any, of settlement in
immediately available funds on trading activity in the Notes.
13
<PAGE> 15
COVENANTS
The Indenture contains the following covenants:
LIMITATION ON SECURED DEBT
The Company may not, and may not permit any Restricted Subsidiary to, incur
or guarantee any evidence of indebtedness for money borrowed ("Debt") secured by
a Lien on any (i) Principal Property or any part thereof, (ii) Capital Stock of
a Restricted Subsidiary now owned or hereafter acquired by the Company or any
Restricted Subsidiary or (iii) Debt of a Restricted Subsidiary owed to the
Company or any Restricted Subsidiary of the Company, without in any such case
(i), (ii) or (iii) effectively providing that the Notes are secured equally and
ratably with (or, at the Company's option, prior to) such secured Debt and any
other Debt required to be so secured, unless the aggregate amount of all such
secured Debt, plus all Attributable Debt of the Company and its Restricted
Subsidiaries with respect to Sale and Leaseback transactions involving Principal
Properties (with the exception of such transactions which are excluded as
described in "Limitation on Sale and Leaseback Transactions" below), would not
exceed 10% of Consolidated Net Tangible Assets.
The foregoing restriction shall not apply to, and there will be excluded
from Debt in any computation under such restriction, (i) Debt secured by a Lien
in favor of the Company or a Restricted Subsidiary, (ii) Debt secured by a Lien
in favor of governmental bodies to secure progress or advance payments or
payments pursuant to contracts or statute, (iii) Debt secured by a Lien on
property, Capital Stock or Debt existing at the time of acquisition thereof
(including acquisition through merger, consolidation or otherwise), (iv) Debt
incurred or guaranteed to finance the acquisition of property, Capital Stock or
Debt, or to finance construction on, or improvement or expansion of, property,
which Debt is incurred within 180 days of such acquisition or completion of
construction, improvement or expansion, and is secured solely by a Lien on the
property, Capital Stock or Debt acquired, constructed, improved or expanded, (v)
Debt consisting of industrial revenue or pollution control bonds or similar
financing secured solely by a Lien on the property the subject thereof, or (vi)
any extension, renewal or replacement of any Debt referred to in the foregoing
clauses (iii) or (iv). (Section 1008)
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
Neither the Company nor any Restricted Subsidiary shall enter into any Sale
and Leaseback Transaction involving any Principal Property or any part thereof
after the date of original issuance of the Notes unless the aggregate amount of
all Attributable Debt of the Company and its Restricted Subsidiaries with
respect to such transactions plus all secured Debt to which the restrictions
described in "Limitation on Secured Debt" above apply would not exceed 10% of
Consolidated Net Tangible Assets.
The foregoing restriction shall not apply to, and there shall be excluded
from Attributable Debt in any computation under such restriction, any Sale and
Leaseback Transaction if (i) the lease is for a period of not in excess of three
years, including renewal rights, (ii) the lease secures or relates to industrial
revenue or pollution control bonds or similar financing, (iii) the transaction
is between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries, or (iv) the Company or such Restricted Subsidiary, within 180 days
after the sale is completed, applies an amount equal to the greater of (A) the
net proceeds of the sale of the Principal Property leased or (B) the fair market
value of the Principal Property leased either to (1) the retirement of Notes,
other Funded Debt of the Company ranking on a parity with the Notes, or Funded
Debt of a Restricted Subsidiary or (2) the purchase of other property which will
constitute a Principal Property having a value at least equal to the value of
the Principal Property leased. (Section 1009)
14
<PAGE> 16
MERGERS, CONSOLIDATIONS AND CERTAIN SALES OF ASSETS
The Company shall not, in a single transaction or a series of related
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer or lease or otherwise dispose of all or substantially
all of its properties and assets to any Person or group of affiliated Persons,
or permit any of its Restricted Subsidiaries to enter into any such transaction
or transactions if such transaction or transactions, in the aggregate, would
result in a sale, assignment, transfer, lease or disposal of all or
substantially all of the properties and assets of the Company and its Restricted
Subsidiaries on a consolidated basis to any other Person or group of affiliated
Persons, unless: (1) in a transaction in which the Company does not survive or
in which the Company sells, leases or otherwise disposes of all or substantially
all of its assets, the successor entity to the Company is organized under the
laws of the United States of America or any State thereof or the District of
Columbia and shall expressly assume, by a supplemental indenture executed and
delivered to the Trustee in form satisfactory to the Trustee, all of the
Company's obligations under the Indenture; (2) immediately before and after
giving effect to such transaction and treating any Debt which becomes an
obligation of the Company or a Restricted Subsidiary as a result of such
transaction as having been incurred by the Company or such Restricted Subsidiary
at the time of the transaction, no Event of Default or event that with the
passing of time or the giving of notice, or both, would constitute an Event of
Default shall have occurred and be continuing; (3) if, as a result of any such
transaction, property or assets of the Company or any Restricted Subsidiary
would become subject to a Lien prohibited by the provisions of the Indenture
described under "Limitation on Secured Debt" above, the Company or the successor
entity to the Company shall have secured the Notes as required by said covenant;
and (4) certain other conditions are met. (Section 801)
CERTAIN DEFINITIONS
Set forth below is a summary of certain of the defined terms used in the
Indenture. Reference is made to the Indenture for the full definition of all
such terms, as well as any other terms used herein for which no definition is
provided. (Section 101)
"Attributable Debt" means, with respect to a lease in a Sale and Leaseback
Transaction, the total net amount of rent required to be paid during the
remaining primary term of such lease, discounted at a rate per annum equal to
the interest rate on the Notes, calculated in accordance with generally accepted
accounting practices. The net amount of rent required to be paid under any such
lease for any such period shall be the aggregate amount of rent payable by the
lessee with respect to such period after excluding amounts required to be paid
on account of maintenance, repairs, insurance, taxes, assessments, utility,
operating and labor costs and similar charges.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock or
other equity participation, including partnership interests, whether general or
limited, of such Person.
"Consolidated Net Tangible Assets" means the aggregate amount of assets of
the Company and its Subsidiaries after deducting (i) all liabilities other than
deferred income taxes, commercial paper, short-term bank Debt, Funded Debt and
shareholders' equity, and (ii) all goodwill and other intangibles.
"Funded Debt" means (i) all Debt having a maturity of more than 12 months
from the date as of which the determination is made or having a maturity of 12
months or less but by its terms being renewable or extendible beyond 12 months
from such date at the option of the borrower and (ii) rental obligations payable
more than 12 months from such date under leases which are capitalized in
accordance with generally accepted accounting principles (such rental
obligations to be included as Funded Debt at the amount so capitalized at the
date of such computation and to be included for the purposes of the definition
of Consolidated Net Tangible Assets both as an asset and as Funded Debt at the
amount so capitalized).
15
<PAGE> 17
"Lien" means, with respect to any property or assets, any mortgage or deed
of trust, pledge, hypothecation, assignment, deposit arrangement, security
interest, lien, charge, easement (other than any easement not materially
impairing usefulness or marketability), encumbrance, preference, priority or
other security agreement, or any equivalent of any of the foregoing under the
laws of any applicable jurisdiction, on or with respect to such property or
assets (including, without limitation, any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Principal Property" means any facility owned by the Company or any
Restricted Subsidiary the gross book value of which (including related land,
improvements, machinery and equipment so owned, without deduction of any
depreciation reserves) on the date as of which the determination is being made
exceeds 1% of Consolidated Net Tangible Assets.
"Restricted Subsidiary" means any Subsidiary which owns a Principal
Property.
"Sale and Leaseback Transaction" means an arrangement with any lender or
investor or to which such lender or investor is a party providing for the
leasing by such Person of any property or asset of such Person which has been or
is being sold or transferred by such Person more than 180 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Subsidiary" means (i) a corporation more than 50% of the voting stock of
which is owned by the Company and/or one or more Subsidiaries or (ii) any other
Person (other than a corporation) of which the Company and/or one or more
Subsidiaries has at least a majority ownership and power to direct the policies,
management and affairs.
EVENTS OF DEFAULT
The following will be Events of Default under the Indenture: (a) failure to
pay principal of any Note when due; (b) failure to pay any interest on any Note
when due, continued for 30 days; (c) failure to perform any other covenant of
the Company in the Indenture, continued for 60 days after written notice as
provided in the Indenture; or (d) certain events of bankruptcy, insolvency or
reorganization involving the Company or any Restricted Subsidiary. (Section 501)
Subject to the provisions of the Indenture relating to the duties of the Trustee
in case an Event of Default shall occur and be continuing, the Trustee will be
under no obligation to exercise any of its rights or powers under the Indenture
at the request or direction of any of the Holders, unless such Holders shall
have offered to the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for the indemnification of the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Notes will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee. (Section 512)
If an Event of Default (other than an Event of Default described in Clause
(d) above) shall occur and be continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Notes may
accelerate the maturity of all Notes; provided, however, that after such
acceleration, but before a judgment or decree based on acceleration, the Holders
of a majority in aggregate principal amount of Outstanding Notes may, under
certain circumstances, rescind and annul such acceleration if all Events of
Default, other than the non-payment of accelerated principal, have been cured or
waived as provided in the Indenture. If an Event of Default specified in clause
(d) above occurs, the Outstanding Notes will ipso facto become immediately due
and payable without any declaration or other act on the part of the Trustee or
any Holder. (Section 502) For information as to waiver of defaults, see
"Modification and Waiver".
16
<PAGE> 18
No Holder of any Note will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such Holder shall
have previously given to the Trustee written notice of a continuing Event of
Default and unless also the Holders of at least 25% in aggregate principal
amount of the Outstanding Notes shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Outstanding Notes a direction inconsistent
with such request and shall have failed to institute such proceeding within 60
days. (Section 507) However, such limitations do not apply to a suit instituted
by a Holder of a Note for enforcement of payment of the principal of or interest
on such Note on or after the respective due dates expressed in such Note.
