<PAGE>
As Filed with the Securities And Exchange Commission on July 7, 1997
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Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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DRESSER INDUSTRIES, INC.
(Exact name of Registrant as specified in its Charter)
Delaware 75-0813641
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2001 Ross Avenue Rebecca R. Morris
Dallas, Texas 75201 Vice President-Corporate Counsel
(214) 740-6000 and Secretary
(Address, including zip code, and Dresser Industries, Inc.
telephone number, including area 2001 Ross Avenue
code, of Registrant's principal Dallas, Texas 75201
executive offices) (214) 740-6000
(Name, address, including zip code,
and telephone number, including
area code, of agent for service)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
From time to time after the effective date of this Registration Statement as
determined by market conditions.
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 in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of Proposed Maximum
Securities to Be Aggregate Amount of
Registered Offering Price (1) Registration Fee
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Debt Securities (2)
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Preferred Stock, no par
value (3)
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Common Stock, par value
$0.25 per share (4)
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Total $750,000,000.00 $227,272.73
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of all securities issued from time to time pursuant to this
Registration Statement exceed $750,000,000 or the equivalent thereof in
foreign currencies, exclusive of accrued interest and dividends, if any.
Any securities registered hereunder may be sold separately or as units with
other securities registered hereunder.
(2) Subject to Footnote (1), there is being registered hereunder an
indeterminate principal amount of Debt Securities that may be issued from
time to time by the Registrant, including Debt Securities issuable upon
conversion or exchange of Debt Securities or Preferred Stock. If any such
Debt Securities are issued at an original issue discount, then the offering
price shall be in such greater principal amount as shall result in an
aggregate initial offering price of up to $750,000,000.
(3) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of shares of Preferred Stock that may be issued from
time to time by the Registrant, including Preferred Stock issuable upon
conversion or exchange of Debt Securities or Preferred Stock.
(4) Subject to Footnote (1), there is being registered hereunder an
indeterminate number of shares of Common Stock that may be issued from time
to time by the Registrant, including Common Stock issuable upon conversion
or exchange of Debt Securities or Preferred Stock, and includes Preferred
Stock Purchase Rights which, prior to the occurrence of certain events,
will not be exercisable or evidenced separately from the Common Stock.
----------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
----------------------
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EXPLANATORY NOTE
This Registration Statement contains a Prospectus relating to Debt
Securities and shares of Preferred Stock and Common Stock to be offered for the
account of the Registrant, the aggregate offering price of both will not exceed
$750,000,000. If any Debt Securities, Preferred Stock or Common Stock are
offered after the effectiveness of this Registration Statement, a Prospectus
Supplement describing the particular terms of such Debt Securities, Preferred
Stock or Common Stock, and the offering thereof will be filed in accordance with
the rules and regulations of the Securities and Exchange Commission.
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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 JULY 3, 1997
PROSPECTUS
$750,000,000
DRESSER INDUSTRIES, INC.
DEBT SECURITIES PREFERRED STOCK COMMON STOCK
----------------------
Dresser Industries, Inc. (the "Company" or "Dresser") may offer from
time to time, its (i) unsecured debt securities consisting of notes,
debentures or other evidences of indebtedness (the "Debt Securities"), in one
or more series, which may be either senior ("Senior Securities") or
subordinated ("Subordinated Securities") and which may be convertible into or
exchangeable for shares of common stock, par value $0.25 per share, (the
"Common Stock") shares of preferred stock, no par value, (the "Preferred
Stock") or other Debt Securities; (ii) Preferred Stock in one or more series,
which may be convertible into or exchangeable for Common Stock, Preferred
Stock or Debt Securities; and (iii) Common Stock. The Debt Securities,
Preferred Stock and Common Stock are collectively referred to herein as the
"Securities."
The aggregate initial offering price of the Securities to be offered by the
Company hereby will not exceed $750,000,000 or, if applicable, the equivalent
thereof in any other currency or currency unit. The Securities may be offered
in amounts, at prices or on terms to be determined by market conditions at the
time of the offering thereof. As used herein, the Debt Securities includes
securities denominated in United States dollars or, at the option of the Company
if so specified in an accompanying Prospectus Supplement, in any other currency
or currency unit, or in amounts determined by reference to an index. In
addition, all or a portion of the Debt Securities of a series may be issuable in
temporary or permanent global form.
The terms of the Securities in respect of which this Prospectus is being
delivered will be set forth in a supplement to this Prospectus (the "Prospectus
Supplement") which will be delivered together with this Prospectus, including,
where applicable, (i) in the case of Debt Securities, the specific designation,
aggregate principal amount, authorized denominations, maturity, rate or rates
(or method of determining the same) and time or times of payment of any
interest, any terms for optional or mandatory redemption, which may include
redemption at the option of holders upon the occurrence of certain events, or
payment of additional amounts or any sinking fund provisions, terms of
subordination of Subordinated Securities, any provisions with respect to
conversion or exchange, the initial offering price and other specific terms; and
(ii) in the case of Preferred Stock, the specific designation and stated value,
any dividend, liquidation, redemption, sinking fund, voting or other rights,
time of payment of dividends, any provision for conversion or exchange, the
initial offering price and other specific terms. The Prospectus Supplement will
also contain information, where applicable, about certain United States Federal
income tax considerations relating to, and any listing on a securities exchange
of, the Securities covered by the Prospectus Supplement.
The distribution of the Securities may be effected from time to time in one
or more transactions either at a fixed price or prices which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. See "Plan of Distribution."
The last reported sale prices of the Common Stock, which is quoted under
the symbol "DI" on the New York Stock Exchange and the Pacific Stock Exchange
on June 30, 1997 was $37.25, and $36.63 per share, respectively.
The Securities will be sold either through underwriters, dealers or
agents, or directly by the Company. See "Plan of Distribution." The applicable
Prospectus Supplement will set forth the names of any underwriters or agents
involved in the sale of any Securities in respect of which this Prospectus is
being delivered, if any, the proposed amounts, if any, to be purchased by
underwriters and the compensation, if any, of such underwriters or agents.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is July ___, 1997.
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NO DEALERS, SALESPERSON OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
THE ACCOMPANYING PROSPECTUS SUPPLEMENT IN CONNECTION WITH THE OFFERING
COVERED BY THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT. IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY. NEITHER THIS PROSPECTUS NOR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT CONSTITUTES AN OFFER TO SELL, OR A
SOLICITATION OF ANY OFFER TO BUY, ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT IS UNLAWFUL TO MAKE SUCH
OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR THE
ACCOMPANYING PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL, UNDER
ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE
IN THE FACTS SET FORTH IN THIS PROSPECTUS OR THE AFFAIRS OF THE COMPANY SINCE
THE DATE HEREOF.
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TABLE OF CONTENTS
Available Information................................................. 3
Incorporation of Certain Documents by Reference....................... 3
The Company........................................................... 4
Use of Proceeds....................................................... 4
Ratio of Earnings to Fixed Charges.................................... 4
Description of Debt Securities........................................ 4
Description of Capital Stock.......................................... 11
Plan of Distribution.................................................. 12
Legal Matters......................................................... 13
Experts............................................................... 13
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IN CONNECTION WITH AN OFFERING THROUGH UNDERWRITERS, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET
PRICE OF THE SECURITIES OFFERED AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE
PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON ANY
EXCHANGES ON WHICH THE SECURITIES ARE LISTED, IN THE OVER-THE-COUNTER MARKET
OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
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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, proxy statements, and other
information can be inspected and copied at the offices of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, Room 1024; and
at the Commission's regional offices at CITICORP Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60621-2511 and Seven World Trade Center,
13th Floor, New York, New York 10048. Copies of such material can also be
obtained from the Public Reference Section of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Such
information may also be accessed electronically by means of the Commission's
home page on the internet (http://www.sec.gov). Additionally, reports, proxy
statements and other information concerning the Company can be inspected at the
offices of The New York Stock Exchange, Inc. (the "New York Stock Exchange"), 20
Broad Street, New York, New York 10005 and The Pacific Exchange, Inc., (the
"Pacific Stock Exchange"), 301 Pine Street, San Francisco, California 94014, on
which exchanges the Common Stock is listed.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments, supplements, and exhibits thereto, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Securities offered hereby. This
Prospectus, which forms a part of the Registration Statement, does not contain
all the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company (File No. 1-
4003) with the Commission, are incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for its fiscal year ended
October 31, 1996;
2. The Company's Quarterly Reports on Form 10-Q for the periods ended
January 31, 1997 and April 30, 1997;
3. The description of the Common Stock contained in Exhibit 1 to the
Registration Statement on Form 8-A filed by the Company with the
Commission August 30, 1990, as amended by Amendment No. 1 on Form 8
filed with the Commission on October 3, 1990; and
4. The description of the Dresser Stock Purchase Rights contained in
Exhibit 1 to the Registration Statement on Form 8-A filed by the
Company with the Commission August 30, 1990, as amended by Amendment
No. 1 on Form 8 filed with the Commission on October 3, 1990.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof and prior to the termination of
the offering of the Securities offered hereby shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
which also is incorporated by reference herein) modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed to
constitute a part hereof except as so modified or superseded.
The Company will furnish without charge to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any or all of
the documents incorporated herein by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference in
such documents). Requests should be directed to: The Secretary, Dresser
Industries, Inc., P.O. Box 718, Dallas, Texas 75221 (telephone no.
214/740-6000).
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THE COMPANY
Dresser Industries, Inc., together with its subsidiaries (hereinafter
"Dresser" or "Registrant" or the "Company"), is a supplier of highly engineered
products, technical services and project management for hydrocarbon
energy-related activities that are primarily utilized in oil and gas drilling,
production and transmission; gas distribution; power generation; gas processing;
petroleum refining and marketing; and petrochemical production. Demand for
Dresser's products and services is generally determined by global demand for
energy and oil and gas by-products. Dresser was incorporated under the laws of
Delaware in 1956 as a successor to a Pennsylvania corporation organized in 1938
by the consolidation of S. R. Dresser Manufacturing Company and Clark Bros.
Company. Both were carrying on businesses founded in 1880. Dresser's executive
offices are located at 2001 Ross Avenue, Dallas, Texas 75201 (telephone number
214/740-6000).
USE OF PROCEEDS
Unless otherwise stated in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for
general corporate purposes, including acquisitions, the reduction of short-term
and long-term borrowing, repurchase of Company securities and for other business
opportunities. Any specific allocation of the net proceeds of an offering of
the Securities will be described in the applicable Prospectus Supplement. The
precise amount and timing of sales of the Securities by the Company will be
dependent on the Company's capital requirements, market conditions and the
availability and cost of other funds to the Company.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the consolidated ratio of earnings to fixed
charges for the Company for the periods indicated. For purposes of computing
such ratio, earnings consist of income before (i) taxes, (ii) minority
interests, (iii) extraordinary items, (iv) amortization of capitalized interest
and (v) fixed charges (adjusted to exclude capitalized interest) and after
adjustment for unremitted earnings of less than majority owned subsidiaries.
Fixed charges consist of interest on all indebtedness, amortization and debt
expense, discount and premium and a portion of rentals deemed to represent an
interest factor.
Six Months
Ended April 30, Year Ended October 31,
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1997 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ----
5.38 6.16 6.29 10.90* 4.77 2.96
* Ratio of 6.43 excluding gain on sale of Western Atlas International, Inc.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an Indenture (the "Indenture"),
between the Company and Texas Commerce Bank National Association (the
"Trustee"). A form of the Indenture is filed as an exhibit to the Registration
Statement. 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 of the provisions of the Indenture, including the
definitions of certain terms used therein. Wherever particular sections or
defined terms of the Indenture are referred to, it is intended that such
sections or defined terms shall be incorporated herein by reference in their
entirety. Capitalized terms not defined herein shall have the meanings given to
them in the Indenture. Further terms of the Debt Securities in respect of which
this Prospectus is being delivered will be set forth in the applicable
Prospectus Supplement.
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The Debt Securities consisting of debentures, notes and other evidences of
indebtedness will be general obligations of the Company, may be either Senior
Securities or Subordinated Securities and may be issued from time to time in
series under the Indenture. The Indenture does not limit the aggregate
principal amount of Debt Securities or of any particular series of Debt
Securities which may be issued thereunder.
Reference is made to the applicable Prospectus Supplement for the following
terms and other information with respect to the Debt Securities being offered
hereby: (i) the title of such Debt Securities; (ii) any limit on the aggregate
principal amount of such Debt Securities; (iii) the date or dates (or manner of
determining the same) on which such Debt Securities will mature; (iv) the rate
or rates (or manner of determining the same) at which such Debt Securities will
bear interest, if any, and the date or dates from which such interest will
accrue; (v) the dates (or manner of determining the same) on which such interest
will be payable and the Regular Record Dates for such Interest Payment Dates;
(vi) the place or places where the principal of and premium, if any, and
interest, if any, on such Debt Securities will be payable; (vii) the obligation
of the Company, if any, to redeem or purchase Debt Securities pursuant to any
mandatory or optional sinking fund or analogous provisions; (viii) the date, if
any, after which, and the price or prices at which, such Debt Securities are
payable pursuant to any optional or mandatory redemption provisions; (ix) the
denominations in which such Debt Securities will be issuable, if other than
denominations of $1,000 and any integral multiple thereof; (x) whether such Debt
Securities are to be issued as discounted Debt Securities; (xi) the
subordination terms, if any, of such Debt Securities; (xii) any "Events of
Default" with respect to such Debt Securities in addition to those described
herein; (xiii) whether such Debt Securities are to be issued in whole or in part
in the form of one or more global securities (the "Global Securities") and, if
so, the identity of the depositary, if any, for such Global Securities; (xiv)
the identity of the Trustee, and any authenticating agent, paying agent or
registrar with respect to such Debt Securities; and (xv) other specific terms of
such Debt Securities.
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and premium, if any, and interest, if any, on the Debt Securities
will be payable, and the transfer of the Debt Securities will be registrable, at
the office or agency of the Trustee, except that, at the option of the Company,
interest may be paid by mailing a check to the person entitled thereto as it
appears on the Security Register. (SECTIONS 2.03, 4.06 AND 10.11) No service
charge will be made to any Holder of Debt Securities for any transfer or
exchange of Debt Securities, except that the Company may require payment of a
sum sufficient to cover any tax or other governmental charge which may be
imposed in relation thereto. (SECTION 2.06)
Some or all of the Debt Securities may be issued as discounted Debt
Securities (bearing no interest or bearing interest at a rate which at the time
of issuance is below market rates) to be sold at a substantial discount below
their stated principal amount. Federal income tax consequences and other
special considerations applicable to any such discounted Debt Securities will be
described in the applicable Prospectus Supplement.
There are no covenants or provisions contained in the Indenture which may
afford Holders of Debt Securities protection in the event of a restructuring or
other highly leveraged transaction involving the Company.
SENIOR AND SUBORDINATED SECURITIES
The Senior Securities will be direct, unsecured obligations of the Company,
ranking on a parity with all other unsecured and unsubordinated indebtedness of
the Company. To the extent provided in the Prospectus Supplement relating
thereto, the Company may be required to secure Senior Securities equally and
ratably with other indebtedness with respect to which the Company elects or is
required to provide security. The Subordinated Securities will be unsecured and
will be subordinated and junior to all "Senior Indebtedness" (which for this
purpose includes any Senior Securities) to the extent set forth in the
applicable supplemental Indenture and Prospectus Supplement relating to such
series.
The Subordinated Securities will be direct, unsecured obligations of the
Company. The obligations of the Company pursuant to the Subordinated
Securities will be subordinate in right of payment to the extent set forth in
the Indenture and the applicable supplemental Indenture to all Senior
Indebtedness (including all Senior Securities) (in each case as defined in the
applicable supplemental Indenture). Except to the extent otherwise set forth in
a Prospectus Supplement, the Indenture does not contain any restriction on the
amount of Senior Indebtedness which the Company may incur.
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The terms of the subordination of a series of Subordinate Securities,
together with the definition of Senior Indebtedness related thereto, will be as
set forth in the applicable supplemental Indenture and the Prospectus
Supplement relating to such series.