(Section 508)
The Company will be required to furnish to the Trustee annually a statement
as to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Section 1004)
DEFEASANCE
The Indenture will provide that, at the option of the Company, (A) if
applicable, the Company will be discharged from any and all obligations in
respect of the Outstanding Notes or (B) if applicable, the Company may omit to
comply with certain restrictive covenants and that such omission shall not be
deemed to be an Event of Default under the Indenture and the Notes, in either
case (A) or (B) upon irrevocable deposit with the Trustee, in trust, of money
and/or U.S. government obligations which will provide money in an amount
sufficient in the opinion of a nationally recognized firm of independent
certified public accountants to pay the principal of, and each installment of
interest, if any, on the Outstanding Notes. With respect to clause (B), the
obligations under the Indenture other than with respect to such covenants and
the Events of Default other than the Events of Default relating to such
covenants shall remain in full force and effect. Such trust may only be
established if, among other things (i) with respect to clause (A), the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling or there has been a change in law, which in the opinion of Counsel
provides that Holders of the Notes will not recognize gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge and
will be subject to Federal income tax on the same amount, in the same manner and
at the same times as would have been the case if such deposit, defeasance and
discharge had not occurred; or, with respect to clause (B), the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
the Notes will not recognize gain or loss for Federal income tax purposes as a
result of such deposit and defeasance and will be subject to Federal income tax
on the same amount, in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred; (ii) no Event of
Default or event that with the passing of time or the giving of notice, or both,
shall constitute an Event of Default shall have occurred or be continuing; (iii)
the Company has delivered to the Trustee an Opinion of Counsel to the effect
that such deposit shall not cause the Trustee or the trust so created to be
subject to the Investment Company Act of 1940; and (iv) certain other customary
conditions precedent are satisfied. (Article Eleven)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Outstanding Notes; provided, however, that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Note affected thereby, (a) change the Stated Maturity of the
principal of, or any installment of interest on, any Note, (b) reduce the
principal amount of, or the rate of interest on, any Note, (c) change the place
or currency of payment of principal of, or interest on, any Note, (d) impair the
right to institute suit for the enforcement of any payment on or with respect to
any Note, (e) reduce the above-stated percentage of Outstanding Notes necessary
to modify or
17
<PAGE> 19
amend the Indenture or (f) reduce the percentage of aggregate principal amount
of Outstanding Notes necessary for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults. (Section 902)
The Holders of a majority in aggregate principal amount of the Outstanding
Notes may waive compliance by the Company with certain restrictive provisions of
the Indenture. (Section 1010) The Holders of a majority in aggregate principal
amount of the Outstanding Notes may waive any past default under the Indenture,
except a default in the payment of principal or interest. (Section 513)
REGARDING THE TRUSTEE
The Indenture provides that, except during the continuance of an Event of
Default, the Trustee will perform only such duties as are specifically set forth
in the Indenture. During the existence of an Event of Default, the Trustee will
exercise such rights and powers vested in it under the Indenture and use the
same degree of care and skill in its exercise as a prudent person would exercise
under the circumstances in the conduct of such person's own affairs. (Sections
601 and 603)
The Indenture and provisions of the Trust Indenture Act incorporated by
reference therein contain limitations on the rights of the Trustee, should it
become a creditor of the Company, to obtain payment of claims in certain cases
or to realize on certain property received by it in respect of any such claim as
security or otherwise. (Section 613) The Trustee is one of the lenders party to
the Company's unused bank lines of credit and is permitted to engage in other
transactions with the Company or any Affiliate, provided, however, that, if it
acquires any conflicting interest (as defined in the Indenture or in the Trust
Indenture Act), it must eliminate such conflict or resign. (Section 608)
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement, the Company has agreed to sell to each of the Underwriters named
below, and each of the Underwriters has severally agreed to purchase, the
principal amount of the Notes set forth opposite its name below:
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT
UNDERWRITER OF NOTES
----------- ---------
<S> <C>
Goldman, Sachs & Co. ................................................ $
Lehman Brothers Inc. ................................................
J.P. Morgan Securities Inc. .........................................
------------
Total...................................................... $250,000,000
============
</TABLE>
Under the terms and conditions of the Underwriting Agreement, the
Underwriters are committed to take and pay for all of the Notes, if any are
taken.
The Underwriters propose to offer the Notes in part directly to the public
at the initial public offering price set forth on the cover page of this
Prospectus and in part to certain securities dealers at such price less a
concession of % of the principal amount of the Notes. The Underwriters may
allow, and such dealer may reallow, a concession not to exceed % of the
principal amount of the Notes to certain brokers and dealers. After the Notes
are released for sale to the public, the offering price and other selling terms
may from time to time be varied by the Underwriters.
The Notes are a new issue of securities with no established trading market.
The Company has been advised by the Underwriters that they intend to make a
market in the Notes but are not obligated to do so and may discontinue market
making at any time without notice. No assurance can be given as to the liquidity
of the trading market for the Notes.
18
<PAGE> 20
Settlement for the Notes will be made in immediately available funds and
all secondary trading in the Notes will settle in immediately available funds.
See "Description of Notes -- Same-Day Settlement and Payment".
Certain of the Underwriters perform investment banking and other capital
markets services for the Company in the normal course of business.
The Company has agreed to indemnify the several Underwriters against
certain liabilities, including liabilities under the Securities Act of 1933.
VALIDITY OF THE NOTES
The validity of the Notes offered hereby will be passed upon for the
Company by Robert G. Kuhbach, Esq., Vice President, General Counsel and
Secretary of the Company, and for the Underwriters by Sullivan & Cromwell, New
York, New York. At the date of this Prospectus, Mr. Kuhbach was the owner of
4,000 shares of the Company's common stock and held options to acquire 24,086
shares of such common stock.
EXPERTS
The consolidated financial statements and related supplemental schedule of
the Company incorporated by reference in this Prospectus from the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 have been
audited by KPMG Peat Marwick LLP, independent auditors, as stated in their
report which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
The financial statements of Imaje, S.A. for the year ended and as at 31
December 1994 incorporated by reference in this Prospectus from the Company's
Current Report on Form 8-K dated September 29, 1995, which was filed on October
16, 1995 and amended on October 25, 1995, have been audited by Ernst & Young
Audit, statutory auditors, as stated in their general report which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
As reported in the Company's Current Report on Form 8-K dated August 7,
1995, which was filed on August 11, 1995 and amended on August 17, 1995, the
Company has engaged Coopers & Lybrand L.L.P. as its independent accountants to
audit its financial statements for the fiscal year ending December 31, 1995.
This change of accountants was not the result of any disagreement with KPMG Peat
Marwick LLP.
19
<PAGE> 21
- ---------------------------------------------------------
- ---------------------------------------------------------
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
DESCRIBED IN THIS PROSPECTUS OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER
TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION
IS UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information................... 2
Incorporation of Certain Documents by
Reference............................. 2
The Company............................. 3
Use of Proceeds......................... 5
Capitalization.......................... 5
Selected Consolidated Financial Data.... 6
Management's Discussion and Analysis of
Financial Condition and Results of
Operations............................ 8
Description of the Notes................ 11
Underwriting............................ 18
Validity of the Notes................... 19
Experts................................. 19
</TABLE>
- ---------------------------------------------------------
- ---------------------------------------------------------
- ---------------------------------------------------------
- ---------------------------------------------------------
$250,000,000
DOVER CORPORATION
% NOTES DUE , 2005
------------------
[LOGO]
------------------
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS
J.P. MORGAN SECURITIES INC.
- ---------------------------------------------------------
- ---------------------------------------------------------
<PAGE> 22
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses payable by the Registrant in
connection with the sale, issuance and distribution of the Notes being
registered, other than underwriting discounts and commissions. All amounts are
estimates except the Securities and Exchange Commission's registration fee:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee...................... $ 86,207
Printing expenses........................................................ 10,000*
Legal fees and expenses.................................................. 80,000*
Accounting fees and expenses............................................. 30,000*
Blue Sky fees and expenses (including counsel fees)...................... 16,000*
Rating agency fees and expenses.......................................... 88,000*
Trustee's fees and expenses.............................................. 22,000*
Miscellaneous expenses................................................... 17,793*
--------
Total.......................................................... $350,000
========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is a Delaware corporation. Section 145 of the Delaware
General Corporation Law generally provides that a corporation is empowered to
indemnify any person who is or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding by reason of the
fact that he is or was a director, officer, employee or agent of the Registrant
or is or was serving, at the request of the Registrant, in any of such
capacities of another corporation or other enterprise, if such director,
officer, employee or agent acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Registrant, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. This statute describes in detail the right of
the Registrant to indemnify any such person. Article XII of the By-Laws of the
Company provides for indemnification of directors, officers, employees and
agents of the Company for expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement with respect to threatened, pending or completed
actions, suits or proceedings to the full extent permitted under the laws of the
State of Delaware. Article SEVENTEENTH of the Restated Certificate of
Incorporation of the Registrant, as amended, eliminates the liability of
directors to the fullest extent permitted under the above-referenced Delaware
statute.
The Company has in effect a policy insuring itself, its subsidiaries and
their respective directors and officers, to the extent they may be required or
permitted to indemnify such officers or directors, against certain liabilities
arising from acts or omissions in the discharge of their duties that they shall
become legally obligated to pay. The policy is for a period ending November 5,
1995 (which is expected to be renewed) and provides a maximum coverage of $30
million and (subject to certain enumerated exclusions) covers 100% of all losses
above the deductible amount of $5,000 per director or officer.
II-1
<PAGE> 23
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------ ----------------------
<C> <C> <S>
1 -- Form of Underwriting Agreement
4 -- Form of Indenture between the Registrant and The First National Bank of Chicago,
as Trustee, relating to the Notes (including the form of the Notes)
5 -- Opinion of Robert G. Kuhbach, Esq., Vice President, General Counsel and Secretary
of the Registrant, as to the validity of the Notes being registered hereby
12 -- Computation of ratio of earnings to fixed charges
23.1 -- Consent of Robert G. Kuhbach, Esq. (contained in his opinion filed as Exhibit 5 to
this Registration Statement)
23.2 -- Consent of KPMG Peat Marwick LLP
23.3 -- Consent of Ernst & Young Audit
24 -- Powers of Attorney (included on the signature pages of this Registration
Statement)
25 -- Statement of Eligibility of The First National Bank of Chicago, as Trustee, on
Form T-1
</TABLE>
ITEM 17. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(2) That, for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared
effective.
(3) That, for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above, 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 Securities Act of 1933 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 persons
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
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-2
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on October 26, 1995.
DOVER CORPORATION
By THOMAS L. REECE
----------------------------------
THOMAS L. REECE
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below hereby constitutes and appoints Thomas L. Reece, John F. McNiff and Robert
G. Kuhbach, and each of them, with full power of substitution and
resubstitution, as attorneys or attorney to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file with the Securities and Exchange Commission the same, with all exhibits
thereto, and any and all applications or other documents to be filed with the
Securities and Exchange Commission pertaining thereto, with full power and
authority to do and perform any and all acts and things whatsoever required and
necessary to be done in the premises, as fully to all intents and purposes as
the undersigned could do if personally present, hereby ratifying and confirming
all that said attorneys, and any of them and any such substitute, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on October 26, 1995.
<TABLE>
<CAPTION>
NAME TITLE
---- -----
<S> <C>
THOMAS L. REECE President, Chief Executive Officer and Director
- ---------------------------------------- (Principal Executive Officer)
THOMAS L. REECE
JOHN F. MCNIFF Vice President -- Finance (Principal Financial
- ---------------------------------------- Officer)
JOHN F. MCNIFF
ALFRED SUESSER Controller (Principal Accounting Officer)
- ----------------------------------------
ALFRED SUESSER
DAVID H. BENSON Director
- ----------------------------------------
DAVID H. BENSON
MAGALEN O. BRYANT Director
- ----------------------------------------
MAGALEN O. BRYANT
JEAN-PIERRE M. ERGAS Director
- ----------------------------------------
JEAN-PIERRE M. ERGAS
</TABLE>
II-3
<PAGE> 25
<TABLE>
<CAPTION>
NAME TITLE
---- -----
<S> <C>
RODERICK J. FLEMING Director
- ----------------------------------------
RODERICK J. FLEMING
JOHN F. FORT Director
- ----------------------------------------
JOHN F. FORT
JAMES L. KOLEY Director
- ----------------------------------------
JAMES L. KOLEY
ANTHONY J. ORMSBY Director
- ----------------------------------------
ANTHONY J. ORMSBY
GARY L. ROUBOS Director
- ----------------------------------------
GARY L. ROUBOS
Director
- ----------------------------------------
DAVID G. THOMAS
JERRY W. YOCHUM Director
- ----------------------------------------
JERRY W. YOCHUM
</TABLE>
II-4
<PAGE> 26
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NUMBER DESCRIPTION OF EXHIBIT NO.
- ------ ---------------------- ----
<C> <C> <S> <C>
1 -- Form of Underwriting Agreement
4 -- Form of Indenture between the Registrant and The First National Bank of
Chicago, as Trustee, relating to the Notes (including the form of the
Notes)
5 -- Opinion of Robert G. Kuhbach, Esq., Vice President, General Counsel and
Secretary of the Registrant, as to the validity of the Notes being
registered hereby
12 -- Computation of ratio of earnings to fixed charges
23.1 -- Consent of Robert G. Kuhbach, Esq. (contained in his opinion filed as Exhibit
5 to this Registration Statement)
23.2 -- Consent of KPMG Peat Marwick LLP
23.3 -- Consent of Ernst & Young Audit
24 -- Powers of Attorney (included on the signature pages of this Registration
Statement)
25 -- Statement of Eligibility of The First National Bank of Chicago, as Trustee,
on Form T-1
</TABLE>
<PAGE> 1
S&C Draft of October 24, 1995
DOVER CORPORATION
$250,000,000 ____% NOTES due ____________, 2005
---------------------------------
Underwriting Agreement
________ __, 1995
Goldman, Sachs & Co.,
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Dover Corporation, a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions stated herein, to issue and sell to you an aggregate
of $250,000,000 principal amount of the ___% Notes due ________, 2005 (the
"Securities").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 33-....) in respect
of the Securities has been filed with the Securities and Exchange Commission
(the "Commission"); such registration statement and any post-effective
amendment thereto, each in the form heretofore delivered to you, have been
declared effective by the Commission in such form; no other document with
respect to such registration statement or document incorporated by reference
therein has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of such registration statement has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), is hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statement, including all exhibits thereto
but excluding Form T-1 and including (i) the information contained in the
form of final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance
<PAGE> 2
with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the registration statement at the time it was declared effective
and (ii) the documents incorporated by reference in the prospectus contained
in the registration statement at the time such part of the registration
statement became effective, each as amended at the time such part of the
registration statement became effective, are hereinafter collectively called
the "Registration Statement"; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the rules and regulations of the
Commission thereunder, and did 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; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Goldman, Sachs & Co.
expressly for use therein;
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents 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; and any
further documents so filed and incorporated by reference in the Prospectus
or any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder
and 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 not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in
2
<PAGE> 3
conformity with information furnished in writing to the Company by an
Underwriter through Goldman, Sachs & Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, 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 not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Goldman, Sachs & Co.
expressly for use therein;
(e) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated
by reference in the Prospectus any material loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been any
change in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth
or contemplated in the Prospectus;
(f) Each of the consolidated balance sheets included in the Company's
quarterly reports on Form 10-Q for the quarters ended March 31, 1995, June
30, 1995 and September 30, 1995 (the "Form 10-Qs") (including any related
notes and schedules) fairly presents the consolidated financial position of
the Company and its subsidiaries as of its date and each of the consolidated
statements of earnings, statements of retained earnings and statements of
cash flows included in the Form 10-Qs (including any related notes and
schedules) fairly presents the results of operations, retained earnings and
changes in financial position, as the case may be, of the Company and its
subsidiaries for the periods set forth therein (subject to normal year-end
audit adjustments which will not be material in amount or effect), in each
case in accordance with generally accepted accounting principles
consistently applied during the periods involved, except as may be noted
therein;
(g) The unaudited balance sheet of Imaje, S.A. ("Imaje") at June 30,
1995 included in the Company's Form 8-K dated September 29, 1995 as amended
by Form 8-K/A No. 1 (as amended, the "Form 8-K") fairly presents the
consolidated financial position of Imaje and its subsidiaries as of its date
and each of the consolidated income statement for the six months ended June
30, 1995 and cash flow statement for the six months ended June 30, 1995
included in the Form 8-K (including any related notes and schedules) fairly
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<PAGE> 4
presents the results of operations and changes in financial position, as the
case may be, of Imaje and its subsidiaries for the periods set forth therein
(subject to normal year-end audit adjustments which will not be material in
amount or effect), in each case in accordance with International Accounting
Standards consistently applied during the periods involved, except as may be
noted therein;
(h) The Company and its subsidiaries have good and marketable title to
all real property which at the date hereof constitutes a "Principal
Property" as defined in the Prospectus under the caption "Description of the
Notes" and good and marketable title to all personal property owned by them,
in each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its subsidiaries;
and any real property and buildings held under lease by the Company and its
subsidiaries which if owned by the Company would constitute a Principal
Property are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by the Company
and its subsidiaries;
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification, or
is subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction; and each Significant Subsidiary
of the Company (as defined in paragraph (p) of this Section 1) has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation;
(j) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and all of such shares of capital stock
that are owned directly or indirectly by the Company are owned free and
clear of any material liens, encumbrances, equities or claims;
(k) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
indenture to be dated as of ................, 1995 (the "Indenture") between
the Company and First National Bank of Chicago, as Trustee (the "Trustee"),
under which they are to be issued, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has been
duly authorized and duly qualified under the Trust Indenture Act and, when
executed and delivered by the Company and the Trustee, will constitute a
valid and legally binding instrument, enforceable in accordance
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<PAGE> 5
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will conform to the descriptions thereof in the
Prospectus;
(l) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the Indenture,
except the registration under the Act of the Securities, such as have been
obtained under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(m) Neither the Company nor any of its subsidiaries is in violation of
its Certificate of Incorporation or By-laws or in default in the performance
or observance of any material obligation, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound;
(n) The statements set forth in the Prospectus under the caption
"Description of the Notes", insofar as they purport to constitute a summary
of the terms of the Securities and under the caption "Underwriting", insofar
as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(o) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the current or future financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(p) The Company is not and, after giving effect to the offering and
sale of the Securities, will not be an "investment company" or an entity
"controlled" by an
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<PAGE> 6
"investment company", as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act");
(q) KPMG Peat Marwick, LLP, who have certified certain financial
statements of the Company and its subsidiaries and Coopers & Lybrand LLP,
the current auditors of the Company, are each independent public accountants
as required by the Act and the rules and regulations of the Commission
thereunder; and
(r) Each of the subsidiaries of the Company listed on Schedule II
hereto is referred to herein as a "Significant Subsidiary". Other than the
Significant Subsidiaries, there is no subsidiary of the Company which
together with its subsidiaries accounted for more than 5% of either (i) the
consolidated assets of the Company at either December 31, 1994 or September
30, 1995 or (ii) the operating profit of the Company for either the year
ended December 31, 1994 or the nine months ended September 30, 1995.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price of .....% of the principal amount thereof, plus accrued
interest, if any, from ...................., 1995 to the Time of Delivery
hereunder, the principal amount of Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Underwriters propose to offer the Securities for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder will
be represented by one or more definitive global Securities in book-entry form
which will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian. The Company will deliver the
Securities to Goldman, Sachs & Co., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
certified or official bank check or checks, payable to the order of the Company
in New York Clearing House (next day) funds, by causing DTC to credit the
Securities to the account of Goldman, Sachs & Co. at DTC. The Company will cause
the certificates representing the Securities to be made available to Goldman,
Sachs & Co. for checking at least twenty-four hours prior to the Time of
Delivery (as defined below) at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be 9:30 a.m., New York City time, on ....................., 1995 or such other
time and date as Goldman, Sachs & Co. and the Company may agree upon in
writing. Such time and date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Underwriters
pursuant to Section 7(i) hereof, will be delivered at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004 (the "Closing Location"),
and the Securities will be delivered at the Designated Office, all at the Time
of Delivery. A meeting will be held at the Closing Location at 2:00 p.m., New
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<PAGE> 7
York City time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York City are generally authorized or obligated by
law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus prior to the Time of
Delivery which shall be disapproved by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or sale of
the Securities; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or suspending any
such qualification, to promptly use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you may request and to comply with such laws so as
to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day
next succeeding the date of this Agreement and from time to time, to furnish the
Underwriters with copies of the Prospectus in such quantities as you may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an untrue
statement of a material
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<PAGE> 8
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made
when such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange Act or
the Trust Indenture Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and to
any dealer in securities as many copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus in connection with sales of any
of the Securities at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many copies as you may request of an amended
or supplemented Prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c)), an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing to and
including the later of the Time of Delivery and such earlier time as you may
notify the Company, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder any securities of the Company that are
substantially similar to the Securities;
(f) To furnish to the holders of the Securities as soon as practicable
after the end of each fiscal year an annual report (including a balance sheet
and statements of income, stockholders' equity and cash flows of the Company and
its consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), consolidated summary financial information of
the Company and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished by the Company to stockholders,
and to deliver to you (i) as soon as they are available, copies of any reports
and financial statements furnished by the Company to or filed with the
Commission or any national securities exchange on which the Securities or any
class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the Company as
you may from time to time reasonably request (such financial statements to be on
a consolidated basis to the extent the accounts of the Company and its
subsidiaries are consolidated in reports furnished to its stockholders generally
or to the Commission); and
(h) To use the net proceeds received by it from the sale of the Securities
pursuant to this Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds";
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<PAGE> 9
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, the Indenture, the Blue Sky and Legal
Investment Memoranda, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the Securities; (iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities laws as provided in
Section 5(b) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the
Blue Sky and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) the cost of preparing the
Securities; (vi) the fees and expenses of the Trustee and any agent of the
Trustee and the fees and disbursements of counsel for the Trustee in connection
with the Indenture and the Securities; and (vii) all other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of
their counsel, transfer taxes on resale of any of the Securities by them, and
any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be subject, in
their discretion, to the condition that all representations and warranties and