The Subordinated Securities will not be subordinated to indebtedness of the
Company that is not Senior Indebtedness, and the creditors of the Company who do
not hold Senior Indebtedness will not benefit from the subordination provisions
described herein. In the event of the bankruptcy or insolvency of the Company
before or after maturity of the Subordinated Securities, other creditors would
rank pari passu with holders of the Subordinated Securities, subject, however,
to the broad equity powers of the Federal bankruptcy court pursuant to which
such court may, among other things, reclassify the claims of any series of
Subordinated Securities into a class of claims having a different relative
priority with respect to the claims of such other creditors or any other claims
against the Company.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with or on behalf
of a depositary located in the United States (a "Depositary") identified in the
Prospectus Supplement relating to such series. (SECTIONS 1.01 AND 2.01)
BOOK-ENTRY DEBT SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited with
or on behalf of a Depositary will be represented by a Global Security registered
in the name of such Depositary or its nominee. Upon the issuance of a Global
Security in registered form, the Depositary for such Global Security will
credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Global Security to
the accounts of institutions that have accounts with such Depositary or its
nominee (the "participants"). The accounts to be credited shall be designated
by the underwriters or agents of such Debt Securities or by the Company, if such
Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in such Global Securities will be limited to participants
or persons that may hold interests through participants. Ownership of
beneficial interests by participants in such Global Securities will be shown on,
and the transfer of such ownership interests will be effected only through,
records maintained by the Depositary or its nominee for such Global Security.
Ownership of beneficial interests in Global Securities by persons that hold
through participants will be shown on, and the transfer of such ownership
interests within such participant will be effected only through records
maintained by such participant. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such laws may impair the ability to transfer beneficial
interests in a Global Security.
So long as the Depositary for a Global Security in registered form, or its
nominee, is the registered owner of such Global Security, such Depositary or
such nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Global Security for all purposes under
the Indenture governing such Debt Securities. Except as set forth below, owners
of beneficial interests in such Global Securities will not be entitled to have
Debt Securities of the series represented by such Global Security registered in
their names, will not receive or be entitled to receive physical delivery of
Debt Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture.
Payment of principal of and premium, if any, and interest, if any, on Debt
Securities registered in the name of or held by a Depositary or its nominee will
be made to the Depositary or its nominee, as the case may be, as the registered
owner or holder of the Global Security representing such Debt Securities. None
of the Company, the Trustee, any Paying Agent or the Registrar for such Debt
Securities will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Company expects that the Depositary for Debt Securities of a particular
series, upon receipt of any payment of principal of and premium, if any, and
interest, if any, on a Global Security, will immediately credit participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Global Security as shown on the
records of such Depositary. The Company also expects that payments by
participants to owners of beneficial interests in such Global Security held
through such participants will be governed by standing instructions and
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customary practices, as is now the case with securities held for the accounts of
customers in bearer form or registered in "street name," and will be the
responsibility of such participants. However, the Company will have no control
over the practices of the Depositary or the participants, and there can be no
assurance that these practices will not be changed.
A Global Security may not be transferred except as a whole by the
Depositary for such Global Security to a nominee of such Depositary or by a
nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor of such
Depositary or a nominee of such successor. If a Depositary for Debt Securities
of a particular series is at any time unwilling or unable to continue as
Depositary and a successor Depositary is not appointed by the Company within 90
days, the Company will issue Debt Securities in definitive registered form in
exchange for the Global Security or Securities representing such Debt
Securities. In addition, the Company may at any time and in its sole
discretion determine not to have any Debt Securities in definitive registered
form in exchange for the Global Securities representing such Debt Securities.
In any such instance, an owner of a beneficial interest in a Global Security
will be entitled to physical delivery in definitive form of Debt Securities of
the series represented by such Global Security equal in principal amount to such
beneficial interest and to have such Debt Securities registered in its name.
(SECTION 2.10)
RESTRICTED SUBSIDIARIES
The various restrictive provisions of the Indenture apply to the Company
and its Restricted Subsidiaries. The term "Restricted Subsidiary" is defined
under the Indenture to include any Subsidiary existing as of the date of
original issuance of Securities or any corporation that is the successor to
such a Subsidiary. The term "Subsidiary" is defined under the Indenture to
mean any corporation of which at least a majority of the outstanding capital
stock having ordinary voting power to elect a majority of the board of
directors of said corporation is at the time owned by the Company or by the
Company and one or more Subsidiaries or by one or more Subsidiaries. (SECTION
1.01) As a result of the definitions of the terms "Restricted Subsidiary"
and "Subsidiary" in the Indenture, the restrictive provisions of the
Indenture will not apply to (i) any corporation coming into existence or
acquired after the date of original issuance of Securities or (ii) any
partnership or other entity that is not organized as a corporation, in each
case regardless of whether such corporation, partnership or other entity is
controlled by the Company or whether the Company owns a majority of the
outstanding capital stock of or other equity interests in such corporation,
partnership or other entity. As of the date of this Prospectus, a material
portion of the business of the Company is conducted through partnerships.
RESTRICTIONS ON SECURED DEBT
Unless otherwise indicated in the applicable supplemental Indenture and
Prospectus Supplement, the Indenture provides that, after the date of
original issuance of Securities, the Company will not, and will not cause or
permit a Restricted Subsidiary to, create, incur, assume or guarantee any
Secured Debt unless the Debt Securities will be secured equally and ratably
with (or prior to) such Secured Debt, with certain exceptions. The foregoing
restrictions do not prohibit the creation, incurrence, assumption or
guarantee of Secured Debt which is secured by: (i) certain Security Interests
to secure payment of the cost of and created prior to, contemporaneously with
or within 24 months after the acquisition, construction, development or
improvement of property; (ii) Security Interests on property at the time of
its acquisition by the Company or a Restricted Subsidiary, which Security
Interests secure obligations assumed by the Company or a Restricted
Subsidiary or Secured Debt incurred by the Company or a Restricted Subsidiary
prior to, at the time of, or within 24 months after the acquisition for the
purpose of financing all or part of the purchase price thereof, or on the
property of a corporation or other entity at the time it is merged into the
Company or a Restricted Subsidiary; (iii) Security Interests arising from
conditional sales agreements or title retention agreements with respect to
property acquired by the Company or a Restricted Subsidiary; (iv) Security
Interests securing Indebtedness of a Restricted Subsidiary owing to the
Company or to another Restricted Subsidiary; (v) Security Interests on any
property to secure indebtedness incurred in connection with the construction,
installation or financing of pollution control or abatement facilities or
other forms of Industrial revenue bond financing or indebtedness, issued or
guaranteed by the United States of America, any state thereof or any
department, agency or instrumentality of either or similar indebtedness
issued to or guaranteed for the benefit of a foreign government, any state
thereof or any department, agency or instrumentality of either or an
international finance agency or any division or department thereof, including
the World Bank, the International Finance Corp. and the Multilateral
Investment Guarantee Agency; (vi) purchase money Security Interests on
personal property, (vii) Security Interests on the stock, partnership or
other equity interest of the Company or any Restricted Subsidiary in any
Joint Venture or any subsidiary which owns an equity interest in such Joint
Venture to secure indebtedness, provided the amount of such indebtedness is
contributed and/or advanced solely to such Joint Venture, (viii) Security
Interests securing Senior Indebtedness (as defined in the applicable
supplemental
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Indenture and Prospectus Supplement), including without limitation, the
Senior Secured Debt Securities (as defined in the applicable supplemental
Indenture and Prospectus Supplement), (ix) Security Interests incurred to
secure the performance of surety or appeal bonds incurred in the ordinary
course of business, (x) Any Security Interest incidental to the normal
conduct of the business of the Company or any Restricted Subsidiary or the
ownership of its property or the conduct of the ordinary course of its
business (including, without limitation, (A) Security Interests incurred by
law, including mechanics', materialmens', carriers' or other like Security
Interests, (B) Certain Security Interests for taxes or assessments or similar
charges, (C) Zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property and certain other
minor irregularities of title, (D) Security Interests to secure the
performance of statutory obligations, tenders, bids, leases, progress
payments, performance or return-of-money bonds, performance or other similar
bonds or other obligations of a similar nature incurred in the ordinary
course of business and (E) Security Interests required by any contract or
statute in order to permit the Company or a Restricted Subsidiary of the
Company to perform any contract or subcontract made by it with or pursuant to
the requirements of a governmental entity; and (xi) any extension, renewal,
replacement or refinancing of any Security Interest referred to in the
foregoing, clauses (i) through (ix). (SECTION 4.03) A Security Interest
required by any contract or statute in order to permit the Company or a
Subsidiary to perform any contract or subcontract made by it with or at the
request of the United States government or any foreign government or
international finance agency, any state or any department thereof, or any
agency or instrumentality of either, or to secure partial, progress, advance
or other payments to the Company or any Subsidiary by any such entity
pursuant to the provisions of any contract or statute shall not be considered
the creation of a Security Interest.
In addition to the foregoing, the Company and its Restricted
Subsidiaries may create, incur, assume or guarantee Secured Debt, without
equally and ratably securing the Debt Securities, if immediately thereafter
the sum of: (i) the aggregate principal amount of all Secured Debt
outstanding (excluding Secured Debt permitted under clauses (i) through (xi)
of the immediately preceding paragraph); and (ii) all Attributable Debt (as
hereinafter defined) in respect of Sale and Leaseback Transactions (as
hereinafter defined) as of the date of determination would not exceed 15% of
Consolidated Net Tangible Assets. (SECTION 4.03)
The term "Consolidated Net Tangible Assets" is defined under the Indenture
to mean the total amount of assets which would be included on a consolidated
balance sheet of the Company and its subsidiaries under generally accepted
accounting principles (less applicable reserves and other properly deductible
terms) after deducting therefrom: (i) all short-term liabilities, except for
liabilities payable by their terms more than one year from the date of
determination (or renewable or extendible at the option of the obligor for a
period ending more than one year after such date) and liabilities in respect of
retiree benefits other than pensions and postemployment benefits for which the
Company is required to accrue pursuant to Statement of Financial Accounting
Standards No. 106 and No. 112, respectively; and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount, unamortized expense incurred in
the issuance of debt and other intangible assets. (SECTION 1.01) The term
"Consolidated Net Tangible Assets" includes the assets of majority owned
partnerships that do not constitute Restricted Subsidiaries. See "-- Restricted
Subsidiaries."
The term "Secured Debt" is defined under the Indenture to include any
indebtedness for borrowed money of, or upon which interest is payable by, the
Company or any Restricted Subsidiary or any such indebtedness of others
guaranteed by the Company or any Restricted Subsidiary which is secured by: (i)
a Security Interest in any property of the Company or any Restricted Subsidiary;
or (ii) a Security Interest in shares of stock owned by the Company or a
Restricted Subsidiary in a corporation or in equity interests owned by the
Company or a Restricted Subsidiary in a partnership or other entity not
organized as a corporation or in the rights of the Company or a Restricted
Subsidiary in respect of indebtedness for money borrowed by a corporation,
partnership or other entity in which the Company or a Restricted Subsidiary has
an equity interest. The securing in the foregoing manner of any such
indebtedness which immediately prior thereto was not Secured Debt shall be
deemed to be the creation of Secured Debt at the time security is given.
The term "Joint Venture" is defined under the Indenture to mean any
business enterprise in which the Company or a Restricted Subsidiary owns an
equity interest and in which one or more persons who are not Affiliates of
the Company or any Restricted Subsidiary also owns an equity interest.
(SECTION 1.01)
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS
The Indenture provides that the Company will not, and will not permit any
Restricted Subsidiary to enter into any Sale and Leaseback Transaction, unless:
(i) the Company or such Restricted Subsidiary would be entitled to incur Secured
Debt permitted by the Indenture (other than by reason of provisions described in
clauses (i) through (vi) of the first paragraph under "-- Restrictions on
Secured Debt" in an amount equal to the Attributable Debt in respect of such
Sale and Leaseback
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Transaction without equally and ratably securing the Debt Securities; or (ii)
notice is promptly given to the Trustee of the Sale and Leaseback
Transaction, fair value is received by the Company or a Restricted Subsidiary
for the property sold (as determined in good faith pursuant to a Board
Resolution delivered to the Trustee) and the Company or a Restricted
Subsidiary applies or commits to apply an amount equal to the net proceeds of
the property sold pursuant to the Sale and Leaseback Transaction to the
redemption of Debt Securities of any series or the retirement of other Funded
Debt of the Company or any Restricted Subsidiary not subordinate or junior in
right of payment to the Debt Securities. In lieu of applying all or any part
of such amount to the redemption of Debt Securities or the retirement of
Funded Debt, the Company may deliver Debt Securities to the Trustee for
cancellation and thereby reduce the amount to be applied to the redemption of
Debt Securities or retirement of Funded Debt by an amount equal to the
aggregate principal amount of Debt Securities delivered. (SECTION 4.04)
The term "Attributable Debt" is defined under the Indenture to mean, in
respect of a Sale and Leaseback Transaction, the present value (discounted at
the weighted average effective interest rate per annum of the outstanding Debt
Securities, of all series, compounded semi-annually) of the obligation of the
lessee for rental payments during the remaining term of the lease included in
such transaction, including any period for which such lease has been extended or
may, at the option of the lessor, be extended or, if earlier, until the earliest
date on which the lessee may terminate such lease upon payment of a penalty (in
which case the obligation of the lessee for rental payments shall include such
penalty), after excluding all amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water and utility rates
and similar charges. (SECTION 1.01)
The term "Sale and Leaseback Transaction" is defined under the Indenture to
include a sale or transfer made by the Company or a Restricted Subsidiary
(except a sale or transfer made to the Company or another Restricted Subsidiary)
of any property if such sale or transfer is made with the intention of leasing
such property to the Company or a Restricted Subsidiary, except (i) a lease for
a period not exceeding 60 months and (ii) a lease that secures or relates to
certain governmental obligations issued in connection with the financing of the
cost of construction or acquisition of such property. (SECTION 1.01)
RESTRICTIONS ON MERGERS, CONSOLIDATIONS AND TRANSFERS OF ASSETS
The Indenture provides that the Company will not consolidate or merge into
or sell, assign, transfer or lease all or substantially all of its assets to
another person unless: (i) the person is a corporation organized under the laws
of the United States of America or any state thereof; (ii) the person assumes by
supplemental indenture all the obligations of the Company relating to the Debt
Securities and the Indenture; and (iii) immediately after the transactions, no
Default exists. Upon any such consolidation, merger, sale, assignment or
transfer, the successor corporation will be substituted for the Company under
the Indenture. The successor corporation may then exercise every power and
right of the Company under the Indenture, and the Company will be released from
all of its liabilities and obligations in respect of the Debt Securities and the
Indenture. In the event the Company leases all or substantially all of its
assets, the lessee corporation will be the successor to the Company and may
exercise every power and right of the Company under the Indenture, but the
Company will not be released from its obligations to pay the principal of and
premium, if any, and interest, if any, on the Debt Securities. (SECTION 5.01)
AMENDMENTS OF THE INDENTURE
Amendments of the Indenture or the Debt Securities of any series may be
made by the Company and the Trustee without the consent of the Holders of such
Debt Securities: (i) to cure any ambiguity, defect or inconsistency or to make
such provisions with respect to matters or questions arising under the Indenture
as may be necessary or desirable and not inconsistent with the Indenture or with
any indenture supplemental thereto or any Board Resolution establishing any
series of Debt Securities, provided that such amendment does not adversely
affect the rights of the Holders thereof; (ii) to comply with the merger or sale
of assets provision in the Indenture; (iii) to add additional covenants; (iv) to
establish the form or terms of Debt Securities of any additional series; (v) to
provide for the acceptance of appointment of a successor Trustee; (vi) to
provide for the issuance of Debt Securities with interest coupons with respect
to any such series; or (vii) to provide for the exchange of Global Securities
for Debt Securities issued in definitive form and to make all appropriate
changes for such purpose. (SECTION 9.01)
Amendments of the Indenture affecting the Debt Securities of any series or
amendments of the Debt Securities themselves of such series may be made by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Debt Securities of such series, provided that,
without the consent of each Holder affected,
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no such amendment shall be made which will: (i) reduce the percentage in
principal amount of the Debt Securities whose Holders must consent to an
amendment; (ii) reduce the rate of or change the time for payment of interest
on any Debt Security; (iii) reduce the principal of, change the Stated
Maturity of, reduce the amount payable on redemption of or alter the
requirements with respect to the mandatory redemption, if any, of any Debt
Security; (iv) make any Debt Security payable in money other than that stated
in such Debt Security; or (v) make any change in the Indenture provisions
with respect to waiver of existing Defaults, rights of Holders to receive
payment and to bring suit for the enforcement of such rights, or the
requirement of obtaining the written consent of each affected Holder to
certain amendments of the Indenture or any Debt Security. (SECTION 9.02)
EVENTS OF DEFAULT
An "Event of Default" with respect to any series of Debt Securities is
defined under the Indenture to include: (i) failure for 30 days to pay any
interest on any Debt Security of such series when due; (ii) failure to pay the
principal of and premium, if any, of any Debt Security of such series when due;
(iii) failure for 90 days after receipt of notice to perform any other agreement
of the Company with respect to Debt Securities of such series or the Indenture
for the benefit of Debt Securities of such series; (iv) certain events of
bankruptcy, insolvency or reorganization of the Company or a Material
Subsidiary; and (v) any other event established as an event of default in
accordance with the Indenture with respect to Debt Securities of such series.
(SECTION 6.01)
The term "Material Subsidiary" is defined under the Indenture to mean any
consolidated subsidiary of the Company (whether a corporation or a partnership
or other entity not organized as a corporation) if such consolidated subsidiary
would be deemed as of the date of determination a "significant subsidiary" under
the rules of the Commission. (SECTION 1.01)
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a Default in respect of any series of Debt Securities, give to the
Holders of the Debt Securities of such series notice of all uncured and unwaived
Defaults known to it; provided, however, that, except in the case of a Default
in the payment of the principal of or any interest on any of the Debt Securities
of such series, such Trustee may withhold such notice if it in good faith
determines that the withholding of such notice is in the interest of the Holders
of the Debt Securities of such series. (SECTION 7.05)
If an Event of Default shall occur and be continuing with respect to any
series of Debt Securities, the Trustee may proceed to protect and enforce its
rights and those of the Holders of Debt Securities of such series. (SECTION
6.03) If any Event of Default shall occur and be continuing with respect to a
series of Debt Securities, either the Trustee or the Holders of at least 25% in
principal amount of the Debt Securities of such series may declare the principal
of and accrued interest on all the Debt Securities of such series to be due and
payable. The Holders of a majority in principal amount of the Debt Securities of
such series may rescind an acceleration and its consequences, but only if all
existing Events of Default with respect to the Debt Securities of such series
have been cured or waived, except nonpayment of principal or interest that has
become due solely because of the acceleration. No Event of Default with respect
to a single series of indebtedness issued under an Indenture (and any
supplemental indentures) necessarily constitutes an Event of Default with
respect to any other series of indebtedness issued thereunder. (SECTION 6.02)
The Holders of a majority in principal amount outstanding of the Debt Securities
of such series may direct the Trustee as to the time, method and place of
pursuing any remedy available to it or exercising any trust or power conferred
on it with respect to the Debt Securities of such series and may waive any
existing Default with respect to the Debt Securities of such series, except a
Default in the payment of principal of or interest on any Debt Security of such
series. (SECTIONS 6.04 AND 6.05)
The Company is required to furnish to the Trustee annually a statement as
to the absence of a Default. (SECTION 4.05)
DEFEASANCE OF THE INDENTURE AND DEBT SECURITIES
The Company may at any time satisfy its obligations with respect to
payments of principal of and premium, if any and interest, if any, on the
Debt Securities of any series by irrevocably depositing in trust with the
Trustee money or U.S. Government Obligations or a combination thereof
sufficient to make such payments when due without reinvestment thereof. If
such a deposit is sufficient to make all payments of: (i) interest, if any,
on the Debt Securities of such series prior to and on their redemption or
maturity, as the case may be; and (ii) principal of and premium, if any, on
the Debt Securities of such series when due upon redemption or at Stated
Maturity, as the case may be, then all the obligations of the Company with
respect to the Debt Securities of such series and the Indenture insofar as it
relates to the Debt Securities of such series will
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be satisfied and discharged (except as otherwise provided in the Indenture).
In the event of any such defeasance, Holders of the Debt Securities of such
series would be able to look only to such trust fund for payment of principal
of and premium, if any, and interest, if any, on the Debt Securities of such
series until Stated Maturity or redemption. (SECTIONS 8.01, 8.02 AND 8.03)
Such a Trust may only be established if, among other things: (i) the
Company has obtained an opinion of legal counsel (which may be based on a ruling
from, or published by, the Internal Revenue Service) to the effect that Holders
of the Debt Securities of such series will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred; and (ii) at that time, with
respect to any series of Debt Securities then listed on the New York Stock
Exchange, the rules of the New York Stock Exchange do not prohibit such deposit
with the Trustee. (SECTION 8.02)
COVENANT DEFEASANCE
On substantially the same terms and conditions as described in
"--Defeasance of the Indenture and Debt Securities," the Company may be relieved
from the obligation to comply with certain covenants in the Indenture, including
those described in "--Restriction on Secured Debt", "--Restrictions on Sale and
Leaseback Transactions", and "--Restrictions on Mergers, Consolidations and
Transfer of Assets." (SECTIONS 8.01, 8.02 and 8.03).
ANNUAL REPORTS BY THE TRUSTEE
To the extent required by the Trust Indenture Act, the Trustee shall,
within 60 days after May 15 in each year, furnish to each Holder of Debt
Securities an annual report that complies with Section 313 of the Trust
Indenture Act. (SECTION 7.06) The Indenture does not require that the Company
or the Trustee furnish any other reports, documents or information to the
Holders of Debt Securities.
NOTICES AND COMMUNICATIONS
Notices or communications to Holders of Debt Securities will be given by
first-class mail or by overnight air courier to the addresses of such Holders as
they appear in the Security Register. (SECTION 10.02)
Holders of Debt Securities may communicate with other Holders with respect
to their rights under the Indenture or the Debt Securities pursuant to the
provisions of Section 312(b) of the Trust Indenture Act which require a trustee
to provide security holders access to information regarding the addresses of
other security holders in certain situations. (SECTION 10.03)
GOVERNING LAW
The Indenture and the Debt Securities will be governed by and construed in
accordance with the laws of the State of Texas. (SECTION 10.13)
INFORMATION CONCERNING THE TRUSTEE
The Trustee under the Indenture will be named in the applicable Prospectus
Supplement. The Company may maintain other relations with the Trustee, including
being a party to other indentures with the Trustee.
DESCRIPTION OF CAPITAL STOCK
The Company is authorized by its Restated Certificate of Incorporation,
as amended (the "Dresser Certificate"), to issue a total number of shares of
all classes of capital stock equal to 410,000,000 shares, of which
400,000,000 are shares of Common Stock and 10,000,000 are shares of Preferred
Stock. At the close of business on June 30, 1997, 175,116,958 shares of
Common Stock were issued and outstanding (exclusive of 9,748,773 shares of
Common Stock held in treasury). Attached to each share of Common Stock is a
Preferred Stock Purchase Right (a "Purchase Right"). The Common Stock and
the Purchase Rights are more fully described in the Registration Statement on
Form 8-A, as amended by Amendment
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No. 1 to such Registration Statement, incorporated herein by reference. See
"Incorporation of Certain Documents by Reference." As of June 30, 1997
2,000,000 shares of Preferred Stock had been designated as Series A Junior
Preferred Stock and were subject to the Purchase Right as noted above. As of
that same date, no shares of Preferred Stock have been issued.
The shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is authorized, within the limitations
contained in the Dresser Certificate, to fix before issue with respect to each
series, among other things, the designation and number of shares to constitute
such series, the annual dividend rate, whether such dividends will be
cumulative, the time and price of redemption and the liquidation preference
applicable to the series, whether or not the series shall be subject to the
operation of a sinking fund and, if so, the terms and conditions thereof,
whether or not the shares of such series shall be convertible into shares of
stock of any other class or classes and the terms and provisions of such
conversion rights, the voting powers, if any, of the shares of such series and
other optional or special rights, privileges and powers.
Reference is made to the Prospectus Supplement relating to the series of
Preferred Stock being offered for the specific terms thereof, including: (i)
the title and stated value of such Preferred Stock; (ii) the number of shares of
such Preferred Stock offered, the liquidation preference per share and the
purchase price of such Preferred Stock; (iii) the dividend rate(s), period(s)
and/or payment date(s) or method(s) of calculation thereof applicable to such
Preferred Stock; (iv) whether dividends shall be cumulative or non-cumulative
and, if cumulative, the date from which dividends on such Preferred Stock shall
accumulate; (v) the procedures for any auction and remarketing, if any, for such
Preferred Stock; (vi) the provisions for a sinking fund, if any, for such
Preferred Stock; (vii) the provisions for redemption, if applicable, of such
Preferred Stock; (viii) any listing of such Preferred Stock on any securities
exchange; (ix) the terms and conditions, if applicable, upon which such
Preferred Stock will be convertible into Common Stock, including the conversion
price (or manner of calculation thereof) and conversion period; (x) voting
rights, if any, of such Preferred Stock; (xi) a discussion of any material
and/or special Federal income tax considerations applicable to such Preferred
Stock; (xii) the relative ranking and preferences of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up of the
affairs of the Company; (xiii) any limitations on issuance of any series of
Preferred Stock ranking senior to or on a parity with such series of Preferred
Stock as to dividend rights and rights upon liquidation, dissolution of winding
up of the affairs of the Company; and (xiv) any other specific terms,
preferences, rights, limitations or restrictions of such Preferred Stock.
The transfer agent and registrar for each series of Preferred Stock and
Common Stock will be described in the related Prospectus Supplement.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby in and/or outside
the United States: (i) directly to purchasers; (ii) through agents; (iii)
through underwriters; (iv) through dealers; or (v) through a combination of any
such methods of sale.
The distribution of the Securities may be effected from time to time in one
or more transactions either: (i) at a fixed price or prices, which may be
changed; (ii) at market prices prevailing at the time of sale; (iii) at prices
related to such prevailing market prices; or (iv) at negotiated prices.
Offers to purchase the Securities may be solicited directly by the Company
or by agents designated by the Company from time to time. Any such agent, which
may be deemed to be an underwriter as that term is defined in the Securities
Act, involved in the offer or sale of the Securities in respect of which this
Prospectus is delivered will be named, and any commissions payable by the
Company to such agent will be set forth in the Prospectus Supplement. Unless
otherwise indicated in the Prospectus Supplement any such agent will be acting
on a best efforts basis for the period of its appointment. Agents may be
customers of, engaged in transactions with, or perform services for, the Company
in the ordinary course of business.
If an underwriter or underwriters are utilized in the sale, the Company
will execute an underwriting agreement with such underwriter or underwriters at
the time of sale to them, and the names of the underwriters and the terms of the
transactions will be set forth in the Prospectus Supplement, which will be used
by the underwriters to make resales of the Securities. Unless otherwise
indicated in the Prospectus Supplement, the obligations of the underwriters to
purchase the Securities will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all the Securities described in such
Prospectus Supplement if any are purchased.
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If a dealer is utilized in the sale of the Securities in respect of which
this Prospectus is delivered, the Company will sell such Securities to the
dealer, as principal. The dealer may then resell such Securities to the public
at varying prices to be determined by such dealer at the time of resale.
Underwriters, dealers, agents, and other persons may be entitled, under
agreements which may be entered into with the Company, to indemnification
against, or contribution with respect to, certain civil liabilities, including
liabilities under the Securities Act.
Underwriters and agents may engage in transactions with, or perform
services for, the Company in the ordinary course of business.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon by
Rebecca R. Morris, Vice President - Corporate Counsel and Secretary of the
Company (who owns 10,740 shares of Common Stock and holds options to purchase an
additional 21,650 shares of Common Stock coupled with 4,278 restrictive
incentive stock awards.).
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Company's Annual Report on Form 10-K for the year ended October
31, 1996 have been so incorporated in reliance on the report of Price Waterhouse
LLP, independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is a statement of the estimated expenses incurred by the
Company in connection with the issuance and distribution of the securities being
registered pursuant to this Registration Statement, other than any applicable
underwriting discounts.
AMOUNT
Securities and Exchange Commission Registration Fee . . . . . . . . $227,272.73
*Trustee Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . 26,000.00
*Printing and Engraving Expenses . . . . . . . . . . . . . . . . . . . 38,000.00
*Legal Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . 20,000.00
*Accounting Fees and Expenses. . . . . . . . . . . . . . . . . . . . . 67,450.00
*Transfer Agent and Registrar Fees and Expenses. . . . . . . . . . . . 25,200.00
*Blue Sky Fees and Expenses (including legal fees and expenses). . . . 10,000.00
*Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000.00
-----------
Total. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .423,922.73
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Section 145 of the Delaware General Corporation Law (the
"DGCL"), a corporation may indemnify any person who is or was a party or is
threatened to be made a party to any action, suit, or proceeding (other than an
action by or in the right of the corporation) by reason of the fact that he is
or was a director, officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement, actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. In an action by or in the right of
the Company, a corporation may indemnify any such person against expenses
actually and reasonably incurred by him in connection with the defense or
settlement of such action if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in respect of any
claim or issue as to which such person is adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of Chancery or
the court in which such action was brought shall determine that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses, which
the court shall deem proper. Indemnification, unless ordered by the court,
shall be made by the corporation only as authorized in the specific case upon a
determination that indemnification of such person is proper in the circumstances
because he has met the applicable standard of conduct. Such determination is
made: (i) by the board of directors by a majority vote of a quorum consisting of
disinterested directors; (ii) by independent legal counsel in a written opinion;
(iii) by the stockholders. To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or otherwise in defense
of any such matter, Section 145 requires that the corporation indemnify him
against expenses actually and reasonably incurred by him in his defense.
Further, expenses may be paid by the corporation in advance of final disposition
of the matter upon receipt of an undertaking by or on behalf of such director,
officer, employee or agent to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified. Such indemnification and
advancement of expenses is not deemed exclusive of any other right to which a
director or officer might be entitled under any by-law, agreement, vote of
stockholders or disinterested directors or otherwise. Section 145 also empowers
a corporation to purchase and maintain insurance on behalf of any person who
might be indemnified thereunder whether or not the corporation would have the
power to indemnify him against such liability under such Section.
II-1
<PAGE>
The Company's Restated Certificate of Incorporation, as amended, provides
for indemnification of certain persons including directors and officers to the
fullest extent permitted under Section 145 of the DGCL.
Insurance is maintained by the Company covering certain expenses, liability
or losses which may be incurred by reason of his being a director or officer of
the Company or a subsidiary corporation, partnership, joint venture, trust or
other enterprise.
ITEM 16. EXHIBITS
The Exhibits are listed in the Exhibit Index immediately preceding the
Exhibits.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes that: (1) 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; and (2) for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment that
contains
II-2
<PAGE>
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.
(d) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the Trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act ("Act")
in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed by the Securities Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Dallas, State of Texas, on July 3, 1997.
DRESSER INDUSTRIES, INC.
By: /s/ KENNETH J. KOTARA
-----------------------------
Kenneth J. Kotara,
Controller
Pursuant to the requirements of the Securities Exchange Act of 1933,
this registration statement has been signed below by the following persons on
behalf of the Registrant and in the capacities indicated on July 3, 1997.
SIGNATURE TITLE
--------- -----
*WILLIAM E. BRADFORD Chairman of the Board, Chief
- ----------------------------------- Executive Officer and Director
(William E. Bradford, Director) (Principal Executive Officer)
/s/ GEORGE H. JUETTEN Vice President and Chief Financial
- ----------------------------------- Officer (Principal Financial Officer)
(George H. Juetten)
/s/ KENNETH J. KOTARA Controller
- ----------------------------------- (Principal Accounting Officer)
(Kenneth J. Kotara)
*SAMUEL B. CASEY, JR. *J. LANDIS MARTIN
- ----------------------------------- -----------------------------------
(Samuel B. Casey, Jr., Director) (J. Landis Martin, Director)
*LAWRENCE S. EAGLEBURGER *LIONEL H. OLMER
- ----------------------------------- -----------------------------------
(Lawrence S. Eagleburger, Director) (Lionel H. Olmer, Director)
*SYLVIA A. EARLE, PH.D. *JAY A. PRECOURT
- ----------------------------------- -----------------------------------
(Sylvia A. Earle, Ph.D., Director) (Jay A. Precourt, Director)
*RAWLES FULGHAM *DONALD C. VAUGHN
- ----------------------------------- -----------------------------------
(Rawles Fulgham, Director) (Donald C. Vaughn, Director)
*JOHN A. GAVIN *RICHARD W. VIESER
- ----------------------------------- -----------------------------------
(John A. Gavin, Director) (Richard W. Vieser, Director)
*RAY L. HUNT
- -----------------------------------
(Ray L. Hunt, Director)
*By: /s/ ALICE (ANDE) HINDS
-------------------------------
Alice (Ande) Hinds
(Attorney-In-Fact)
II-4
<PAGE>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
*** 1.1 Form of Underwriting Agreement (Debt Securities).
*** 1.2 Form of Underwriting Agreement (Preferred Stock).
*** 1.3 Form of Underwriting Agreement (Common Stock).
* 4.1 Restated Certificate of Incorporation of Registrant and
amendments thereto. (Incorporated by reference to
Exhibit 3(i) to Registrant's Form 10-Q/A for the Quarter
ended April 30, 1996).