other statements of the Company herein are, at and as of the Time of Delivery,
true and correct, the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof;
no stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to your reasonable satisfaction;
(b) Sullivan & Cromwell, counsel for the Underwriters, shall have furnished
to you such written opinion or opinions (drafts of which are attached hereto as
Annex II(a) hereto), dated the Time of Delivery, with respect to the
incorporation of the Company, this Agreement, the validity of the Indenture and
the Securities, the Registration Statement, the Prospectus and such other
related matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
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<PAGE> 10
(c) Robert G. Kuhbach, General Counsel of the Company, shall have furnished
to you his written opinion (a draft of which is attached hereto as Annex II(b)
hereto), dated the Time of Delivery, in form and substance satisfactory to
Goldman, Sachs & Co., to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of Delaware, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus;
(iii) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company, provided that
such counsel shall state that he believes that both you and he are justified
in relying upon such opinions and certificates);
(iv) Each Significant Subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation; and all of the issued shares
of capital stock of each such Significant Subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable, and
(except for directors' qualifying shares) are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities or
claims (such counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of matters of fact
upon certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that he believes that both you and he are
justified in relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries; and, to the best
of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) This Agreement has been duly authorized, executed and delivered
by the Company;
(vii) The Securities have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture; and the Securities and the Indenture conform to the descriptions
thereof in the Prospectus;
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<PAGE> 11
(viii) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding instrument,
enforceable against the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture has been duly qualified under
the Trust Indenture Act;
(ix) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture and this
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject, nor will such actions result in any violation
of the provisions of the Certificate of Incorporation or By-laws of the
Company or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties;
(x) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the Indenture,
except such as have been obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters;
(xi) Neither the Company nor any of the Significant Subsidiaries is
in violation of its Certificate of Incorporation or By-laws or in default in
the performance or observance of any material obligation, covenant or
condition contained in any material indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or
by which it or any of its properties may be bound;
(xii) The statements set forth in the Prospectus under the caption
"Description of the Notes", insofar as they purport to constitute a summary
of the terms of the Securities, and under the caption "Underwriting",
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(xiii) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act; and
(xiv) The documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior to the
Time of Delivery (other than the financial information therein, as to which
such counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Exchange Act
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<PAGE> 12
and the rules and regulations of the Commission thereunder; and such counsel
has no reason to believe that any of such documents, when such documents
became effective or were so filed, as the case may be, contained, an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such documents were so filed, not
misleading; and
(xv) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the Time of
Delivery (other than the financial information therein, as to which such
counsel need express no opinion) comply as to form in all material respects
with the requirements of the Act and the Trust Indenture Act and the rules
and regulations thereunder; although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (xii) of this Section 7(c), such
counsel has no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial information therein,
as to which such counsel need express no opinion) 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, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to the Time of Delivery (other
than the financial information therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading
or that, as of the Time of Delivery, either the Registration Statement or
the Prospectus or any further amendment or supplement thereto made by the
Company prior to the Time of Delivery (other than the financial information
therein, as to which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and such counsel does not know
of any amendment to the Registration Statement required to be filed or of
any contracts or other documents of a character required to be filed as an
exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in the
Registration Statement or the Prospectus which are not filed or incorporated
by reference or described as required;
(d) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at the Time of Delivery, Coopers & Lybrand LLP
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to Goldman, Sachs & Co., to
the effect set forth in Annex I hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other
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<PAGE> 13
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates as of which
information is given in the Prospectus there shall not have been any change in
the capital stock or long-term debt of the Company or any of its subsidiaries or
any change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus, the effect of which, in any such case
described in Clause (i) or (ii), is in the judgment of the Goldman, Sachs & Co.
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the terms and in
the manner contemplated in the Prospectus;
(f) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's debt securities by any "nationally recognized
statistical rating organization", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt securities;
(g) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange; (ii) a suspension or material
limitation in trading in the Company's securities on The New York Stock
Exchange; (iii) a general moratorium on commercial banking activities declared
by either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such event
specified in this Clause (iv) in the judgment of Goldman, Sachs & Co. makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities on the terms and in the manner contemplated in the Prospectus;
and
(h) The Company shall have furnished or caused to be furnished to you at the
Time of Delivery certificates of officers of the Company satisfactory to
Goldman, Sachs & Co. as to the accuracy of the representations and warranties of
the Company herein at and as of such Time of Delivery, as to the performance by
the Company of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as you may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
13
<PAGE> 14
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Goldman, Sachs & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Goldman, Sachs & Co.
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
14
<PAGE> 15
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
15
<PAGE> 16
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your discretion
arrange for you or another party or other parties to purchase such Securities on
the terms contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the principal
amount of Securities which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the principal amount of Securities which such Underwriter agreed
to purchase hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal amount
of all the Securities, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Securities of a defaulting Underwriter or Underwriters, then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or
16
<PAGE> 17
made by or on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company, or any officer or
director or controlling person of the Company, and shall survive delivery of and
payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, the
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements of
counsel, reasonably incurred by the Underwriters in making preparations for the
purchase, sale and delivery of the Securities, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 6
and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Goldman, Sachs & Co. on behalf of you as the
Underwriters.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you in care of Goldman, Sachs & Co., 85 Broad Street,
New York, New York 10004, Attention: Registration Department; and if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
17
<PAGE> 18
16. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one and the same
instrument.
18
<PAGE> 19
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of Agreement among
Underwriters, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
Dover Corporation
By:
-----------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Lehman Brothers Inc.
J.P. Morgan Securities Inc.
By:
-----------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Underwriters
19
<PAGE> 20
SCHEDULE I
<TABLE>
<CAPTION>
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ------------
<S> <C>
Goldman, Sachs & Co. $
Lehman Brothers Inc.
J.P. Morgan Securities Inc. ------------
Total $250,000,000
============
</TABLE>
20
<PAGE> 21
SCHEDULE II
<TABLE>
<CAPTION>
Subsidiary Jurisdiction of Incorporation
---------- -----------------------------
<S> <C>
BTD Holdings, Inc.
Dover Diversified, Inc.
Dover Elevator Company
Dover Elevator International, Inc.
Dover Industries, Inc.
Dover Reserves Inc.
Dover Technologies International, Inc.
The Heil Co.
Tranter, Inc.
Universal Instruments Corporation
</TABLE>
21
<PAGE> 22
ANNEX I
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statement of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Company's quarterly report on Form 10-Q for the quarter
ended September 30, 1995 (the "Third Quarter 10-Q") incorporated by
reference into the Prospectus as indicated in their report thereon
copies of which have been separately furnished to the Underwriters; and
on the basis of specified procedures including inquiries of officials
of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (iv)(A)(i) below comply
as to form in the related in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the Exchange
Act and the related published rules and regulations;
(iii) They have compared certain information in the Prospectus
with the disclosure requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Item 503(d) of Regulation S-K;
(iv) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the Third
Quarter 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable
accounting
1
<PAGE> 23
requirements of the Exchange Act and the related published
rules and regulations, or (ii) any material modifications
should be made to the unaudited consolidated statements of
income, consolidated balance sheets and consolidated statements
of cash flows included in the Third Quarter 10-Q incorporated
by reference in the Prospectus, for them to be in conformity
with generally accepted accounting principles;
(B) any unaudited pro forma consolidated condensed
financial statements included or incorporated by reference in
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act
and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(C) as of a specified date not more than five days
prior to the date of such letter, there have been any changes
in the consolidated capital stock (other than issuances of
capital stock upon exercise of options and stock appreciation
rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were
outstanding on the date of the latest balance sheet included or
incorporated by reference in the Prospectus) or any increase in
the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current
assets or stockholders' equity or other items specified by
Goldman, Sachs & Co., or any increases in any items specified
by Goldman, Sachs & Co., in each case as compared with amounts
shown in the latest balance sheet included or incorporated by
reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
and
(D) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (D)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by Goldman,
Sachs & Co., or any increases in any items specified by
Goldman, Sachs & Co., in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by Goldman, Sachs &
Co., except in each case for increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(v) In addition to the limited procedures, inspection of
minute books, inquiries and other procedures referred to in paragraphs
(ii) and (iv) above, they have carried out certain specified
procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information at September 30, 1995 and for the
three- and nine-month periods ended September 30, 1995 specified by
Goldman, Sachs & Co. which are derived from the general accounting
records of the Company and its
2
<PAGE> 24
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference) or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by Goldman, Sachs &
Co. or in documents incorporated by reference in the Prospectus
specified by Goldman, Sachs & Co., and have compared certain of such
amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to be
in agreement.
3
<PAGE> 1
S&C Draft of October 24, 1995
- --------------------------------------------------------------------------------
DOVER CORPORATION
TO
THE FIRST NATIONAL BANK OF CHICAGO
Trustee
-----------------
Indenture
November __, 1995
-----------------
$250,000,000
___% Notes due _________, 2005
- --------------------------------------------------------------------------------
<PAGE> 2
DOVER CORPORATION
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C> <C>
Section 310(a)(1) ..................................................... 609
(a)(2) ..................................................... 609
(a)(3) ..................................................... Not
Applicable
(a)(4) ..................................................... Not
Applicable
(b) ..................................................... 608
610
Section 311(a) ..................................................... 613
(b) ..................................................... 613
Section 312(a) ..................................................... 701
702(a)
(b) ..................................................... 702(b)
(c) ..................................................... 702(c)
Section 313(a) ..................................................... 703(a)
(a)(4) ..................................................... 101
1004
(b) ..................................................... 703(a)
(c) ..................................................... 703(a)
(d) ..................................................... 703(b)
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
(b) ..................................................... 602
(c) ..................................................... 601
(d) ..................................................... 601
(e) ..................................................... 514
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C> <C>
Section 316(a) ..................................................... 101
(a)(1)(A) ..................................................... 502
512
(a)(1)(B) ..................................................... 513
(a)(2) ..................................................... Not
Applicable
(b) ..................................................... 508
(c) ..................................................... 104(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.