* 4.2 By-Laws, as amended of Registrant. (Incorporated by
reference to Exhibit 3.2 to Registrant's Form 10-K for the
year ended October 31, 1996).
* 4.3 Rights Agreement dated August 16, 1990, between Registrant
and Harris Trust Company of New York as Rights Agent.
(Incorporated by reference to Exhibit 1 to Registration
Statement on Form 8-A filed on August 30, 1990 as amended by
Amendment No. 1 on Form 8 filed on October 3, 1990).
** 4.4 Form of Indenture.
** 5 Form of opinion of Rebecca R. Morris as to the legality
of the securities being registered.
** 12 Statement of computation of ratio of earnings to fixed
charges.
** 23.1 Consent of Rebecca R. Morris is contained in her opinion
attached as Exhibit 5.
** 23.2 Consent of Price Waterhouse LLP.
** 24 Powers of Attorney.
** 25 Statement as to Eligibility of the Trustee under the Trust
Indenture Act of 1939, as amended, on Form T-1.
* 27 Financial Data Schedule is contained in Exhibit 27 to the
Company's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1997. (Pursuant to Item 601(c)(iv) of
Regulation S-K, the Financial Data Schedule is not deemed
to be "filed" for purposes of Section 11 of the Securities
Act of 1933, as amended, or Section 18, of the Securities
Exchange Act of 1934, as amended.)
* Incorporated by reference
** Filed herewith
*** To be filed as an exhibit to a current report on Form 8-K.
II-5
<PAGE>
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
DRESSER INDUSTRIES, INC.
AND
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION,
Trustee
--------------------
INDENTURE
DATED AS OF JULY 3, 1997
--------------------
Unsecured Debentures, Notes and Other
Evidences of Indebtedness
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
- ----------- -----------------
310 (a)(1) ................................................. 7.10
(a)(2) ................................................. 7.10
(a)(3) ................................................. N.A.
(a)(4) ................................................. N.A.
(a)(5) ................................................. 7.10
(b) .................................................... 7.08; 7.10; 10.02
(c) .................................................... N.A.
311 (a) .................................................... 7.11
(b) .................................................... 7.11
(c) .................................................... N.A.
312 (a) .................................................... 2.05
(b) .................................................... 10.03
(c) .................................................... 10.03
313 (a) .................................................... 7.06
(b)(1) ................................................. N.A.
(b)(2) ................................................. 7.06
(c) .................................................... 10.02
(d) .................................................... 7.06
314 (a) .................................................... 4.02; 4.05; 10.02
(b) .................................................... N.A.
(c)(1) ................................................. 10.04
(c)(2) ................................................. 10.04
(c)(3) ................................................. N.A.
(d) .................................................... N.A.
(e) .................................................... 10.05
(f) .................................................... N.A.
315 (a) .................................................... 7.01(b)
(b) .................................................... 7.05; 10.02
(c) .................................................... 7.01(a)
(d) .................................................... 7.01(c)
(e) .................................................... 6.11
316 (a)(last sentence) ..................................... 2.09
(a)(1)(A) .............................................. 6.05
(a)(1)(B) .............................................. 6.04
(a)(2) ................................................. N.A.
(b) .................................................... 6.07
(c) .................................................... 10.12
317 (a)(1) ................................................. 6.08
(a)(2) ................................................. 6.09
(b) .................................................... 2.04
318 (a) .................................................... 10.01
N.A. means Not Applicable.
<PAGE>
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions ................................................ 1
SECTION 1.02. Other Definitions .......................................... 6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act .......... 6
SECTION 1.04. Rules of Construction ...................................... 7
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating ............................................. 7
SECTION 2.02. Execution and Authentication ................................ 9
SECTION 2.03. Registrar and Paying Agent ................................. 12
SECTION 2.04. Paying Agent to Hold Money in Trust ........................ 12
SECTION 2.05. Securityholder Lists ....................................... 12
SECTION 2.06. Transfer and Exchange ...................................... 13
SECTION 2.07. Replacement Securities ..................................... 13
SECTION 2.08. Outstanding Securities ..................................... 14
SECTION 2.09. Required Principal Amount ................................. 14
SECTION 2.10. Temporary Securities; Global Securities .................... 14
SECTION 2.11. Cancellation ............................................... 17
SECTION 2.12. Defaulted Interest ......................................... 17
ARTICLE 3
REDEMPTION; SINKING FUND
SECTION 3.01. Notices to Trustee ......................................... 17
SECTION 3.02. Selection of Securities to be Redeemed ..................... 18
SECTION 3.03. Notice of Redemption ....................................... 18
SECTION 3.04. Effect of Notice of Redemption ............................ 19
SECTION 3.05. Deposit of Redemption Price ................................ 19
SECTION 3.06. Securities Redeemed in Part ............................... 19
SECTION 3.07. Sinking Fund ............................................... 19
SECTION 3.08. Terms of Securities to Govern .............................. 20
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PAGE
----
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities ...................................... 21
SECTION 4.02. SEC Reports ................................................ 21
SECTION 4.03. Restriction on Creation of Secured Debt .................... 21
SECTION 4.04. Restriction on Sale and Leaseback Transactions ............. 24
SECTION 4.05. Certificate to Trustee ..................................... 25
SECTION 4.06. Maintenance of Office or Agency ............................ 25
SECTION 4.07. Further Assurances ......................................... 25
ARTICLE 5
SUCCESSORS
SECTION 5.01. When Company May Merge, etc. ............................... 26
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default .......................................... 26
SECTION 6.02. Acceleration ............................................... 28
SECTION 6.03. Other Remedies ............................................. 28
SECTION 6.04. Waiver of Past Defaults .................................... 28
SECTION 6.05. Control by Majority ........................................ 28
SECTION 6.06. Limitation on Suits ........................................ 29
SECTION 6.07. Rights of Holders to Receive Payment ....................... 29
SECTION 6.08. Collection Suit by Trustee ................................. 29
SECTION 6.09. Trustee May File Proofs of Claim ........................... 30
SECTION 6.10. Priorities ................................................. 30
SECTION 6.11. Undertaking for Costs ..................................... 30
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee .......................................... 31
SECTION 7.02. Rights of Trustee .......................................... 32
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PAGE
----
SECTION 7.03. Individual Rights of Trustee ............................... 33
SECTION 7.04. Trustee's Disclaimer ....................................... 33
SECTION 7.05. Notice of Defaults ......................................... 33
SECTION 7.06. Reports by Trustee to Holders .............................. 33
SECTION 7.07. Compensation and Indemnity ................................. 33
SECTION 7.08. Replacement of Trustee ..................................... 34
SECTION 7.09. Successor Trustee by Merger, etc. .......................... 36
SECTION 7.10. Eligibility, Disqualification .............................. 36
SECTION 7.11. Preferential Collection of Claims Against Company .......... 37
ARTICLE 8
DISCHARGE OF INDENTURE AND SECURITIES
SECTION 8.01. Satisfaction and Discharge of Indenture .................... 37
SECTION 8.02. Legal Defeasance and Covenant Defeasance ................... 38
SECTION 8.03. Satisfaction and Discharge of Securities ................... 39
SECTION 8.04. Application by Trustee of Money or U.S. Government
Obligations ................................................ 40
SECTION 8.05. Repayment of Money or U.S. Government Obligations by
Paying Agent ............................................... 40
SECTION 8.06. Return of Money, Securities or U.S. Government
Obligations ................................................ 40
SECTION 8.07 Reinstatement ............................................... 41
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders ................................. 41
SECTION 9.02. With Consent of Holders .................................... 42
SECTION 9.03. Compliance with Trust Indenture Act ........................ 42
SECTION 9.04. Effect of Consents ......................................... 42
SECTION 9.05. Notation on or Exchange of Securities ...................... 43
SECTION 9.06. Trustee Protected .......................................... 43
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<PAGE>
ARTICLE 10
MISCELLANEOUS
PAGE
----
SECTION 10.01. Trust Indenture Act Controls .............................. 43
SECTION 10.02. Notices ................................................... 43
SECTION 10.03. Communications by Holders with Other Holders .............. 44
SECTION 10.04. Certificate and Opinion as to Conditions Precedent ........ 44
SECTION 10.05. Statements Required in Certificate or Opinion ............. 44
SECTION 10.06. Rules by Trustee and Agents ............................... 45
SECTION 10.07. Legal Holidays ............................................ 45
SECTION 10.08. No Recourse Against Others ................................ 45
SECTION 10.09. Interest Limitation ....................................... 45
SECTION 10.10. Duplicate Originals ....................................... 46
SECTION 10.11. Addresses ................................................. 46
SECTION 10.12. Record Date for Action by Securityholders ................. 47
SECTION 10.13. Governing Law ............................................. 47
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<PAGE>
INDENTURE, dated as of July 3, 1997, between DRESSER INDUSTRIES, INC., a
corporation incorporated and existing under the laws of the State of Delaware
("Company"), and TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking
association ("Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the holders of the Company's unsecured debentures,
notes and other evidences of indebtedness from time to time authenticated and
delivered pursuant to this Indenture, which may be issued in one or more series,
each such series ranking PARI PASSU with each other series:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" means any person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Company.
"Agent" means any Registrar or Paying Agent.
"Attributable Debt" means, in respect of a Sale and Leaseback Transaction,
the present value (discounted at the weighted average effective interest rate
per annum of the outstanding Securities of all series, compounded semiannually)
of the obligation of the lessee for rental payments during the remaining term of
the lease entered into in connection with such transaction, including any period
for which such lease has been extended or may, at the option of the lessor, be
extended or, if earlier, until the earliest date on which the lessee may
terminate such lease upon payment of a penalty (in which case for purposes of
this definition the obligation of the lessee for rental payments shall include
such penalty), after excluding all amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water and utility rates
and similar charges. Notwithstanding the foregoing, there shall not be deemed
to be any "Attributable Debt" in respect of a Sale and Leaseback Transaction if
the Company is authorized to enter into such transaction pursuant to clause (b)
of Section 4.04.
"Board of Directors" or "Board" means the Board of Directors of the Company
or any authorized committee of the Board of Directors.
-1-
<PAGE>
"Board Resolution" means a copy of a resolution delivered to the Trustee
and 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.
"Company" means the party named as such above until a successor replaces it
pursuant to the applicable provisions of this Indenture, and thereafter shall
mean the successor.
"Company Order" means a written order of the Company, signed by two
Officers, one of whom shall be the principal executive, financial or accounting
officer of the Company, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total amount of assets which
would be included on a consolidated balance sheet of the Company and its
subsidiaries (whether such subsidiaries are corporations or partnerships or
other entities not organized as corporations) under generally accepted
accounting principles (less applicable reserves and other properly deductible
items) after deducting therefrom:
(a) all short-term liabilities and liability items, except for
(i) liabilities and liability items payable by their terms more than
one year from the date of determination (or renewable or extendible at
the option of the obligor for a period ending more than one year after
such date) and (ii) liabilities in respect of retiree benefits other
than pensions and post-employment benefits for which the Company is
required to accrue pursuant to Statement of Financial Accounting
Standards No. 106 and No. 112, respectively; and
(b) all goodwill, trade names, trademarks, patents, unamortized
debt discount, unamortized expense incurred in the issuance of debt and
other intangible assets.
"Consolidated Net Tangible Assets" includes the assets of majority-owned
partnerships that do not constitute "Restricted Subsidiaries".
"Default" means any event which is, or after notice or the passage of time,
or both, would be, an Event of Default.
"Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall be
designated by the Company pursuant to Section 2.01 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include
-2-
<PAGE>
each person who is then a Depositary hereunder, and if at any time there is
more than one such person, shall mean or include all such persons.
"Depositary" as used with respect to the Securities of any series shall mean
the Depositary with respect to the Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" means all indebtedness or obligations which by its terms is
payable more than 12 months after the date of determination (or which is
renewable or extendible at the option of the obligor on such indebtedness to a
date more than 12 months after the date of determination) which should under
generally accepted accounting principles be shown as a liability on the
consolidated financial statements of the Company and its consolidated
subsidiaries.
"Generally accepted accounting principles" when used with respect to any
computation or interpretation required or permitted hereunder means such
accounting principles which are generally accepted as of the date of this
Indenture.
"Global Security" means a Security registered in the name of the Depositary
or its nominee evidencing all or part of a series of Securities, which is
executed by the Company and authenticated and delivered to the Depositary or
pursuant to the Depositary's instructions, all in accordance with this Indenture
and pursuant to a Company Order.
"Holder" or "Securityholder" means a person in whose name a Security is
registered in the Security Register.
"Indenture" means this Indenture as amended from time to time pursuant to
the applicable provisions of this Indenture, and shall include the form and
terms of each particular series of Securities established pursuant to Section
2.01 hereof.
"Interest Payment Date" means the date on which payment of an installment
of interest on the Securities of any series is due.
"Joint Venture" means any business enterprise in which the Company or a
Restricted Subsidiary owns an equity interest and in which one or more
persons who are not Affiliates of the Company or any Restricted Subsidiary
also owns an equity interest.
"Material Subsidiary" means any consolidated subsidiary of the Company
(whether a corporation or a partnership or other entity not organized as a
corporation) if such
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<PAGE>
consolidated subsidiary would be deemed a "significant subsidiary" under the
rules and regulations promulgated by the SEC under the Securities Act.
"Maturity" when used with respect to any Security means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption, pursuant to a sinking fund or otherwise.
"Officer" means the Chairman of the Board, Vice Chairman of the Board,
President, any Vice President, the Treasurer, any Assistant Treasurer, the
Secretary or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one of
whom shall be the principal executive, financial or accounting officer.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Company.
"Original Issue Discount Security" means any Security which provides for an
amount less than the stated principal amount thereof to be due and payable upon
declaration of acceleration of the Stated Maturity thereof pursuant to Section
6.02.
"Principal" of a Security means the principal of the Security, plus the
premium, if any, on the Security.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 2.01.
"Restricted Subsidiary" means any Subsidiary existing as of the date of
original issuance of Securities or any corporation that is the successor to
such a Subsidiary.
"Sale and Leaseback Transaction" means any sale or transfer made by the
Company or one or more Restricted Subsidiaries (except a sale or transfer made
to the Company or one or more Restricted Subsidiaries) of any property which (in
the case of a property which is a manufacturing plant, warehouse, or office
building) has been in operation, use, or commercial production (exclusive of
test and start-up periods) by the Company or any Restricted Subsidiary for more
than 120 days prior to such sale or transfer or which (in the case of a case or
a property which is a parcel of real property other than a manufacturing plant,
warehouse or office building) has been owned by the Company or any Restricted
Subsidiary for more than 120 days prior to such sale or transfer, if such sale
or transfer is
-4-
<PAGE>
made with the intention of leasing, or as part of an arrangement involving
the lease, of such property to the Company or a Restricted Subsidiary, except
(a) a lease for a period not exceeding 60 months (exclusive of any renewal
options granted thereunder to the Company or any Restricted Subsidiary), made
with the intention that the use of the leased property by the Company or such
Restricted Subsidiary will be discontinued on or before the expiration of
such period and (b) a lease that secures or relates to obligations issued by
the United States of America or any state, territory or possession of the
United States of America, or any political subdivision of any of the
foregoing, or of the District of Columbia, in connection with the financing
of the cost of construction or acquisition of such property or a part
thereof.
"SEC" means the Securities and Exchange Commission.
"Secured Debt" means (i) any indebtedness for money borrowed by, or
evidenced by a note or other similar instrument of, the Company or a Restricted
Subsidiary, (ii) any other indebtedness of the Company or Restricted Subsidiary
on which by the terms of such indebtedness interest is paid or payable,
including obligations evidenced or secured by leases, installment sales
agreements or other instruments, or (iii) any indebtedness or obligations of
others of a type referred to in clause (i) or (ii) above that are guaranteed,
directly or indirectly, by the Company or any Restricted Subsidiary, which in
any such case is secured by (a) a Security Interest in any property of the
Company or any Restricted Subsidiary or portion thereof or (b) a Security
Interest in any shares of stock owned directly or indirectly by the Company or a
Restricted Subsidiary in a corporation or in equity interests owned by the
Company or a Restricted Subsidiary in a partnership or other entity not
organized as a corporation or in the rights of the Company or any Restricted
Subsidiary in respect of indebtedness for money borrowed by a corporation,
partnership or other entity in which the Company or a Restricted Subsidiary has
an equity interest. The securing in the foregoing manner of any indebtedness
which immediately prior thereto was not Secured Debt shall be deemed to be the
creation of Secured Debt at the time such security is given. The amount of
Secured Debt at any time outstanding shall be the maximum aggregate amount then
owing thereon by the Company and its Restricted Subsidiaries.
"Securities" means the unsecured debentures, notes and other evidences of
indebtedness (including any Global Securities) authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance or other
security interest which secures payment or performance of an obligation.
-5-
<PAGE>
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof means the date specified in such Security as the fixed date
on which the principal of such Security or such installment of principal is due
and payable.
"Subsidiary" means any corporation of which at least a majority of the
outstanding capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation is owned by the Company or by the
Company and one or more Subsidiaries or by one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date first above written, except to the
extent that any subsequent amendment thereto shall retroactively apply to
this Indenture.
"Trustee" means the party named as such above or any other trustee
appointed with respect to the Securities of any series as contemplated by
Section 2.01, in each case until a successor replaces it with respect to the
Securities of one or more series pursuant to the applicable provisions of this
Indenture, and thereafter with respect to the Securities of such one or more
series shall mean the successor.
"Trust Officer" means the Chairman of the Board, the President or any other
officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means direct obligations of the United States
of America for the payment of which the full faith and credit of the United
States of America is pledged and which are not callable at the issuer's option.
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- -------
"Bankruptcy Law" ................................... 6.01
"Custodian" ........................................ 6.01
"Event of Default" ................................. 6.01
"Legal Holiday" .................................... 10.07
"Paying Agent" ..................................... 2.03
"Registrar" ........................................ 2.03
"Security Register" ................................ 2.03
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and
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made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings assigned to them by such statute or rule, except as provided in
Section 7.10.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING. The Securities of each series shall be in
such form as shall be established by or pursuant to a Board Resolution or in one
or more indentures supplemental hereto, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and in case such form is not established by supplemental
indenture, such form shall be approved by the Trustee if the Trustee's rights or
obligations are adversely affected thereby, and such form may further have such
legends, notations or endorsements as may be required by law, stock exchange
rules or usage.
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Each Security shall be in fully-registered form and shall be dated the date
of its authentication.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution, and set forth in an
Officers' Certificate delivered to the Trustee, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series, the following terms with respect to such series, and thereafter such
terms shall be deemed to be a part of this Indenture (it being understood and
agreed that, in the case of any terms to be established by or pursuant to a
Board Resolution which, if established, would adversely affect the rights and
obligations of the Trustee, such terms shall not be deemed to be a part of
the Indenture unless and until they shall have been approved by the Trustee):
(1) the title of the Securities of such series (which shall
distinguish the Securities of such series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities of such series
authenticated and delivered upon transfer of, or in exchange for, or
in lieu of, other Securities of such series pursuant to Section 2.06,
2.07, 2.10, 3.06 or 9.05);
(3) the date or dates on which the Principal of the Securities of
such series is payable or the manner of determining such date or dates;
(4) the rate or rates at which the Securities of such series
shall bear interest, if any, or the method or methods of calculating
such rate or rates of interest and the date or dates from which such
interest shall accrue;
(5) the Interest Payment Dates on which such interest shall be
payable and the Regular Record Dates for the interest payable on any
Interest Payment Date;
(6) the place or places where the Principal of and interest on
the Securities of such series shall be payable;
(7) the period or periods within which, the price or prices at
which, and the terms and conditions upon which Securities of such
series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of such series pursuant to any sinking fund or analogous
provisions or at
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the option of the Holder thereof and the period or periods within
which, the price or prices at which, and the terms and conditions
upon which Securities shall be redeemed or purchased, in whole or
in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities shall be
issuable;
(10) if Securities of such series constitute Original Issue
Discount Securities, the portion of the principal amount of Securities
which shall be payable upon declaration of acceleration thereof
pursuant to Section 6.02;
(11) any Events of Default with respect to the Securities of such
series in addition to those set forth in Section 6.01;
(12) whether the Securities of such series shall be issued, in
whole or in part, in the form of one or more Global Securities and,
in such case, the Depositary for such Global Security or Securities;
(13) the identity of any trustee, authenticating agent, Paying
Agent or Registrar with respect to the Securities of such series, if
other than the Trustee; and
(14) any other terms with respect to the Securities of such series
(which terms shall not be inconsistent with the provisions of this
Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution and set forth in the Officers' Certificate delivered to the
Trustee or as provided pursuant to an indenture supplemental hereto with respect
to such series. All Securities of any one series need not be issued at the same
time, and unless otherwise provided, a series may be reopened for issuance of
additional Securities of such series.
SECTION 2.02. EXECUTION AND AUTHENTICATION. An Officer shall sign the
Securities for the Company by manual or facsimile signature and the Company's
seal shall be reproduced on the Securities and attested by the manual or
facsimile signature of an authorized Officer of the Company.
If an Officer whose signature is on a Security no longer holds that office
at the time the Security is authenticated, the Security shall be valid
nevertheless.
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A Security shall not be valid until authenticated by the Trustee by manual
signature. The Trustee's certificate of authentication of all Securities shall
be in substantially the following form:
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
_________________________, as Trustee
By:_________________________
Authorized Signatory
The manual signature of the Trustee on a certificate of authentication in
the form hereinabove provided for shall be conclusive evidence that the Security
has been authenticated under this Indenture.
The Trustee shall at any time and from time to time authenticate Securities
for original issue, upon delivery to the Trustee of (i) the Securities executed
by the Company and (ii) a Company Order requesting the authentication thereof.
In authenticating Securities of a particular series, and accepting the
additional responsibilities under this Indenture in relation to such series of
Securities, the Trustee shall be entitled to receive and (subject to Section
7.01) shall be fully protected in relying upon:
(1) certified copies of the Certificate of Incorporation and
bylaws of the Company;
(2) each Board Resolution relating to the Securities of such
series, and if the form or forms of the Securities of such series and
the terms with respect thereto are established by a Board Resolution,
an Officers' Certificate (i) approving the form or forms of the
Securities of such series and the terms with respect thereto, to the
extent such terms have been established (and, if the Securities of
such series are Original Issue Discount Securities, setting forth such
facts as are necessary to compute amounts due upon acceleration, if
such facts are not specified in the form of Security) and (ii) stating
that all conditions precedent to the issuance and authentication of
the Securities of such series have been complied with;
(3) an executed supplemental indenture (if any) relating to such
Securities;
(4) an Opinion of Counsel, which shall state
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(a) that the terms with respect to the Securities of such
series have been established by or pursuant to a Board Resolution
or by a supplemental indenture as permitted by, and in conformity
with, the provisions of this Indenture;
(b) that the Securities of such series, when authenticated
and delivered by the Trustee and issued by the Company in the
manner and subject to any further conditions specified in such
Opinion of Counsel that are reasonably acceptable to the Trustee,
will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms,
except insofar as (i) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought; and
(c) that all conditions precedent to the execution and
delivery by the Company of the Securities have been complied with;
and
(5) such other documents as the Trustee may reasonably require.
If all Securities of a series are not to be originally issued at one time,
it shall not be necessary to deliver the Officers' Certificate or the Opinion of
Counsel otherwise required pursuant to Section 2.01 and this Section 2.02 at or
prior to the time of authentication of each Security of such series if such
documents have been delivered at or prior to the authentication upon original
issuance of the first Security of such series.
Each security shall be dated the date of its authentication.
The Trustee shall not be required to authenticate any Securities if such
action may not lawfully be taken or will affect the Trustee's own rights, duties
or immunities under the Securities and this Indenture in a manner which is not
reasonably acceptable to the Trustee.
The aggregate principal amount of Securities of any series outstanding at
any time may not exceed any limit upon the maximum principal amount for such
series set forth in or pursuant to the Board Resolution or supplemental
indenture relating to such series delivered pursuant to this Section 2.02,
except as authorized pursuant to Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the Company
to authenticate Securities. An authenticating agent may authenticate Securities
whenever the
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Trustee may do so, provided that only the Trustee may authenticate Securities
pursuant to Section 2.07. Each reference in this Indenture to authentication by
the Trustee includes authentication by an authenticating agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate.
SECTION 2.03. REGISTRAR AND PAYING AGENT. The Company shall maintain an
office or agency where Securities may be presented to the registrar
("Registrar") for registration of transfer or for exchange and an office or
agency where Securities may be presented to the paying agent ("Paying Agent")
for payment; 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 register of the Securities provided
for in this Section. The Registrar shall keep a register of the Securities (the
"Security Register") and of their transfer and exchange. The Company may
appoint one or more co-registrars and one or more additional paying agents with
respect to any one or more series. The "Registrar" includes any co-registrar
and the term "Paying Agent" includes any additional paying agent. The Company
shall notify the Trustee of the name and address of any Registrar or Paying
Agent not a party to this Indenture. If the Company fails to maintain a
Registrar or Paying Agent for the Securities, the Trustee shall act as such.
The Company initially appoints the Trustee as Paying Agent and Registrar.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST. The Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will (i) hold in trust for the benefit of Securityholders of any
series or the Trustee all money held by the Paying Agent for the payment of
Principal of or interest on the Securities of such series, (ii) notify the
Trustee of any default by the Company in making any such payment and (iii) pay
to the Trustee all sums so held in trust by such Paying Agent, upon written
request of the Trustee at any time during the continuance of an Event of
Default. If the Company acts as Paying Agent, it shall segregate the money and
hold it as a separate trust fund. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon doing so, the Paying
Agent (if other than the Company) shall have no further liability for the money.
SECTION 2.05. SECURITYHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar and Paying Agent with respect to Securities of any
series, the Company shall furnish to the Trustee on or before each Interest
Payment Date for such Securities (and on dates to be determined in the manner
provided in Section 2.01 for any series of Original Issue Discount Securities
which by their terms bear interest only after Maturity), but in no case less
frequently than semiannually, and at such other times as the Trustee may request
in writing,
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a list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Holders of the Securities of such series.
SECTION 2.06. TRANSFER AND EXCHANGE. Subject to the provisions of Section
2.10, where Securities are presented to the Registrar with a request to register
transfer or to exchange them for an equal principal amount of Securities of the
same series of other denominations, the Registrar shall register the transfer or
make the exchange if its requirements for such transactions are met. The
Registrar shall not be required to register the transfer or exchange of (i)
Securities of any series during a 15-day period beginning at the opening of
business 15 days before the day of mailing of a redemption notice pursuant to
Section 3.03 with respect to Securities of such series or (ii) any Security
selected for redemption in whole or in part, except the unredeemed portion of a
Security redeemed in part. To permit registration of transfer and exchanges,
the Company shall issue and the Trustee shall authenticate Securities at the
Registrar's request. No service charge shall be made to any Securityholder for
any transfer, exchange or replacement of Securities, except that the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge which may be imposed in relation to any such transfer, exchange or
replacement, other than exchanges pursuant to Section 2.10, 3.06 or 9.05.
Notwithstanding the foregoing, Securities of a series may be exchanged only for
Securities of the same series having identical terms.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of Principal of and any 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.
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 Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
SECTION 2.07. REPLACEMENT SECURITIES. If the Holder of a Security claims
that the Security has been lost, mutilated, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security of
the same series having identical terms if the Trustee's requirements are met.
If required by the Trustee or the Company, such Holder shall provide an
indemnity bond sufficient in the judgment of the Trustee to protect the Company,
the Trustee, any Agent or any authenticating agent from any loss which any of
them may suffer if a Security is replaced.
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Every replacement Security is an additional obligation of the Company and
shall be entitled to all benefits of the Indenture equally and proportionately
with all other Securities duly issued hereunder.
SECTION 2.08. OUTSTANDING SECURITIES. The Securities outstanding at any
time are all the Securities authenticated by the Trustee, except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
SECTION 2.09. REQUIRED PRINCIPAL AMOUNT. In determining whether the
Holders of the required principal amount of Securities have concurred in any
direction, waiver or consent, (i) Securities owned by the Company or an
Affiliate shall be disregarded, except that for the purpose of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only Securities which the Trustee has been advised in writing by the
Company or the Holder are so owned shall be so disregarded and (ii) the
principal amount of an Original Issue Discount Security that shall be deemed to
be outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the Stated Maturity thereof determined in
accordance with Section 6.02.
SECTION 2.10. TEMPORARY SECURITIES; GLOBAL SECURITIES. (a) Until
definitive Securities are ready for delivery, the Company may prepare and
execute and, upon receipt of a Company Order, the Trustee shall authenticate
temporary Securities. Temporary Securities of any series shall be substantially
in the form of definitive Securities of such series but may have variations that
the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and, upon surrender of such
temporary Securities, the Company shall execute and the Trustee shall
authenticate definitive Securities of such series in exchange for such temporary
Securities. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
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(b) If the Company shall establish pursuant to Section 2.01 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with Section 2.02 and pursuant to a Company Order, authenticate
and deliver one or more Global Securities in temporary or permanent form that
(i) shall represent and shall be denominated in an amount equal to the aggregate
principal amount of the outstanding Securities of such series to be represented
by one or more Global Securities, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction and (iv) shall bear any customary
legend reasonably required by the Depositary and shall further bear a legend
substantially to the following effect: "This Security is a Global Security
within the meaning of the Indenture hereinafter referred to and is registered in
the name of a Depositary or a nominee thereof. This Security may not be
transferred to, or registered or exchanged for Securities registered in the name
of, any person other than the Depositary or a nominee thereof and no such
transfer may be registered, except in the limited circumstances described in the
Indenture. Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, this Security shall be a Global
Security subject to the foregoing, except in such limited circumstances."
Notwithstanding any other provision of this Section 2.10 or Section 2.06,
unless and until it is exchanged in whole or in part for Securities in
definitive form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
None of the Company, the Trustee, any Paying Agent or the Registrar has any
direct obligation or responsibility to participants of the Depositary or
beneficial owners of interests in Securities. Without limiting the generality
of the foregoing, none of the Company, the Trustee, any Paying Agent or the
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a Global Security (including the maintenance, review and
supervision of any such records), for the delivery of any notice to any owner of
a beneficial interest, for the selection of the beneficial owners to receive
payment in the event of any partial redemption of Securities, or for any consent
given or other action taken by the Depositary as owner of the Securities.
If at any time the Depositary for the Securities of a series notifies the
Company that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for Securities of a
series shall no longer be registered or in good
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standing under the Exchange Act or other applicable statute or regulation,
the Company shall appoint a successor Depositary with respect to the
Securities of such series. If a successor Depositary for the Securities of
such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, the Company will
execute, and the Trustee, upon receipt of a Company Order instructing the
Trustee to authenticate and deliver definitive Securities of such series,
will authenticate and deliver Securities of such series in definitive form in
an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by such Global Security or Securities.
Furthermore, if there shall have occurred and be continuing an Event of Default
or an event which, with the giving of notice or lapse of time, or both, would
constitute an Event of Default with respect to any series of Securities, the
Trustee may determine that the Securities of such series shall no longer be
represented by a Global Security or Securities. In any such event, the Company
will execute, and the Trustee, upon receipt of a Company Order instructing the
Trustee to authenticate and deliver definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
If specified by the Company pursuant to Section 2.01 with respect to
Securities of a series, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange, in whole
or in part, for Securities of such series in definitive form on such terms as
are acceptable to the Company and such Depositary. Thereupon, the Company shall
execute and, upon receipt of a Company Order, the Trustee shall authenticate and
deliver, without charge:
(i) to each person specified by the Depositary, a new Security or
Securities of the same series of any authorized denomination as
requested by such person in an aggregate principal amount equal to and
in exchange for such person's beneficial interest in the Global
Security; and
(ii) to the Depositary, a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities delivered to Holders thereof.
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Upon the exchange of a Global Security for Securities in definitive form,
such Global Security shall be cancelled by the Trustee. Securities issued in
exchange for a Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary for such
Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the persons in whose names such Securities are so
registered.