-ii-
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Parties...................................................................... 1
Recitals Of The Company...................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.................................................... 1
Act........................................................... 2
Affiliate..................................................... 2
Attributable Debt............................................. 2
Authenticating Agent.......................................... 2
Board of Directors............................................ 2
Board Resolution.............................................. 3
Business Day.................................................. 3
Capital Stock................................................. 3
Commission.................................................... 3
Company....................................................... 3
Company Request............................................... 3
Corporate Trust Office........................................ 3
corporation................................................... 3
Defaulted Interest............................................ 3
Depositary.................................................... 3
Event of Default.............................................. 4
Exchange Act.................................................. 4
Funded Debt................................................... 4
Global Security............................................... 4
Holder........................................................ 4
Indenture..................................................... 4
Interest Payment Date......................................... 4
Lien.......................................................... 4
Maturity...................................................... 5
Officers...................................................... 5
Opinion of Counsel............................................ 5
Outstanding................................................... 5
Paying Agent.................................................. 6
Person........................................................ 6
Predecessor Security.......................................... 6
Principal Property............................................ 6
Regular Record Date........................................... 7
Restricted Subsidiary......................................... 7
Sale and Leaseback Transaction................................ 7
</TABLE>
- -----------
Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
-i-
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Security Register; Security Registrar........................ 7
Special Record Date.......................................... 7
Stated Maturity.............................................. 7
Subsidiary................................................... 7
Trustee...................................................... 8
Trust Indenture Act.......................................... 8
U.S. Government Obligations.................................. 8
Vice President............................................... 8
SECTION 102. Compliance Certificates and Opinions.......................... 8
SECTION 103. Form of Documents Delivered to Trustee........................ 9
SECTION 104. Acts of Holders; Record Dates................................. 10
SECTION 105. Notices, Etc., to Trustee and Company......................... 11
SECTION 106. Notice to Holders; Waiver..................................... 11
SECTION 107. Conflict with Trust Indenture Act............................. 12
SECTION 108. Effect of Headings and Table of Contents...................... 12
SECTION 109. Successors and Assigns........................................ 12
SECTION 110. Separability Clause........................................... 13
SECTION 111. Benefits of Indenture......................................... 13
SECTION 112. Governing Law................................................. 13
SECTION 113. Legal Holidays................................................ 13
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally............................................... 13
SECTION 202. Form of Face of Security...................................... 14
SECTION 203. Form of Reverse of Security................................... 16
</TABLE>
- -----------
Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
-ii-
<PAGE> 6
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
SECTION 204. Form of Trustee's Certificate of
Authentication................................................ 18
SECTION 205. Form of Legend for Global Securities.......................... 18
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms............................................... 18
SECTION 302. Denominations................................................. 19
SECTION 303. Execution, Authentication, Delivery
and Dating................................................... 19
SECTION 304. Temporary Securities.......................................... 20
SECTION 305. Registration, Registration of Transfer and
Exchange..................................................... 21
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities............................................ 23
SECTION 307. Payment of Interest; Interest
Rights Preserved............................................. 24
SECTION 308. Persons Deemed Owners......................................... 25
SECTION 309. Cancellation.................................................. 26
SECTION 310. Computation of Interest....................................... 26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture....................... 26
SECTION 402. Application of Trust Money.................................... 28
</TABLE>
- -----------
Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
-iii-
<PAGE> 7
<TABLE>
<CAPTION>
Page
----
ARTICLE FIVE
REMEDIES
<S> <C> <C>
SECTION 501. Events of Default................................................ 28
SECTION 502. Acceleration of Maturity; Rescission
and Annulment................................................... 31
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee...................................... 32
SECTION 504. Trustee May File Proofs of Claim................................. 33
SECTION 505. Trustee May Enforce Claims
Without Possession of Securities................................ 33
SECTION 506. Application of Money Collected................................... 34
SECTION 507. Limitation on Suits.............................................. 34
SECTION 508. Unconditional Right of Holders to
Receive Principal and Interest.................................. 35
SECTION 509. Restoration of Rights and Remedies............................... 35
SECTION 510. Rights and Remedies Cumulative................................... 36
SECTION 511. Delay or Omission Not Waiver..................................... 36
SECTION 512. Control by Holders............................................... 36
SECTION 513. Waiver of Past Defaults.......................................... 36
SECTION 514. Undertaking for Costs............................................ 37
SECTION 515. Waiver of Stay or Extension Laws................................. 37
</TABLE>
- -----------
Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
-iv-
<PAGE> 8
<TABLE>
<CAPTION>
Page
----
ARTICLE SIX
THE TRUSTEE
<S> <C> <C>
SECTION 601. Certain Duties and Responsibilities.............................. 38
SECTION 602. Notice of Defaults............................................... 38
SECTION 603. Certain Rights of Trustee........................................ 38
SECTION 604. Not Responsible for Recitals
or Issuance of Securities....................................... 40
SECTION 605. May Hold Securities.............................................. 40
SECTION 606. Money Held in Trust.............................................. 40
SECTION 607. Compensation and Reimbursement................................... 40
SECTION 608. Disqualification; Conflicting Interests.......................... 41
SECTION 609. Corporate Trustee Required; Eligibility.......................... 41
SECTION 610. Resignation and Removal;
Appointment of Successor........................................ 42
SECTION 611. Acceptance of Appointment by Successor........................... 43
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business....................................... 44
SECTION 613. Preferential Collection
of Claims Against Company....................................... 44
SECTION 614. Appointment of Authenticating Agent.............................. 44
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee
Names and Addresses of Holders.................................. 46
</TABLE>
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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<PAGE> 9
<TABLE>
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<S> <C> <C>
SECTION 702. Preservation of Information;
Communications to Holders....................................... 47
SECTION 703. Reports by Trustee............................................... 47
SECTION 704. Reports by Company............................................... 48
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms........................................... 48
SECTION 802. Successor Substituted............................................ 50
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures
Without Consent of Holders...................................... 51
SECTION 902. Supplemental Indentures
with Consent of Holders......................................... 51
SECTION 903. Execution of Supplemental Indentures............................. 52
SECTION 904. Effect of Supplemental Indentures................................ 52
SECTION 905. Conformity with Trust Indenture Act.............................. 52
SECTION 906. Reference in Securities to
Supplemental Indentures......................................... 52
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal and Interest............................... 53
</TABLE>
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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<TABLE>
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<S> <C> <C>
SECTION 1002. Maintenance of Office or Agency................................. 53
SECTION 1003. Money for Security Payments
to Be Held in Trust............................................. 54
SECTION 1004. Statement by Officers as to Default............................. 55
SECTION 1005. Existence....................................................... 55
SECTION 1006. Maintenance of Properties....................................... 55
SECTION 1007. Payment of Taxes and Other Claims............................... 56
SECTION 1008. Limitation on Secured Debt...................................... 57
SECTION 1009. Limitation on Sale and Leaseback
Transactions.................................................... 58
SECTION 1010. Waiver of Certain Covenants..................................... 56
ARTICLE ELEVEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1101. Company's Option to Effect Defeasance
or Covenant Defeasance.......................................... 57
SECTION 1102. Defeasance and Discharge........................................ 57
SECTION 1103. Covenant Defeasance............................................. 57
SECTION 1104. Conditions to Defeasance or
Covenant Defeasance............................................. 58
SECTION 1105. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.................................. 61
SECTION 1106. Reinstatement................................................... 62
TESTIMONIUM.................................................................... 63
</TABLE>
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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<TABLE>
<CAPTION>
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<S> <C>
SIGNATURES AND SEALS............................................................. 63
ACKNOWLEDGMENTS.................................................................. 64
</TABLE>
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
-viii-
<PAGE> 12
INDENTURE, dated as of ________________, 1995, between Dover
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
280 Park Avenue, New York, New York 10017 and The First National Bank of
Chicago, a national banking association duly organized and existing under the
laws of the United States of America as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its ____% Notes due _______________, 2005 (herein called the "Securities") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and 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, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
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;
<PAGE> 13
(2) all other 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, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; and
(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.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"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.
"Attributable Debt" means, with respect to a lease in a Sale
and Leaseback Transaction, the total net amount of rent required to be paid
during the remaining primary term of such lease, discounted at a rate per annum
equal to the interest rate on the Securities, calculated in accordance with
generally accepted accounting practices. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding amounts
required to be paid on account of insurance, taxes, assessments, utility,
operating and labor costs and similar charges.
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<PAGE> 14
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"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 or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York are authorized or obligated by law or executive order to close.
"Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock or other equity participation, including partnership interests, whether
general or limited, of such Person.
"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.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"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
Vice Chairman of the Board, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount
of assets of the Company and its Subsidiaries after deducting (i) all
liabilities other than deferred income taxes, commercial paper, short-term bank
-3-
<PAGE> 15
Debt, Funded Debt and shareholders' equity, and (ii) all goodwill and other
intangibles.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which at the date hereof is 1 First National Plaza, 0126, Chicago,
Illinois 60670-0126.
"corporation" means a corporation, association, company,
joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means The Depository Trust Company or, if The
Depository Trust Company shall cease to be a clearing agency registered under
the Exchange Act, any other clearing agency registered under the Exchange Act
that is designated as the successor Depositary in a Company Order delivered to
the Trustee.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" refers to the Securities Exchange Act of 1934
as it may be amended and any successor act thereto.
"Funded Debt" means (i) all Debt having a maturity of more
than 12 months from the date as of which the determination is made or having a
maturity of 12 months or less but by its terms being renewable or extendible
beyond 12 months from such date at the option of the borrower and (ii) rental
obligations payable more than 12 months from such date under leases which are
capitalized in accordance with generally accepted accounting principles (such
rental obligations to be included as Funded Debt at the amount so capitalized at
the date of such computation and to be included for the purposes of the
definition of Consolidated Net Tangible Assets both as an asset and as Funded
Debt at the amount so capitalized).
"Global Security" means a Security that evidences all or part
of the Securities and bears the legend set forth in Section 205.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
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<PAGE> 16
"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,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an
instalment of interest on the Securities.
"Lien" means, with respect to any property or assets, any
mortgage or deed of trust, pledge, hypothecation, assignment, deposit
arrangement, security interest, lien, charge, easement (other than any easement
not materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement, or any equivalent of any of the foregoing
under the laws of any applicable jurisdiction, on or with respect to such
property or assets (including, without limitation, any conditional sale or other
title retention agreement having substantially the same economic effect as any
of the foregoing).