SECTION 2.11. CANCELLATION. The Company at any time may deliver
Securities of any series to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all
Securities surrendered for registration of transfer, exchange, payment or
cancellation and shall destroy or otherwise dispose of, or retain in accordance
with its standard retention policy, at its discretion, canceled Securities and,
where applicable, deliver a certificate of such destruction or retention to the
Company. The Company may not issue new Securities of any series to replace
Securities of such series that it has paid or delivered to the Trustee for
cancellation.
SECTION 2.12. DEFAULTED INTEREST. If the Company defaults in a payment of
interest on any of the Securities, it shall pay the defaulted interest plus, to
the extent permitted by law, any interest payable on the defaulted interest, to
the persons who are Holders of such Securities on a subsequent special record
date. The Company shall fix the record date and payment date after making
arrangements satisfactory to the Trustee for the deposit of such amounts with
the Trustee for payment and after consultation with the Trustee regarding the
selection of such dates. At least 15 days before the record date, the Company
shall mail to the Holders of such Securities a notice that states the record
date, payment date, and amount of interest to be paid.
ARTICLE 3
REDEMPTION; SINKING FUND
SECTION 3.01. NOTICES TO TRUSTEE. The Company may elect to redeem
Securities of any series in accordance with the provisions of such Securities;
provided, however, that if an Event of Default shall have occurred and be
continuing, the Securities of any series may not be redeemed in whole or in
part, unless (i) the Securities of all series are redeemed in whole or (ii) the
Securities of all series are redeemed in part and the principal amount to be
redeemed is prorated among all Holders so that all Holders of each series
receive in redemption of their outstanding Securities the same principal amount
per $1,000 of Securities (provided, however, that if the Securities of any such
series are Original Issue
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Discount Securities, for purposes of this clause (ii), such pro ration shall
be based upon each $1,000 that would be due and payable on the redemption
date in the event of a declaration of acceleration of the Stated Maturity
thereof pursuant to Section 6.02). The election of the Company to redeem
Securities of any series in accordance with the provisions of such Securities
shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, at least 45
days before the redemption date (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such redemption date and
in the case of any redemption of less than all of the Securities of any
series (or, where redemption provisions of any series of Securities are not
identical as to each Security within the series, in case of any redemption at
the election of the Company of less than all the Securities with identical
redemption provisions) the principal amount of the Securities of such series
to be redeemed and shall deliver to the Trustee such documentation and
records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 3.02.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If less than all of
the Securities of a series (or, where the redemption provisions of any series of
Securities are not identical as to each Security within the series, if less than
all the Securities with identical redemption provisions) are to be redeemed, the
Trustee shall, subject to Section 3.01, select the Securities to be redeemed by
such method as the Trustee shall deem fair and appropriate. The Trustee shall
make the selection not more than 45 days before the redemption date from
outstanding Securities of such series (or, if the redemption provisions of all
of the Securities of such series are not identical, from Securities of such
series with identical redemption provisions) not previously called for
redemption. The Trustee may select for redemption portions of the principal of
Securities of any series that have denominations larger than the minimum
principal denomination for such series. Provisions of this Indenture that apply
to Securities called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more than 60
days before a redemption date, the Trustee shall, in the name of the Company and
at the Company's expense, mail by first-class mail a notice of redemption to
each Holder at the address shown in the Security Register whose Securities are
to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
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(4) if less than all the outstanding Securities of a series (or,
in the case of series of Securities in which the redemption provisions
are not identical as to each Security within the series, less than all
of the Securities of a series with identical redemption provisions)
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed;
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the redemption price;
(6) that interest on Securities called for redemption ceases to
accrue on and after the redemption date; and
(7) that the redemption is pursuant to the terms of a sinking
fund, if such is the case.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of a redemption
is mailed, Securities called for redemption become due and payable on the
redemption date at the redemption price. Upon surrender to the Paying Agent,
such Securities shall be paid and redeemed at the redemption price, together
with interest accrued thereon to the redemption date; provided, however, that
installments of interest becoming due on or prior to the redemption date shall
be payable to the Holders of such Securities, or one or more previous Securities
evidencing all or a portion of the same debt as that evidenced by such
particular Securities, registered as such at the close of business on the
relevant record date according to their terms and the provisions of Section
2.12.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. On or before the redemption
date, the Company shall deposit with the Paying Agent money in immediately
available funds sufficient to pay the aggregate redemption price of and accrued
interest on all Securities to be redeemed on that date.
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate for the Holder a new Security of the same series, having terms
identical to those of the Securities surrendered, equal in principal amount to
the unredeemed portion of the Security surrendered.
SECTION 3.07. SINKING FUND. Each sinking fund payment provided for by the
terms of Securities of any series shall be applied to the redemption of such
Securities as provided for by the terms of such Securities and this Section
3.07.
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In satisfaction of any minimum or optional sinking fund payment required
or permitted to be made pursuant to the terms of Securities of any particular
series (or, where the sinking fund provisions of each Security within such
series are not identical, then pursuant to the terms of the Securities with
identical sinking fund provisions), the Company may (i) deliver to the
Trustee Securities of that series (or, where the sinking fund provisions of
the Securities of such series are not identical, Securities of that series
having identical sinking fund provisions) which have not previously been
called for redemption and which the Company has not previously delivered to
the Trustee for cancellation or (ii) notify the Trustee of its election to
credit against the required sinking fund payment the principal amount of any
Securities of that series (or, if applicable, any Securities of that series
with identical sinking fund provisions) which have been redeemed otherwise
than pursuant to minimum sinking fund payment requirements with respect to
the Securities of such series (or, if applicable, with respect to the
Securities of such series with identical sinking fund provisions); provided,
however, that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at
the redemption price specified in such Securities for redemption through
operation of the sinking fund and the amount of such minimum or optional
sinking fund payment shall be reduced accordingly.
Not less than 45 days prior to each sinking fund payment date (unless a
shorter notice shall be satisfactory to the Trustee) for any particular
series of Securities (or, where the sinking fund provisions of the Securities
within such series are not identical, for the Securities of such series
having identical sinking fund provisions), the Company will give an Officer's
Certificate to the Trustee specifying the amount of the next succeeding
sinking fund payment (including any optional sinking fund payment which is
permitted to be made by the terms of the Securities) for that series pursuant
to the terms of that series (or, if applicable, for such Securities pursuant
to the terms of such Securities), the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by crediting Securities against the required sinking fund payment
pursuant to the preceding paragraph of this Section and will also deliver to
the Trustee any Securities to be so credited. The Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 3.02 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 3.03. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
3.04 and 3.06.
SECTION 3.08. TERMS OF SECURITIES TO GOVERN. Notwithstanding any other
provision of this Article 3, if any provision of any Security of any series
shall conflict with any provision of this Article, the provision of such
Security shall govern.
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ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. The Company shall pay the
Principal of and any interest on the Securities on the dates and in the
manner provided in the Securities. Principal and interest shall be
considered paid on the date due if the Paying Agent holds on that date money
deposited with it by or on behalf of the Company sufficient to pay all
Principal and interest then due.
The Company shall pay interest on overdue principal at the rate borne by
such Securities or otherwise as provided in the Securities; it shall pay
interest on overdue installments of interest at the same rate to the extent
permitted by law.
Each payment by the Company to the Trustee or the Paying Agent shall be
accompanied by a written notice from the Company that specifies the series to
which such payment relates.
SECTION 4.02. SEC REPORTS. The Company shall furnish to the Trustee,
within 15 days after it files them with the SEC, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) that the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company also shall comply with
the other provisions of TIA Section 314(a).
SECTION 4.03. RESTRICTION ON CREATION OF SECURED DEBT. After the date
of original issuance of Securities, the Company will not at any time create,
incur, assume or guarantee, and will not cause or permit a Restricted
Subsidiary to create, incur, assume or guarantee, any Secured Debt (including
the creation of Secured Debt by the securing of existing indebtedness)
without first making effective provision (and the Company covenants that in
such case it will first make or cause to be made effective provision) whereby
the Securities of all series then outstanding (together with any other
indebtedness of the Company or such Restricted Subsidiary then entitled to be
so secured) shall be secured equally and ratably with (or prior to) any and
all other obligations and indebtedness thereby secured, for so long as any
such other obligations and indebtedness shall be so secured; provided,
however, that the foregoing covenants shall not be applicable to Secured Debt
secured solely by one or more of the following Security Interests:
(a) Any Security Interest upon any property which consists solely
of one or more parcels of real property, manufacturing plants,
warehouses or office buildings and of fixtures and equipment located on or
at such parcels, plants,
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warehouses or buildings and which is acquired, constructed, developed
or improved by the Company or a Restricted Subsidiary after the date
of original issuance of Securities, which Security Interest is created
prior to or contemporaneously with, or within 24 months after, (i) in the
case of the acquisition of such property, the completion of such
acquisition and (ii) in the case of the construction, development or
improvement of such property, the later to occur of the completion of such
construction, development or improvement or the commencement of
operation, use or commercial production (exclusive of test and
start-up periods) of the property, which Security Interest secures or
provides for the payment of all or any part of the acquisition cost of
such property or the cost of construction, development or improvement
thereof, as the case may be;
(b) Any Security Interest on property (i) existing at the time of the
acquisition thereof by the Company or a Restricted Subsidiary, which
Security Interest secures obligations assumed by the Company or a
Restricted Subsidiary or (ii) incurred by the Company or a Restricted
Subsidiary to secure payment of all or part of the purchase price thereof
or to secure Secured Debt incurred prior to, at the time of, or within 24
months after the acquisition for the purpose of financing all or part of
the purchase price thereof by the Company or a Restricted Subsidiary;
(c) Any Security Interest existing on the property of a
corporation or firm at the time such corporation or firm is merged
into or consolidated with the Company or a Restricted Subsidiary;
(d) Any conditional sales agreement or other title retention
agreement with respect to any property acquired by the Company or a
Restricted Subsidiary;
(e) Any Security Interest to secure indebtedness of a Restricted
Subsidiary to the Company or to another Restricted Subsidiary;
(f) Any Security Interest on any property to secure indebtedness
incurred in connection with the construction, installation or
financing of pollution control or abatement facilities or other forms of
Industrial revenue bond financing or indebtedness, issued or guaranteed by
the United States of America, any state thereof or any department, agency
or instrumentality of either or similar indebtedness issued to or guaranteed
for the benefit of a foreign government, any state thereof or any
department, agency or instrumentality of either or an international finance
agency or any division or department thereof, including the World Bank, the
International Finance Corp. and the Multilateral Investment Guarantee
Agency;
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(g) Any purchase money Security Interests on personal property;
(h) Any Security Interest on the stock, partnership or other equity
interest of the Company or any Restricted Subsidiary in any Joint Venture
or any subsidiary which owns an equity interest in such Joint Venture to
secure indebtedness, provided the amount of such indebtedness is
contributed and/or advanced solely to such Joint Venture;
(i) Any Security Interest securing Senior Indebtedness (as defined in
the applicable supplemental Indenture and Prospectus Supplement),
including without limitation, the Senior Secured Debt Securities (as
defined in the applicable supplemental Indenture and Prospectus
Supplement);
(j) Any Security Interest incurred to secure the performance of surety
or appeal bonds incurred in the ordinary course of business;
(k) Any Security Interest incidental to the normal conduct of the
business of the Company or any Restricted Subsidiary or the ownership of
its property or the conduct of the ordinary course of its business
(including without limitation, (A) Security Interests incurred by law,
including mechanics', materialmens' and carriers' liens or other like
Security Interests, (B) Certain Security Interests for taxes or assessments
or similar charges, (C) Zoning restrictions, easements, licenses, covenants,
reservations, restrictions on the use of real property and similar other
minor irregularities of title, (D) Security Interests to secure the
performance of statutory obligations, tenders, bids, leases, progress
payments, performance or return-of-money bonds, or other similar bonds or
other obligations of a similar nature incurred in the ordinary course of
business and (E) Security Interests required by any contract or statute
in order to permit the Company or a Restricted Subsidiary of the Company
to perform any contract or subcontract made by it with or pursuant to the
requirements of a governmental entity); and
(l) Any security interest arising out of or in connection with any
extension, renewal, replacement, or refunding (or successive extensions,
renewals, replacments or refundings) in whole or in part of any
Secured Debt secured by any Security Interest referred to in the foregoing
subparagraphs (a) through (k), inclusive.
Notwithstanding subparagraphs (b) and (c) above, the creation, incurrence,
assumption or guarantee of any Secured Debt described therein shall not be
permitted if the Security Interest securing such Secured Debt attaches to or
affects property owned by the Company or a Restricted Subsidiary prior to the
event or transaction referred to in said subparagraphs.
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Notwithstanding anything to the contrary in this Section 4.03, the Company
and any one or more Restricted Subsidiaries may create, incur, assume or
guarantee Secured Debt if immediately thereafter the sum of (i) the aggregate
principal amount of all Secured Debt outstanding as of the date of determination
(excluding Secured Debt permitted to be created, incurred, assumed or guaranteed
pursuant to subparagraphs (a) through (l), inclusive, above) and (ii) all
Attributable Debt in respect of Sale and Leaseback Transactions as of the date
of determination would not exceed 15% of Consolidated Net Tangible Assets.
SECTION 4.04. RESTRICTION ON SALE AND LEASEBACK TRANSACTIONS. After the
date hereof, the Company will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction, unless (a) the
Company or such Restricted Subsidiary would be entitled to incur Secured Debt
pursuant to Section 4.03 (other than by reason of the provisions of
subparagraphs (a) through (f), inclusive, of said Section) in an amount equal
to the Attributable Debt in respect of such Sale and Leaseback Transaction
without equally and ratably securing the Securities as provided in said
Section or (b) each of the following conditions is satisfied: (i) the Company
shall promptly give notice of such sale or transfer to the Trustee; (ii) the
net proceeds of such sale or transfer are at least equal to the fair value
(as determined in good faith by a Board Resolution, a copy of which has been
delivered by the Company to the Trustee) of the property which is the subject
of such sale or transfer; and (iii) the Company or a Restricted Subsidiary
shall apply, within one year after the effective date of such sale or
transfer, or shall have committed within one year after such effective date
to apply, an amount at least equal to the net proceeds of the sale or
transfer of the property which is the subject of such sale or transfer to the
optional redemption of Securities in accordance with the provisions of
Article 3 at the redemption price applicable at the time of such redemption,
or to the repayment of other Funded Debt owing by the Company or any
Restricted Subsidiary which is not subordinate and junior in right of payment
to the Securities, or in part to such redemption and in part to such
repayment; provided, however, that if pursuant to clause (b) above the
Company commits to apply an amount at least equal to the net proceeds of a
sale or transfer to the redemption of the Securities or to the repayment of
other Funded Debt, such commitment shall be made in a written instrument
delivered by the Company to the Trustee and shall require the Company to so
apply said amount within 18 months after the effective date of such sale or
transfer, and it shall constitute a breach of the provisions of this Section
4.04 if the Company shall fail so to apply said amount in satisfaction of
such commitment; and, provided, further, that in lieu of applying an amount
equal to all or part of such net proceeds to such redemption or repayment,
the Company may, within one year after such sale or transfer, deliver to the
Trustee Securities (other than Securities made the basis of a reduction in
any mandatory sinking fund payment under the terms of the Securities of any
series) for cancellation and thereby reduce the amount to be applied to the
redemption of Securities pursuant to clause (b) above by an amount equal to
the aggregate principal amount of Securities so delivered. Securities
redeemed or delivered to the Trustee for cancellation
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pursuant to this Section 4.04 shall not be used as credits against mandatory
sinking fund payments.
SECTION 4.05. CERTIFICATE TO TRUSTEE. The Company covenants and agrees
to furnish to the Trustee, not less often than annually, an Officer's
Certificate certifying as to the Company's compliance with all conditions and
covenants under this Indenture; provided, for purposes of this paragraph,
such compliance shall be determined without regard to any period of grace or
requirement of notice provided under this Indenture.
SECTION 4.06. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency of the Trustee, Registrar and Paying Agent where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange, purchase or redemption, and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. Unless otherwise provided pursuant to Section 2.01,
the office or agency of the Trustee in the Borough of Manhattan, New York,
New York, shall initially be such office or agency for all of the aforesaid
purposes. The Company shall give prompt written notice to the Trustee of the
location, and of any change in the location, of any such office or agency
(other than a change in the location of the office of the Trustee). 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
address of the Trustee set forth in Section 10.11.
SECTION 4.07. FURTHER ASSURANCES. From time to time whenever reasonably
requested by the Trustee, the Company will make, execute and deliver, or
cause to be made, executed or delivered, any and all such further and other
instruments and assurances as may be reasonably necessary or proper to carry
out the intention of or to facilitate the performance of the terms of this
Indenture or to secure the rights and remedies of the Holders of Securities
of any series provided for in this Indenture, including, but not limited to,
furnishing all necessary information to the Trustee in connection with
calculations and tax reporting relating to any Original Issue Discount
Securities that may be issued by the Company hereunder.
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ARTICLE 5
SUCCESSORS
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC. The Company shall not
consolidate or merge into, or sell, assign, transfer or lease all or
substantially all of its assets to, any person unless:
(1) the person is a corporation organized and existing under the laws
of the United States of America or any State thereof or the District
of Columbia;
(2) the person assumes by supplemental indenture all the obligations
of the Company under the Securities and this Indenture;
(3) immediately after the transaction no Default shall exist; and
(4) an Officers' Certificate and Opinion of Counsel have been
delivered to the Trustee to the effect that the conditions set forth
in the preceding clauses (1) through (3) above have been met.
The corporation formed by or resulting from any such consolidation or
merger, or which shall have received all or substantially all of such assets,
shall succeed to and be substituted for the Company with the same effect as
if it had been named herein as a party hereto, and thereafter, except in the
case of a lease of all or substantially all of such assets, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" with respect to
Securities of any series occurs if:
(1) the Company defaults in the payment of interest on any Security
of such series when the same becomes due and payable, which Default
continues for a period of 30 days;
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(2) the Company defaults in the payment of the Principal of any
Security of such series when the same becomes due and payable at
Maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements with
respect to Securities of such series or this Indenture (other than a
covenant included in this Indenture solely for the benefit of any
series of Securities other than such series or a covenant which has
not been breached with respect to such series), which Default
continues for a period of 90 days after notice of such Default is
given to the Company by the Trustee or the Holders of at least 25% in
principal amount of the Securities of such series;
(4) the Company or any Material Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(a) commences a voluntary case;
(b) consents to the entry of an order for relief against it in
an involuntary case;
(c) consents to the appointment of a Custodian for it or for all
or substantially all of its property; or
(d) makes a general assignment for the benefit of its creditors;
(5) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Company or any Material Subsidiary
in an involuntary case;
(b) appoints a Custodian of the Company or any Material
Subsidiary or for all or substantially all of the property of the
Company or such Material Subsidiary; or
(c) orders the liquidation of the Company or any Material
Subsidiary, and the order or decree remains unstayed and in
effect for 90 days; or
(6) there occurs any other Event of Default with respect to the
Securities of such series specified in the terms of such series.
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The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
SECTION 6.02. ACCELERATION. If an Event of Default with respect to the
Securities of any series occurs and is continuing, the Trustee by notice to
the Company, or the Holders of at least 25% in principal amount of the
Securities of that series by notice to the Company and the Trustee, may
declare the principal (or, if the Securities of that series are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) of and accrued interest on all the
Securities of that series to be due and payable immediately. Upon such
declaration, the principal (or specified amount) of and accrued interest on
all the Securities of that series shall be due and payable immediately. The
Holders of a majority in principal amount of the Securities of that series by
notice to the Trustee and the Company may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default with respect to the Securities of that
series have been cured or waived except nonpayment of principal or interest
that has become due solely because of the acceleration.
SECTION 6.03. OTHER REMEDIES. If an Event of Default with respect to
the Securities of any series occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of principal of or interest on
the Securities of that series or to enforce the performance of any provision
of the Securities of that series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or
remedy upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority in
outstanding principal amount of the Securities of any series by notice to the
Trustee may waive an existing Default with respect to that series and its
consequences, except a Default in the payment of the principal of or interest on
any Security of that series.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in aggregate
outstanding principal amount of the Securities of all series affected (voting as
one class) may 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 it with respect to the Securities of such series. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, is unduly prejudicial to the rights of another Securityholder of such
series or any other series, or would involve the Trustee in personal liability.
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SECTION 6.06. LIMITATION ON SUITS. A Holder of Securities of any series
may pursue a remedy with respect to this Indenture or the Securities only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to Securities of that series;
(2) the Holders of a majority in principal amount of the
Securities of that series make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer of indemnity; and
(5) during such period, the Holders of a majority in aggregate
outstanding principal amount of the Securities of that series do not
give the Trustee a direction inconsistent with the request;
provided, however, that it is understood and intended, and is expressly
covenanted by each Holder of every Security of a series with every other Holder
and the Trustee, that no Holders of such series of Securities shall have any
right in any manner whatsoever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of the Holders of any other
series of Securities, or to obtain or seek to obtain priority over or preference
to any other such Holder, or to enforce any right under this Indenture, except
in the manner herein provided and for the equal, ratable and common benefit of
all Holders of Securities.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of and interest on the Security, on or after the
respective due dates expressed in the Security, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 6.01(1) or (2) with respect to Securities occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of principal (or, if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
and interest remaining unpaid with respect to the Securities as to which an
Event of Default has occurred.
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SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Securityholders allowed in
any judicial proceedings relative to the Company, its creditors or its property.
SECTION 6.10. PRIORITIES. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to Holders of Securities in respect of which or for the
benefit of which such money has been collected, for amounts due and
unpaid on such Securities for Principal (or, if such Securities are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal and interest,
respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to such
Securityholders.
SECTION 6.11. 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 or omitted by it as Trustee, a court in its discretion
may require the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a
suit by Holders of more than 10% in principal amount of the Securities of any
series.
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ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions required by the terms of this Indenture to
determine whether or not they conform to the requirements of this
Indenture but need not confirm the correctness of all mathematical
computations or other facts or matters stated therein.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this paragraph does not limit the effect of paragraph (b) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 or any other direction
permitted by this Indenture.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
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(e) The Trustee may refuse to perform any duty or exercise any right or
power, and no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur financial liability, unless it receives
indemnity satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with the Company. Money held in trust by the
Trustee need not be segregated from other funds except to the extent required by
law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee may consult with counsel, and the advice or opinion of
counsel with respect to legal matters relating to this Indenture and the
Securities shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request 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.
(g) For all purposes under this Indenture, the Trustee shall not be deemed
to have notice or knowledge of any Event of Default (other than under Section
6.01(1) and (2)) unless a Trust Officer knows of such Event of Default or unless
written notice of any
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Event of Default (other than under Section 6.01(1) or (2)) is received by the
Trustee at its address specified in Section 10.11 hereof and such notice
references the Securities generally, the Company or this Indenture.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities of any
series and may otherwise deal with the Company or an Affiliate with the same
rights it would have if it were not Trustee. Any Agent may do the same with
like rights. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement in the Securities other than its
authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default in respect of the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to the Holders of the Securities of that series
a notice of the Default within 90 days after it occurs. Except in the case of a
Default in payment of the principal or interest on any Security, or in the
payment of any sinking fund or purchase fund installment, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Securities of that series.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. If required by TIA Section
313(a), within 60 days after the reporting date stated in this Section 7.06, the
Trustee shall mail to Securityholders of each series a brief report dated as of
such reporting date that complies with TIA Section 313(a). The Trustee shall
also comply with TIA Section 313(b). For purposes of this Section 7.06, the
reporting date shall be May 15 of each year. The first reporting date will be
the first May 15 following the issuance of the first series of Securities
hereunder.
A copy of each report at the time of its mailing to Securityholders of each
series shall be filed with the SEC and each stock exchange on which the
Securities of each series are listed. The Company will notify the Trustee of
the listing of Securities of any series on a stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee from time to time reasonable compensation (including compensation for
extraordinary services related to default administration) for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable expenses
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incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss or liability
incurred by it arising out of or in connection with the acceptance or
administration of this Indenture, including the costs and expenses of defending
itself against any claims or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Trustee shall notify
the Company promptly of any claim for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent.
The Company need not reimburse any expense or indemnify against any loss or
liability incurred by the Trustee if the acts or omissions of the Trustee, if
any, relating to such loss or liability, breached any standard of care
applicable to or imposed on the Trustee for such acts or omissions.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section.
The Trustee may resign at any time with respect to the Securities of one or
more series by so notifying the Company. The Holders of a majority in principal
amount of the then-outstanding Securities of any series may remove the Trustee
with respect to such series by so notifying the Trustee and the Company. The
Company may remove the Trustee with respect to the Securities of one or more
series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
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(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, with respect to the Securities of any one or more
series, the Company shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 7.10. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the
then-outstanding Securities of each series may appoint a successor Trustee
with respect to the Securities of their respective series to replace the
successor Trustee for the Securities of such series appointed by the Company.
If a successor Trustee with respect to the Securities of any series does
not take office within 60 days after the retiring Trustee with respect to the
Securities of that series resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the
then-outstanding Securities of that series may petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of that series.
If the Trustee fails to comply with Section 7.10, with respect to the
Securities of one or more series, any Holder of Securities of such series may
petition any court of competent jurisdiction for the removal of the Trustee with
respect to the Securities of that series and the appointment of a successor
Trustee with respect to the Securities of that series.
In the case of the appointment of a successor Trustee with respect to all
Securities, the successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to all Securityholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject
to the lien provided for in Section 7.07. Notwithstanding the replacement of
the Trustee pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the retiring Trustee
with respect to expenses and liabilities incurred by it prior to such
replacement.
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In case of the appointment of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
series shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (i) shall contain such
provisions as shall be necessary or desirable to transfer and confirm to, and to
vest in, each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (ii) if the retiring Trustee
is not retiring with respect to all series of Securities, shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the retiring Trustee, with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring, shall continue to be vested in the retiring Trustee and (iii) shall
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee; and upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and the successor Trustee shall have all the rights,
powers and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates. The
successor Trustee shall mail a notice of its succession to the Holders of all
Securities of that or those series to which the appointment of such successor
Trustee relates. The retiring Trustee shall promptly transfer all property held
by it with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, subject to the lien provided for
in Section 7.07. Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.07 hereof shall continue
for the benefit of the retiring Trustee with respect to expenses and liabilities
incurred by it prior to such replacement. No successor Trustee with respect to
Securities of any series shall accept appointment as provided in this Section
7.08 unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under the provisions of Section 7.10.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
SECTION 7.10. ELIGIBILITY, DISQUALIFICATION. This Indenture shall always
have a Trustee with respect to the Securities of each series which satisfies the
requirements of TIA Section 310(a)(1) and (5). The Trustee shall always have a
combined capital and surplus of at
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least $25,000,000 as set forth in its most recent published annual report of
condition or shall be a wholly-owned subsidiary of a bank, a trust company or
a bank holding company having, together with its subsidiaries, a reported
combined capital and surplus of at least $25,000,000. The Trustee is subject
to TIA Section 310(b); PROVIDED, HOWEVER, that there shall be excluded from
the operation of TIA Section 310(b)(1) any indenture or indentures under
which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee is subject to TIA Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has resigned or been removed shall
be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE AND SECURITIES
SECTION 8.01. SATISFACTION AND DISCHARGE OF INDENTURE. If at any time
(a) the Company shall have paid or caused to be paid the Principal of and
interest on all the Securities of any series outstanding hereunder, as and
when the same shall have become due and payable, or (b) the Company shall
have delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series which
shall have been destroyed, lost or stolen and which shall have been replaced
as provided in Section 2.07 or paid), and if, in any such case, the Company
shall also pay or cause to be paid all other sums payable hereunder by the
Company with respect to Securities of such series, then this Indenture shall
cease to be of further effect with respect to Securities of such series
(except as to (i) rights of registration of transfer and exchange, and the
Company's right of optional redemption, if any, (ii) substitution of
apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii)
the rights, obligations and immunities of the Trustee hereunder, (iv) the
rights of the Securityholders of such series as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any
of them, (v) all other obligations of the Company in Sections 2.03, 2.04,
2.05, 2.06, 2.07, 7.07, 7.08 and 8.06 and (vi) the Company's rights pursuant
to Sections 7.08, 8.05 and 8.06), and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture with
respect to Securities of such series. The Company agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred
and to compensate the Trustee for any services thereafter reasonably and
properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.
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SECTION 8.02. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.
(a) The Company may, at its option by a Board Resolution, at any time,
with respect to Securities of any Series, elect to have either paragraph (b) or
paragraph (c) below be applied to the outstanding Securities of such series upon
compliance with the conditions set forth in paragraph (d).
(b) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (b), the Company shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Securities of such series on the date the conditions set forth below are
satisfied (hereinafter, "legal defeasance"). For this purpose, legal defeasance
means that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the outstanding Securities of such series, which
shall thereafter be deemed to be "outstanding" only for the purposes of Section
8.04 and the other Sections of and matters under this Indenture referred to in
(i) and (ii) below, 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 until
otherwise terminated or discharged hereunder: (i) the rights of Holders of
outstanding Securities of such series to receive solely from the trust fund
described in paragraph (d) below and as more fully set forth in such paragraph,
payments in respect of the Principal of and interest on such Securities when
such payments are due, (ii) the Company's obligations with respect to such
Securities under Sections 2.02, 2.03, 2.05, 2.06, 2.07 and 4.06 and, with
respect to the Trustee, under Sections 7.07 and 7.08, (iii) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (iv) this Section
8.02 and Sections 8.04, 8.05, 8.06 and 8.07. Subject to compliance with this
Section 8.02, the Company may exercise its option under this paragraph (b)
notwithstanding the prior exercise of its option under paragraph (c) below with
respect to such Securities.
(c) Upon the Company's exercise under paragraph (a) of the option
applicable to this paragraph (c), the Company shall be released and
discharged from its obligations under any covenant contained in Sections 4.02
through 4.05 and from the operation of Sections 6.01(5), 6.01(6) and 6.01(7)
(except for obligations mandated by the TIA) with respect to the outstanding
Securities of such series on and after the date the conditions set forth
below are satisfied (hereinafter, "covenant defeasance"), and such Securities
shall thereafter be deemed to be not "outstanding" for the purpose of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants and
provisions, but shall continue to be deemed "outstanding" for all other
purposes hereunder. For this purpose, such covenant defeasance means that,
with respect to the outstanding Securities of such series, 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
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covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any
such covenant to any other provision herein or in any other document and such
omission to comply with any such covenant shall not constitute a Default or
an Event of Default under Section 6.01(3), but, except as specified above,
the remainder of this Indenture and such Securities shall be unaffected
thereby.
(d) The following shall be the conditions to application of either
paragraph (b) or paragraph (c) above to the outstanding Securities of any
series:
(i) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee funds in cash and/or U.S. Government
Obligations sufficient without reinvestment thereof, 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 not later than one day before the due date of any
such payments, and which shall be applied by the Trustee to pay and
discharge when due, Principal of and interest on the Securities of
such series to Stated Maturity or redemption, as the case may be, not
theretofore delivered to the Trustee for cancellation; PROVIDED that
in order to have money available on a payment date to pay Principal or
interest on the Securities of such series, the U.S. Government
Obligations shall be payable as to principal and interest on or before
such payment date in such amounts as will provide the necessary money;
(ii) the Company shall have delivered to the Trustee an Opinion of
Counsel in the United States stating that (which may be based on an
Internal Revenue Service ruling) to the effect that the Holders of the
outstanding Securities of such series will not recognize income, gain
or loss for United States Federal income tax purposes as a result of
such deposit and legal defeasance or covenant defeasance, as the case
may be, and will be subject to United States Federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such deposit and legal defeasance or covenant
defeasance had not occurred; and
(iii) such deposit, legal defeasance or covenant defeasance, as
the case may be, and discharge will not cause the Securities of such
series to be delisted from any securities exchange on which they are
listed.
SECTION 8.03. SATISFACTION AND DISCHARGE OF SECURITIES. Securities of a
series shall be deemed to have been paid in full as between the Company and the
respective Holders (and future Holders) of Securities of such series upon the
satisfaction and discharge
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of the Indenture with respect to Securities of such series pursuant to
Section 8.01 or 8.02(b), except that in the case of such satisfaction and
discharge as a result of compliance with Section 8.02(b), the Securities of
such series shall be deemed to have been paid in full as between the Company
and the respective Holders (and future Holders) of Securities of such series
only if the deposit in trust with the Trustee by the Company of the funds in
cash and/or U.S. Government Obligations as provided in Section 8.02 is not
subsequently deemed a preference under the United States Bankruptcy Code as
then in effect.