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 1004 shall
be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
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<PAGE> 17
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment 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; 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;
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, 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 so owned 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.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
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<PAGE> 18
"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.
"Principal Property" means any facility owned by the Company
or any Restricted Subsidiary the gross book value of which (including related
land, improvements, machinery and equipment so owned, without deduction of any
depreciation reserves) on the date as of which the determination is being made
exceeds 1% of Consolidated Net Tangible Assets.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the __________ or _____________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date.
"Restricted Subsidiary" means any Subsidiary which owns a
Principal Property.
"Sale and Leaseback Transaction" means an arrangement with any
lender or investor or to which such lender or investor is a party providing for
the leasing by such Person of any property or asset of such Person which has
been or is being sold or transferred by such Person more than 180 days after the
acquisition thereof or the completion of construction or commencement of
operation thereof to such lender or investor or to any person to whom funds have
been or are to be advanced by such lender or investor on the security of such
property or asset. The stated maturity of such arrangement shall be the date of
the last payment of rent or any other amount due under such arrangement prior to
the first date on which such arrangement may be terminated by the lessee without
payment of a penalty.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or
any instalment of interest thereon, means the date specified in such Security as
the fixed date on which
-7-
<PAGE> 19
the principal of such Security or such instalment of interest is due and
payable.
"Subsidiary" means (i) a corporation more than 50% of the
voting stock of which is owned by the Company and/or one or more Subsidiaries or
(ii) any other Person (other than a corporation) of which the Company and/or one
or more Subsidiaries has at least a majority ownership and power to direct the
policies, management and affairs.
"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 such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as
in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such
date, "Trust Indenture Act" means, to the extent required by any such amendment,
the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 1104.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
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 such certificates and opinions as may be required under
the Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
-8-
<PAGE> 20
(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.
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
-9-
<PAGE> 21
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; Record Dates.
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 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.
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 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.
The ownership of Securities shall be proved by the Security
Register.
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
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<PAGE> 22
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.
The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities, provided that the Company may not set a record date
for, and the provisions of this paragraph shall not apply with respect to, the
giving or making of any notice, declaration, request or direction referred to in
the next paragraph. If not set by the Company prior to the first solicitation of
a Holder made by any Person in respect of any such matter referred to in the
foregoing sentence, the record date for any such matter 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. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to take
the relevant action, whether or not such Holders remain Holders after such
record date; provided that no such action shall be effective hereunder unless
taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each Holder of Securities in the manner
set forth in Section 106.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to
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<PAGE> 23
institute proceedings referred to in Section 507(2) or (iv) any direction
referred to in Section 512. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to join in such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Company's expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Company in writing and to each Holder of Securities in the
manner set forth in Section 106.
With respect to any record date set pursuant to this Section,
the party hereto which sets such record dates may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
106, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
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<PAGE> 24
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 Administration, or
(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 writing to the Trustee by the
Company.
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
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<PAGE> 25
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 a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter 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.
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 of Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
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SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES 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 or Stated Maturity
of any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest Payment
Date or at the Stated Maturity, provided that no interest shall accrue for the
period from and after such Interest Payment Date or Stated Maturity, as the case
may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of
authentication shall be in substantially the forms set forth in this Article,
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.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner, provided in any case that if the Securities are listed on any
securities exchange the method of producing the definitive Securities is
permitted by the rules of such securities exchange, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
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SECTION 202. Form of Face of Security.
DOVER CORPORATION
___% Notes due __________, 2005
No. __________ $________
Dover Corporation, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to __________________, or registered assigns,
the principal sum of _____________________ Dollars on ____________, 2005, and to
pay interest thereon from _____________, 1995 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. 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 Securities 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 may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of the principal of and interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in New York, New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
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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 corporate seal.
Dated:
DOVER CORPORATION
By_______________________
Attest:
___________________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities
of the Company designated as its __% Notes due, __________ 2005 (herein called
the "Securities"), limited in aggregate principal amount to $______, issued and
to be issued under an Indenture, dated as of November __, 1995 (herein called
the "Indenture"), between the Company and ________________________, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
The Securities are not subject to redemption prior to maturity
and do not have the benefit of any sinking fund obligations.
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If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time
of (i) the entire indebtedness of this Security or (ii) certain restrictive
covenants and Events of Default with respect to this Security, in each case upon
compliance with certain conditions set forth therein.
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 under
the Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Securities at the
time Outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this 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
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 New York, New York, 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 authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
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The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
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.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
SECTION 204. Form of Trustee's Certificate of
Authentication.
This is one of the Securities referred to in the
within-mentioned Indenture.
__________________________,
as Trustee
By _______________________
Authorized Officer
SECTION 205. Form of Legend for Global Securities.
Every Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY
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REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $___________,
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306 or 906.
The Securities shall be known and designated as the "__% Notes
due ____________, 2005" of the Company. Their Stated Maturity shall be
____________, 2005, and they shall bear interest at the rate of ____% per annum,
from __________, 1996 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
semi-annually on _____________ and ________, commencing ___________, until the
principal thereof is paid or made available for payment.
The principal of and interest on the Securities shall be
payable at the office or agency of the Company in New York, New York maintained
for such purpose and at any other office or agency maintained by the Company for
such purpose; 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.
The Securities shall not be redeemable prior to maturity and
shall not have the benefit of any sinking fund obligations.
The Securities shall be subject to defeasance at the option of
the Company as provided in Article Eleven.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
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SECTION 303. Execution, Authentication, Delivery
and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. 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 Securities 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 executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, which Company Order shall
specify whether such Securities are to be Global Securities; and the Trustee in
accordance with such Company Order shall authenticate and deliver such
Securities as in this Indenture provided and not otherwise.
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.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, 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
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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.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 305. Registration, Registration of Transfer and
Exchange.
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 designated pursuant to Section 1002 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 at
an office or agency of the Company designated pursuant to Section 1002 for such
purpose, 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 any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities may be exchanged for
other Securities 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
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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 (if so required by the Company or the Trustee) 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 with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304 or 906 not involving any transfer.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary or a nominee thereof
and delivered to the Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for 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 Depositary
or a nominee thereof unless (A) such Depositary (i) has notified the
Company that it is unwilling or unable to continue as Depositary or
(ii) has ceased to be a clearing agency registered under the Exchange
Act, (B) the Company executes and delivers to the Trustee a Company
Order that
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such Global Security shall be so exchangeable, or (C) there shall have
occurred and be continuing an Event of Default.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such names as the Depositary shall
direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Section 304, 306 or 906 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security, unless such
Security is registered in the name of a Person other than the
Depositary or a nominee thereof.
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 like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
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In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security 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 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.
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 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
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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 (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 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 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 Trustee 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 Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, 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 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 (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).
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(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this
Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, 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.
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 (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.
SECTION 309. Cancellation.
All Securities surrendered for payment, registration of
transfer or exchange 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 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 disposed of as directed by a Company Order.
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SECTION 310. Computation of Interest.
Interest on the Securities 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 cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, on demand of and at the expense
of the Company, shall execute proper instruments 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, or
(ii) will become due and payable at their
Stated Maturity within one year,
and the Company, in the case of (i) or (ii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount
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sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity, as the case may be;
(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 Trustee 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, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with the Trustee.
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ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be 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
when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of any Security at
its Maturity; or
(3) 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 specifically dealt with), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(4) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company or any
Restricted Subsidiary in an involuntary case or proceeding under any
applicable U.S. Federal or State or other applicable bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or
order adjudging the Company or any Restricted Subsidiary a bankrupt or
insolvent, or approving as properly filed a
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petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company or any Restricted Subsidiary under any
applicable U.S. Federal or State or other applicable law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any Restricted Subsidiary or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(5) the commencement by the Company or any Restricted
Subsidiary of a voluntary case or proceeding under any applicable U.S.
Federal or State or other applicable bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company or any
Restricted Subsidiary in an involuntary case or proceeding under any
applicable U.S. Federal or State or other applicable bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable U.S. Federal or State or other
applicable law, or the consent by it to the filing of such petition or
to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Restricted Subsidiary or of any substantial part
of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company or any Restricted Subsidiary in furtherance of
any such action.
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SECTION 502. Acceleration of Maturity; Rescission
and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 501(4) or (5)) occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities may declare the principal of all the Securities 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 shall
become immediately due and payable. If an Event of Default specified in Section
501(4) or (5) occurs, the principal of and any accrued interest on the
Securities then Outstanding shall ipso facto become immediately due and payable
without any declaration or other Act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration 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,
(B) the principal of any Securities which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by
the Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
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(2) all Events of Default, other than the non-payment of the
principal of Securities 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.
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
(2) default is made in the payment of the principal of 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 interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at the rate borne by the 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 an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most 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.
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SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or
any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized 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.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 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.
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SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest, respectively.
SECTION 507. Limitation on Suits.
No Holder of any Security 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;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(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
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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;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to
Receive Principal and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of and (subject to Section
307) interest on such Security on the respective Stated Maturities expressed in
such Security and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
SECTION 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
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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
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, 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.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any
Security, 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 affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, a court may require any party litigant in
such suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent provided
in the Trust Indenture Act; provided, that neither this Section nor the Trust
Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Company.
SECTION 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 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.
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ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, 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.
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.
SECTION 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the
character specified in Section 501(3), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. 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.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) 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;
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(b) 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;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) 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;
(e) 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;
(f) 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, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
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(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee 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 assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee 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, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 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
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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 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 for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
SECTION 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
has a combined capital and surplus of at least $50,000,000 and its Corporate
Trust Office in New York, New York. If such Person 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, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall
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resign immediately in the manner and with the effect hereinafter specified in
this Article.
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 shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
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.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
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, or
(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, 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
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similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(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,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee and supersede the successor Trustee appointed by the Company.
If no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, 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 appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder 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 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. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in
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and confirming to such successor Trustee all such rights, powers and trusts.
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.
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, 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 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 which
shall be authorized to act on behalf of the Trustee to authenticate Securities
issued upon original issue and upon exchange, registration of transfer 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. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of
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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, 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, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
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, 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 this Section, 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 as their
names and addresses appear in the Security Register. 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
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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.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
-----------------------------,
As Trustee
----------
By
-----------------------------,
As Authenticating Agent
-----------------------
By
-----------------------------
Authorized Officer
------------------
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
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
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require, of the names and addresses of the Holders as of such
Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 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;
excluding from any such list names and addresses received by the Trustee
in its capacity as Security Registrar.
SECTION 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) 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 the Securities are
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listed, with the Commission and with the Company. The Company will notify the
Trustee when the Securities are listed on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms.
The Company shall not, in a single transaction or a series of
related transactions, (a) consolidate with or merge with or into any other
Person, (b) convey, transfer or lease, or otherwise dispose of, all or
substantially all of its properties and assets to any Person or group of
affiliated Persons, or (c) permit any of its Restricted Subsidiaries to enter
into any such transaction or transactions if such transaction or transactions,
in the aggregate, would result in a sale, assignment, transfer, lease or
disposal of all or substantially all of the properties and assets of the Company
and its Restricted Subsidiaries on a consolidated basis to any other Person or
group of affiliated Persons, unless:
(1) in a transaction in which the Company consolidates
with or merges with or into another Person and is not the
surviving entity of such consolidation or merger or in which the
Company directly or indirectly sells, assigns, conveys, transfers,
leases or otherwise disposes of all or substantially all of its
properties and assets as an entirety, (a) the Person formed by
such
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consolidation or with or into which the Company is merged or the
Person that acquires by sale, assignment, conveyance, transfer,
lease or other disposition all or substantially all of the
properties and assets of the Company as an entirety (for purposes
of this Article Eight, a "Successor Company") shall be a
corporation, partnership or trust, shall be organized and validly
existing under the laws of the United States of America, any State
thereof or the District of Columbia and (b) the Successor Company
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
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;
(2) immediately before and after giving effect to such
transaction and treating any Debt incurred by the Company or a
Restricted Subsidiary as a result of such transaction as having
been incurred by the Company or such Restricted 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 occurred and be continuing;
(3) if, as a result of any such transaction, property
and assets of the Company or any Restricted Subsidiary would
become subject to a Lien which would not be permitted by Section
1008, the Company or, if applicable, the Successor Company, as the
case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or
prior to) Debt secured by such Lien; and
(4) 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
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Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any transfer, conveyance, sale, lease or other
disposition of all or substantially all of the properties and assets of the
Company as an entirety in accordance with Section 801, the Successor Company
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; or
(2) to add to the covenants of the Company for the benefit of
the Holders, or to surrender any right or power herein conferred upon
the Company; or
(3) to secure the Securities pursuant to the requirements of
Section 1008 or otherwise; or
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(4) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided that such action
pursuant to this Clause (4) shall not adversely affect the interests of
the Holders.
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, 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 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
instalment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon, or change the place of payment
where, or the coin or currency in which, any Security or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity
thereof, or
(2) reduce the percentage in principal amount of the
Outstanding Securities, 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 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, Section 513
or Section 1010, except to increase any such percentage or to
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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.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee 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 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, 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 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities
to Supplemental Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article 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
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shall so determine, new Securities so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in New York, New York an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities 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 (in or outside New York, New York) where the
Securities 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 New York, New York 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.
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SECTION 1003. Money for Security
Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of or interest on any of
the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided and will promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying Agents, it
will, prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent 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, that
such Paying Agent will (i) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent and (ii) during the continuance of any
default by the Company (or any other obligor upon the Securities) in the making
of any payment in respect of the Securities, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent 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 or
interest on any Security and remaining unclaimed for two years after such
principal 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
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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
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 New York, 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. Statement by Officers as to Default.
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, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005. 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
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors 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 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
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equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 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 Subsidiary.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all 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 lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any 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 1008. Limitation on Secured Debt.
The Company will not, and will not permit any Restricted
Subsidiary to, incur or guarantee any evidence of indebtedness for money
borrowed ("Debt") secured by a Lien on any (i) Principal Property or any part
thereof, (ii) Capital Stock of a Restricted Subsidiary now owned or hereafter
acquired by the Company or any Restricted Subsidiary or (iii) Debt of a
Restricted Subsidiary owed to the Company or any Restricted Subsidiary of the
Company, without in any such case (i), (ii) or (iii) effectively providing that
the Securities are secured equally and ratably with (or, at the Company's
option, prior to) such secured Debt and any other Debt required to be so
secured, unless the aggregate amount of all such secured Debt, plus all
Attributable Debt of the Company and its Restricted Subsidiaries with respect to
Sale and Leaseback transactions involving Principal Properties (with the
exception of such transactions which are excluded by the second paragraph of
Section 1009), would not exceed 10% of Consolidated Net Tangible Assets.
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The foregoing restriction shall not apply to, and there will be
excluded from Debt in any computation under such restriction, (i) Debt secured
by a Lien in favor of the Company or a Restricted Subsidiary, (ii) Debt secured
by a Lien in favor of governmental bodies to secure progress or advance payments
or payments pursuant to contracts or statute, (iii) Debt secured by a Lien on
property, Capital Stock or Debt existing at the time of acquisition thereof
(including acquisition through merger, consolidation or otherwise), (iv) Debt
incurred or guaranteed to finance the acquisition of property, Capital Stock or
Debt, or to finance construction on, or improvement or expansion of, property,
which Debt is incurred within 180 days of such acquisition or completion of
construction, improvement or expansion, and is secured solely by a Lien on the
property, Capital Stock or Debt acquired, constructed, improved or expanded, (v)
Debt consisting of industrial revenue or pollution control bonds or similar
financing secured solely by a Lien on the property the subject thereof, or (vi)
any extension, renewal or replacement of any Debt referred to in the foregoing
clauses (iii) or (iv).
SECTION 1009. Limitation on Sale and Leaseback
Transactions.
Neither the Company nor any Restricted Subsidiary will enter
into any Sale and Leaseback Transaction involving any Principal Property or any
part thereof after the date of original issuance of the Securities unless the
aggregate amount of all Attributable Debt of the Company and its Restricted
Subsidiaries with respect to such transactions plus all secured Debt to which
the restrictions described in Section 1008 apply would not exceed 10% of
Consolidated Net Tangible Assets.
The foregoing restriction shall not apply to, and there shall
be excluded from Attributable Debt in any computation under such restriction,
any Sale and Leaseback Transaction if (i) the lease is for a period of not in
excess of three years, including renewal rights, (ii) the lease secures or
relates to industrial revenue or pollution control bonds or similar financing,
(iii) the transaction is between the Company and a Restricted Subsidiary or
between Restricted Subsidiaries, or (iv) the Company or such Restricted
Subsidiary, within 180 days after the sale is completed, applies an amount equal
to the greater of (A) the net proceeds of the sale of the Principal Property
leased or (B) the fair market value of the Principal Property leased either to
(1) the retirement of Securities, other Funded Debt of the Company ranking on a
parity with the Securities, or Funded Debt of a Restricted Subsidiary or (2) the
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purchase of other property which will constitute a Principal Property having a
value at least equal to the value of the Principal Property leased.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with
any covenant or condition set forth in Sections 1008 to 1009, inclusive, if
before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant 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 covenant or condition shall remain in full
force and effect.
ARTICLE ELEVEN
Defeasance and Covenant Defeasance
SECTION 1101. Company's Option to Effect Defeasance or
Covenant Defeasance.
The Company may at its option by Board Resolution, at any time,
elect to have either Section 1102 or Section 1103 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this Article
Eleven.
SECTION 1102. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
1101 applicable to this Section, the Company shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities on
the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive
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until otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Securities to receive, solely from the trust fund described in Section 1104
and as more fully set forth in such Section, payments in respect of the
principal of and interest on such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 304, 305,
306, 1002 and 1003, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Eleven. Subject to compliance with this
Article Eleven, the Company may exercise its option under this Section 1102
notwithstanding the prior exercise of its option under Section 1103.
SECTION 1103. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section
1101 applicable to this Section, (i) the Company shall be released from its
obligations under Sections 1005 through 1009, inclusive, and Clause (3) of
Section 801, and (ii) the occurrence of an event specified in Sections 501(3)
(with respect to any of Sections 1005 through 1009, inclusive) shall not be
deemed to be an Event of Default on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such Section or Clause, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or Clause or by reason of any
reference in any such Section or Clause to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1104. Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions to application
of either Section 1102 or Section 1103 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 609 who shall agree to comply with the
provisions of this Article Eleven applicable to it) as trust funds in
trust for the purpose of making the following
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payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (A) money in an
amount, or (B) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) 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, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of and each instalment of interest on the
Securities on the Stated Maturity of such principal or instalment of
interest in accordance with the terms of this Indenture and of such
Securities. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of
America for the payment of which its full faith and credit is pledged
or (y) obligations of a Person controlled or supervised by and acting
as an agency or instrumentality of the United States of America the
payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank
(as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government
Obligation or a specific payment of principal of or interest on any
such U.S. Government Obligation held by such custodian for the account
of the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1102, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(x) the Company has received
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from, or there has been published by, the Internal Revenue Service a
ruling, or (y) since the date of this Indenture there has been a change
in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of
the Outstanding Securities will not recognize gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred.
(3) In the case of an election under Section 1103, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of the Outstanding Securities will not recognize gain
or loss for Federal income tax purposes as a result of such deposit and
covenant defeasance and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would have
been the case if such deposit and covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an
Officer's Certificate to the effect that the Securities, if then listed
on any securities exchange, will not be delisted as a result of such
deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and
for purposes of the Trust Indenture Act with respect to any securities
of the Company.
(6) No Event of Default or event which with 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 or, insofar as subsections
501(5) and (6) are concerned, at any time during the period ending on
the 121st day after the date of such deposit (it being understood that
this condition shall not be
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deemed satisfied until the expiration of such period).
(7) Such defeasance or covenant defeasance shall not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound.
(9) Such defeasance or covenant defeasance shall not result in
the trust arising from such deposit constituting an investment company
as defined in the Investment Company Act of 1940, as amended, or such
trust shall be qualified under such act or exempt from regulation
thereunder.
SECTION 1105. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of
Section 1003, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee--collectively,
for purposes of this Section 1105, the "Trustee") pursuant to Section 1104 in
respect of the Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such 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 Holders of
such Securities, of all sums due and to become due thereon in respect of
principal and any interest, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1104 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge
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which by law is for the account of the Holders of the Outstanding Securities.
Anything in this Article Eleven to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 1104 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 1106. Reinstatement.
If the Trustee or the Paying Agent is unable to apply
any money in accordance with Section 1102 or 1103 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to this Article Eleven until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 1102 or 1103; provided, however, that if the Company makes any payment
of principal of or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
--------------------
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.
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
Dover Corporation
By
-----------------------------
Attest:
- -----------------------------
The First National Bank of Chicago
By
-----------------------------
Attest:
- -----------------------------
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STATE OF NEW YORK ) ss.:
COUNTY OF NEW YORK )
On the _____ day of __________, 19__, before me personally
came ___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is ____________________________________________
of Dover Corporation, one of the corporations described in and which executed
the foregoing instrument; that [he -- she] knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that [he
- -- she] signed [his -- her] name thereto by like authority.
_____________________________
STATE OF ILLINOIS) ss.:
COUNTY OF COOK )
On the _____ day of __________, 19__, before me personally
came ___________________________, to me known, who, being by me duly sworn,
did depose and say that [he -- she] is _______________________________________
of The First National Bank of Chicago, one of the corporations described in and
which executed the foregoing instrument; that [he -- she] knows the seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that [he -- she] signed [his -- her] name thereto by like
authority.
_____________________________
-66-
<PAGE> 1
EXHIBIT 5
October 26, 1995
Dover Corporation
280 Park Avenue
New York, New York 10017-1292
Re: Registration Statement on Form S-3 Relating
to $250,000,000 of Notes
Dear Sirs:
I am the Vice President, General Counsel and Secretary of Dover
Corporation, a Delaware corporation ("Dover"), and, as such, I am familiar with
the Registration Statement on Form S-3 (the "Registration Statement") being
filed by Dover with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the "Act"), with respect to $250,000,000 aggregate
principal amount of notes (the "Notes") of Dover that are to be issued pursuant
to an Indenture between Dover and The First National Bank of Chicago, as
trustee, which is being filed as Exhibit 4 to the Registration Statement.
For the purposes of this opinion, I have examined the Indenture and the
forms of the Notes included therein. I have also examined the originals, or
photostatic or certified copies, of such records of Dover, certificates of
officers of Dover and of public officials, and such other documents as I have
deemed relevant and necessary as the basis for the opinion set forth below. In
such examination, I have assumed the genuineness of all signatures, the
authenticity of all documents submitted to me as originals, the conformity to
original documents of all documents submitted to me as photostatic or certified
copies, and the authenticity of the originals of such copies.
Based upon my examination mentioned above, I am of the opinion that the
issuance and sale of the Notes by Dover as contemplated in the Indenture and the
Prospectus constituting part of the Registration Statement (the "Prospectus")
have been duly authorized by Dover, and that, when duly executed, authenticated,
issued and delivered against payment therefor in accordance with the Indenture
and the Prospectus, the Notes will constitute valid and binding obligations of
Dover in accordance with their terms.
I consent to the filing of this opinion as an Exhibit to the Registration
Statement and to the reference to my name appearing under the caption "Validity
of the Notes" in the Prospectus. In giving this consent, I do not thereby admit
that I am within the category of persons whose consent is required under Section
7 of the Act or the Rules and Regulations of the Securities and Exchange
Commission promulgated thereunder.
Very truly yours,
ROBERT G. KUHBACH
<PAGE> 1
EXHIBIT 12
DOVER CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
NINE MONTHS ENDED THREE MONTHS
ENDED SEPTEMBER
YEAR ENDED DECEMBER 31, SEPTEMBER 30, 30,
----------------------------------------------- ----------------- ----------------
1990 1991 1992 1993 1994 1994 1995 1994 1995
---- ---- ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings from continuing
operations before
income taxes.................. 244,118 204,088 200,335 245,542 306,859 229,033 316,063 79,592 103,195
Add Fixed Charges:
Interest expense.............. 30,658 23,162 20,059 22,338 36,461 25,029 27,101 9,911 9,559
Rent expense.................. 8,068 8,673 8,557 8,308 8,639 6,479 6,737 1,620 1,684
------- ------- ------- ------- ------- ------- ------- ------ -------
Total Fixed charges............. 38,726 31,835 28,616 30,646 45,100 31,508 33,838 11,531 11,243
------- ------- ------- ------- ------- ------- ------- ------ -------
Earnings as adjusted............ 282,844 235,923 228,951 276,188 351,959 260,541 349,901 91,123 114,438
======= ======= ======= ======= ======= ======= ======= ====== =======
Ratio of earnings to fixed
charges....................... 7.3X 7.4X 8.0X 9.0X 7.8X 8.3X 10.3X 7.9X 10.2X
</TABLE>
<PAGE> 1
EXHIBIT 23.2
The Board of Directors and Stockholders
Dover Corporation:
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
New York, New York
October 25, 1995
<PAGE> 1
EXHIBIT 23.3
CONSENT OF STATUTORY AUDITORS
We consent to the incorporation by reference in the Prospectus (the
"Prospectus") constituting part of this Registration Statement on Form S-3 of
Dover Corporation of our general report as statutory auditors on the
consolidated financial statements of Imaje S.A. and subsidiaries for the year
ended 31 December 1994 which appears on page 4 of Amendment No. 1, dated October
25, 1995 to the Current Report on Form 8-K, dated October 16, 1995, filed by
Dover Corporation.
We also consent to the reference to us under the heading "Experts" in the
Prospectus.
October 25, 1995
Ernst & Young Audit
JEAN-MICHEL BLOCH
<PAGE> 1
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) _____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
Identificaton number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
---------------------------------
DOVER CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 53-0257888
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
280 Park Avenue
New York, New York 10017-1292
(Address of principal executive offices) (Zip Code)
Notes
(Title of Indenture Securities)
<PAGE> 2
Item 1. GENERAL INFORMATION. Furnish the following
information as to the trustee:
(a) Name and address of each examining or
supervising authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise
corporate trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor
is an affiliate of the trustee, describe each
such affiliation.
No such affiliation exists with the trustee.
Item 16. LIST OF EXHIBITS. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE> 3
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 23rd day of October, 1995.
The First National Bank of Chicago,
Trustee,
By /s/ R. D. Manella
R. D. Manella
Vice President
* Exhibit 1,2,3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 12 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 26 to the Registration Statement on Form S-3 of The
CIT Group Holdings, Inc., filed with the Securities and Exchange Commission on
February 16, 1993 (Registration No. 33-58418).
3
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
October 23, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Dover Corporation
and The First National Bank of Chicago, the undersigned, in accordance with
Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents
that the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request
therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
R. D. Manella
Vice President
4
<PAGE> 5
EXHIBIT 7
<TABLE>
<S> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/95 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-1
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION> C400 <-
DOLLAR AMOUNTS IN ------------ -----
THOUSANDS RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . . . . . 0081 3,184,875 1.a.
b. Interest-bearing balances(2). . . . . . . . . . . . . . . . . . . . 0071 8,932,069 1.b.
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) . . . . 1754 249,502 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D). . . . 1773 536,856 2.b.
3. Federal funds sold and securities purchased under agreements to
resell in domestic offices of the bank and its Edge and Agreement
subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . . . . . . 0276 2,897,736 3.a.
b. Securities purchased under agreements to resell . . . . . . . . . 0277 1,417,129 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 16,567,408 4.a.
b. LESS: Allowance for loan and lease losses . . . . . . . . . . . . RCFD 3123 358,877 4.b.
c. LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c) . . . . . . . . . . . . . . . 2125 16,208,531 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . . . . . . 3545 13,486,931 5.
6. Premises and fixed assets (including capitalized leases) . . . . . . 2145 516,279 6.
7. Other real estate owned (from Schedule RC-M) . . . . . . . . . . . . 2150 11,216 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . . . . . 2130 12,946 8.
9. Customers' liability to this bank on acceptances outstanding . . . . 2155 501,943 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . . . . . 2143 111,683 10.
11. Other assets (from Schedule RC-F) . . . . . . . . . . . . . . . . . . 2160 1,258,270 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . . . . . 2170 49,325,966 12.
</TABLE>
____________
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
5
<PAGE> 6
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/95 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Suite 0460 Page RC-2
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
----------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1) . . . . . . . . . . . . . . . RCON 2200 14,889,235 13.a.
(1) Noninterest-bearing(1) . . . . . . . . . . . . . . . . RCON 6631 5,895,584 13.a.(1)
(2) Interest-bearing . . . . . . . . . . . . . . . . . . . RCON 6636 8,993,651 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
IBFs (from Schedule RC-E, part II) . . . . . . . . . . . . RCFN 2200 13,289,760 13.b.
(1) Noninterest bearing . . . . . . . . . . . . . . . . . RCFN 6631 315,549 13.b.(1)
(2) Interest-bearing. . . . . . . . . . . . . . . . . . . . RCFN 6636 12,974,211 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of
its Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased . . . . . . . . . . . . . . . . . RCFD 0278 2,942,186 14.a.
b. Securities sold under agreements to repurchase . . . . . . RCFD 0279 1,160,512 14.b.
15. a. Demand notes issued to the U.S. Treasury. . . . . . . . . . RCON 2840 112,768 15.a.
b. Trading Liabilities . . . . . . . . . . . . . . . . . . . . RCFD 3548 7.872,221 15.b.
16. Other borrowed money:
a. With original maturity of one year or less . . . . . . . . RCFD 2332 2,402,829 16.a.
b. With original maturity of more than one year . . . . . . RCFD 2333 643,987 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases . . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2910 278,108 17.
18. Bank's liability on acceptance executed and outstanding . . . RCFD 2920 501,943 18.
19. Subordinated notes and debentures . . . . . . . . . . . . . . RCFD 3200 1,225,000 19.
20. Other liabilities (from Schedule RC-G) . . . . . . . . . . . RCFD 2930 981,938 20.
21. Total liabilities (sum of items 13 through 20) . . . . . . . RCFD 2948 46,300,487 21.
22. Limited-Life preferred stock and related surplus . . . . . . RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus . . . . . . . . RCFD 3838 0 23.
24. Common stock . . . . . . . . . . . . . . . . . . . . . . . . RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock) . . RCFD 3839 2,314,642 25.
26. a. Undivided profits and capital reserves . . . . . . . . . . RCFD 3632 510,093 26.a.
b. Net unrealized holding gains (losses) on available-for-sale
securities . . . . . . . . . . . . . . . . . . . . . . . . RCFD 8434 (880) 26.b.
27. Cumulative foreign currency translation adjustments. . . . . . RCFD 3284 766 27.
28. Total equity capital (sum of items 23 through 27) . RCFD 3210 3,025,479 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) . . . . . . . . . . . . RCFD 3300 49,325,966 29.
</TABLE>
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 Number
auditors as of any date during 1993. . . . . . . . . . RCFD 6724 N/A M.1.
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 separately)
3 = Directors' 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. = Directors' 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.
6