SECTION 8.04. APPLICATION BY TRUSTEE OF MONEY OR U.S. GOVERNMENT
OBLIGATIONS. Subject to Section 8.06, all money or U.S. Government Obligations
deposited with the Trustee pursuant to Section 8.02 shall be held in trust and
applied by it to the payment, either directly or through the Paying Agent to the
Holders of the particular Securities of such series for the payment or
redemption of which such money or U.S. Government Obligations shall have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest but money so held in trust need not be segregated from
other funds except to the extent required by law.
SECTION 8.05. REPAYMENT OF MONEY OR U.S. GOVERNMENT OBLIGATIONS BY PAYING
AGENT. All money or U.S. Government Obligations held by the Paying Agent
pursuant to Section 8.05 shall, upon demand of the Company, be paid or delivered
to the Trustee and thereupon the Paying Agent shall be released from all further
liability with respect to such money or U.S. Government Obligations.
SECTION 8.06. RETURN OF MONEY, SECURITIES OR U.S. GOVERNMENT
OBLIGATIONS. The Trustee and the Paying Agent shall promptly pay to the
Company upon request any money, U.S. Government Obligations or Securities
that, 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 required under Section 8.02. Any money
or U.S. Government Obligations deposited with or paid to the Trustee or the
Paying Agent for the payment of the Principal of, or interest on any Security
of any series and not applied but remaining unclaimed for two years after the
date upon which such Principal or interest shall become due and payable,
shall, upon the request of the Company and unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, be repaid or delivered to the Company by the Trustee for such series or
by the Paying Agent, and the Holder of the Security of such series shall,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the Company for
any payment which such Holder may be entitled to collect, and all liability
of the Trustee or the Paying Agent with respect to such money or U.S.
Government Obligations shall thereupon cease.
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SECTION 8.07. REINSTATEMENT. If the Trustee is unable to apply any money
or U.S. Government Obligations in accordance with Section 8.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Securities
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 until such time as the Trustee is permitted to apply all such money
or U.S. Government Obligations in accordance with Section 8.02.
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the Trustee may
amend this Indenture or the Securities without the consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency or to make
such provisions with respect to matters or questions arising under this
Indenture as may be necessary or desirable and not inconsistent with
this Indenture or with any indenture supplemental hereto or any Board
Resolution establishing any series of Securities, provided that such
amendment does not adversely affect the rights of Securityholders;
(2) to comply with Section 5.01;
(3) to add additional covenants;
(4) to establish the form or forms or terms with respect to
Securities of any additional series as permitted by Section 2.01;
(5) to evidence and provide for the acceptance of appointment of
a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 7.08; or
(6) to provide for the issuance of Securities of any series with
interest coupons; and
(7) to provide for the exchange of Global Securities for
Securities issued hereunder in definitive form and to make all
appropriate changes for such purpose.
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SECTION 9.02. WITH CONSENT OF HOLDERS. The Company and the Trustee may
amend this Indenture in a manner affecting the Securities of any series, or may
amend the Securities of such series, with the written consent of the Holders of
at least a majority in principal amount of the then-outstanding Securities of
such series. However, without the consent of each Securityholder affected, an
amendment under this Section may not:
(1) reduce the percentage in principal amount of Securities whose
Holders must consent to an amendment;
(2) reduce the rate of or change the time for payment of interest
on any Security;
(3) reduce the Principal of (or, in the case of Original Issue
Discount Securities, the amount of such Securities that would be due
and payable upon acceleration of the Maturity thereof pursuant to
Section 6.02), change the Stated Maturity of or reduce the amount
payable on redemption of or otherwise alter the requirements with
respect to the mandatory redemption of any Security;
(4) make any Security payable in money other than that stated in
the Security; or
(5) make any change in Section 6.04 or 6.07 or this Section 9.02.
After an amendment under this Section becomes effective, the Company shall
mail to Securityholders a notice briefly describing the amendment.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
this Indenture or the Securities shall be set forth in a supplemental indenture
that complies with the TIA then in effect.
SECTION 9.04. EFFECT OF CONSENTS. A consent to an amendment or waiver
by a Holder of a Security is effective upon delivery to the Trustee and is a
continuing consent by the Holder and every subsequent Holder of a Security or
portion of a Security that evidences the same debt as the consenting Holder's
Security, even if notation of the consent is not made on any Security;
however, any such Holder or subsequent Holder may revoke the consent as to
his Security or portion of a Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. An
amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Securityholder, except to the extent each
Securityholder affected must consent and such Securityholder did not do so.
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SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. The Trustee may
place an appropriate notation about an amendment or waiver on any Security
thereafter authenticated. The Company in exchange for all Securities may issue
and the Trustee shall authenticate new Securities that reflect the amendment or
waiver.
SECTION 9.06. TRUSTEE PROTECTED. The Trustee need not sign any
supplemental indenture that adversely affects its rights. In signing such
amendment the Trustee shall be entitled to receive indemnity reasonably
satisfactory to it and to receive, and (subject to Section 7.01) shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture and
complies with the provisions hereof (including Section 9.03).
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 10.02. NOTICES. Any notice or communication by the Company or the
Trustee to the other shall be in writing and shall be delivered in person or
mailed by first-class mail or overnight air courier guaranteeing next-day
delivery to the other's address stated in Section 10.11; provided, however, that
any such notice shall be deemed duly given when such notice is received by the
Company or the Trustee, as the case may be. The Company or the Trustee by notice
to the other may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication to a Securityholder shall be mailed by first-
class mail or overnight air courier guaranteeing next-day delivery to his
address shown on the Security Register. Failure to mail a notice or
communication to a Securityholder or any defect in a notice shall not affect
the sufficiency thereof with respect to any other Securityholders.
Except as provided above, if a notice or communication is mailed in the
manner and within the time prescribed above, it shall be deemed duly given,
whether or not the addressee receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
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SECTION 10.03. COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else affected
shall be entitled to the protection of TIA Section 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that each person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such person,
such condition or covenant has been complied with.
Any Officers' Certificate may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, unless such Officer knows that the
opinion with respect to the matters upon which his certificate may be based
as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any Opinion of Counsel may be based, insofar as
it relates to factual matters the information with respect to which is in the
possession of the Company, upon the certificate, statement or opinion of or
representations
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by an officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representation with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous.
Any Officers' Certificate, statement or Opinion of Counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of
or representations by an accountant (who may be an employee of the Company),
or firm of accountants, unless such Officer or counsel, as the case may be,
knows that the certificate or opinion or representations with respect to the
accounting matters upon which the certificate, statement or opinion may be
based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous. Any certificate or opinion of any
independent firm of public accountants filed with the Trustee shall contain a
statement that such firm is independent.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS. The Trustee may make
reasonable rules for action by written consent or at a meeting of Holders of
Securities of any series. The fact and date of the execution of a written
consent or other writing by any such person shall be established in
accordance with the procedures specified in such reasonable rules, and the
ownership of Securities of any series shall be established by the Security
Register for such series maintained by the Registrar. The Registrar or
Paying Agent may make reasonable rules and set reasonable requirements for
its functions.
SECTION 10.07. LEGAL HOLIDAYS. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions in any place of payment are not
required to be open. If a payment date with respect to a particular series
of Securities is a Legal Holiday at a place of payment, payment may be made
at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 10.08. NO RECOURSE AGAINST OTHERS. No person shall have any
recourse under or upon any obligation or agreement of the Company under this
Indenture or the Securities of any series or because of any debt evidenced by
the Securities of any series against any stockholder, officer, employee or
director, as such, of the Company. By accepting a Security of any series,
each Holder waives and releases all such liability as a part of the
consideration for the issuance thereof.
SECTION 10.09. INTEREST LIMITATION. If any usury law now or at any time
hereafter in force shall be applicable to this Indenture or the Securities of
any series or any other document or instrument related hereto or thereto, it
is the intention of the Company and the Trustee to conform strictly to any
such usury laws and any subsequent revisions or repeals thereof. In
furtherance thereof, the Company and the Trustee stipulate and agree that
none
-45-
<PAGE>
of the terms and provisions contained in this Indenture or the Securities of
any series or any other document or instrument related hereto or thereto
shall ever be construed to give rise to a contract or obligation to pay
interest in excess of the maximum amount permitted to be contracted for,
taken, reserved, charged, collected or received under any applicable law.
SECTION 10.10. DUPLICATE ORIGINALS. The parties may sign any number of
copies of this Indenture. One signed copy is enough to prove this Indenture.
SECTION 10.11. ADDRESSES.
The Company's address is:
Dresser Industries, Inc.
2001 Ross Avenue
Dallas, TX 75201
Attention: Vice President - Corporate Counsel and Secretary
The Trustee's address is:
Texas Commerce Bank National Association
600 Travis Street
8th Floor
Houston, Texas 77002
Attention: Vice President, Corporate Trust Department
Telephone: (713) 216-4181
For purposes of the requirement of a New York office contained in Section
4.06, the address of the Trustee's agent is:
Texas Commerce Trust Company of New York
55 Water Street, Room 234
Windows 20 and 21
New York, New York 10041
Securities may also be presented or surrendered for payment or for
registration of transfer, exchange, purchase or redemption at:
Texas Commerce Bank National Association
1201 Main Street, 18th Floor
Dallas, Texas 75202
-46-
<PAGE>
SECTION 10.12. RECORD DATE FOR ACTION BY SECURITYHOLDERS. The Company
(or, if a deposit has been made pursuant to Section 8.02 or if an Event of
Default has occurred, the Trustee) may set a record date for purposes of
determining the identity of Holders entitled to vote or consent to any action
by vote or consent authorized or permitted under this Indenture, which record
date shall be no later than ten days nor more than 30 days prior to the first
solicitation of such vote or consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 2.05 hereof prior to
such solicitation. If a record date is fixed, those persons who were Holders
of Securities at such record date (or their duly designated proxies), and
only those persons, shall be entitled to take such action by vote or consent
or to revoke any vote or consent previously given, whether or not such
persons continue to be Holders after such record date.
SECTION 10.13. GOVERNING LAW. This Indenture and the Securities of any
series shall be governed by and construed in accordance with the laws of the
State of Texas (except that, to the fullest extent permitted by law, no
effect shall be given to any conflict of law principles of the State of Texas
that would require the application of the laws of any other jurisdiction) and
the applicable federal laws of the United States.
-47-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused the Indenture to be
duly executed, and the Company has caused its seal to be hereunto affixed and
attested, all as of the day and year first above written.
DRESSER INDUSTRIES, INC.
[Corporate Seal] By
------------------------------
Attest:
- --------------------------
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By
------------------------------
[Corporate Seal]
Attest:
- --------------------------
-48-
<PAGE>
STATE OF TEXAS )
) Section :
COUNTY OF DALLAS )
On the ____ day of ________ in the year ________________________
before me personally came _____________________________ to me known who,
being by me duly sworn, did depose and say that he is _______________ and
_____________________ of DRESSER INDUSTRIES, INC., one of the corporations
described in and which executed the above instrument; that he knows the
corporate 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 signed his name thereto by like
authority.
--------------------------
Notary Public
<PAGE>
STATE OF TEXAS )
) Section :
COUNTY OF HOUSTON )
On the ____ day of ________ in the year ________________________
____________ before me personally came ________________ to me known who,
being by me duly sworn, did depose and say that he is ___________________
__________ of TEXAS COMMERCE BANK NATIONAL ASSOCIATION, a national banking
association and one of the entities described in and which executed the above
instrument, and that he signed his name thereto by authority of the Board of
Directors of said entity.
--------------------------
Notary Public
<PAGE>
July 3, 1997
Dresser Industries, Inc.
2001 Ross Avenue
Dallas, Texas 75201
Re: Registration Statement on Form S-3 for Public Offering
of Common Stock, Preferred Stock and/or Debt Securities
Gentlemen:
Reference is made to the Registration Statement on Form S-3, as amended or
supplemented (the "Registration Statement"), filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
with respect to the contemplated issuance by Dresser Industries, Inc. (the
"Company") from time to time of an indeterminate principal amount of one or
more series of Debt Securities (the "Debt Securities") and an indeterminate
number of shares of Dresser Industries, Inc. Preferred Stock, no par value,
and Common Stock, par value $0.25, (collectively the "Securities") the
total amount of Securities not to exceed an aggregate initial offering price
of up to $750,000,000. The Debt Securities are to be issued pursuant to an
Indenture dated as of July 3, 1997 (as amended or supplemented, the
"Indenture") between the Company and Texas Commerce Bank National
Association, as Trustee. As Corporate Counsel of the Company, I have
examined the Indenture and such corporate records, certificates and other
documents and questions of law as I deem necessary or appropriate to this
opinion. I am familiar with the proceedings taken and proposed to be taken by
the Company in connection with the proposed authorization, issue and sale of
the Securities.
Based on the foregoing, I am of the opinion that, subject to receipt of
payment for the Securities and subject to the terms of the Securities being
otherwise in compliance with the applicable law:
(a) The Company has been duly incorporated and is validly existing in good
standing under the laws of the State of Delaware; and
(b) When the Securities have been duly authorized, executed,
authenticated, if necessary, and delivered in accordance with
the terms of the applicable resolutions of the Board of Directors
of the Company and, to the extent applicable, the articles of
incorporation and bylaws of the Company and the Indenture, and any
legally required consents,
<PAGE>
Dresser Industries, Inc.
July 3, 1997
Page 2
approvals, authorizations, and other orders of the Commission or any
other judicial or regulatory authorities have been obtained, the
Securities will constitute legally issued and binding obligations
of the Company, enforceable against the Company in accordance with
their respective terms, except as enforceability may be limited
by bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, moratorium or other laws relating to or affecting
creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
I hereby consent to the filing of this opinion as Exhibit 5 to said Registration
Statement and to the use of my name under the caption "Legal Matters" in the
Prospectus contained therein.
Very truly yours,
/s/ REBECCA R. MORRIS
--------------------------------
Rebecca R. Morris
Vice President-Corporate Counsel
and Secretary
<PAGE>
Exhibit 12
COMBINED WITH UNCONSOLIDATED SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(millions of dollars except for ratio)
<TABLE>
<CAPTION>
Six Months Year Ended October 31,
Ended ----------------------------------------
4/30/97 1996 1995 1994 1993 1992
------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
Consolidated Pretax Income from Continuing
Operations 210.7 426.8 342.2 619.4 276.7 187.4
Share of Pretax Income of less than 50%
Owned Affiliates:
Ingersoll-Dresser Pump Company (15.2) (22.1) (13.2) (8.8) (17.1) (2.2)
Western Atlas International, Inc. (39.2) (35.2)
Share of Net Earnings of Other 50% and Less
Owned Affiliates (3.9) (6.2) (2.9) (14.6) (19.8) (14.7)
Share of Pretax Income of 50%
Owned Affiliates 2.3 7.3 10.1 7.1 9.1 10.8
Dividends Received from less than 50%
Owned Affiliates 2.5 2.7 7.9 3.1 4.1
Fixed Charges (see below) 44.3 79.1 64.1 61.7 56.5 76.7
----- ----- ----- ----- ----- -----
TOTAL EARNINGS 238.2 487.4 403.0 672.7 269.3 226.9
----- ----- ----- ----- ----- -----
FIXED CHARGES
Interest Expense 34.3 60.5 47.4 49.3 44.5 47.4
Debt Expense and Amortization 0.2 0.5 0.3 0.3 0.3 0.1
Premium on Redemption of Debentures 9.8
Interest Factor of Rental Expense 9.8 18.1 16.4 12.1 11.7 15.9
Share of Fixed Charges of 50% Owned Affiliates
Interest Expense 0.8
Interest Factor of Rental Expense 2.7
----- ----- ----- ----- ----- -----
TOTAL FIXED CHARGES 44.3 79.1 64.1 61.7 56.5 76.7
----- ----- ----- ----- ----- -----
RATIO OF EARNINGS TO FIXED CHARGES 5.38 6.16 6.29 10.90 4.77 2.96
----- ----- ----- ----- ----- -----
----- ----- ----- ----- ----- -----
</TABLE>
Notes:
1. The Company owned 50% of Dresser-Rand Company in most of 1992. Effective
October 1, 1992, the Company increased its ownership to 51%.
Dresser-Rand's pre-tax income is included in Consolidated Pre-Tax Income
from Continuing Operations on the basis of 50% in 1992 and 100% in 1993
and thereafter.
2. The Company owned 49% of Ingersoll-Dresser Pump Company from its inception
as of October 1, 1992.
3. The Company owned approximately 30% of Western Atlas International, Inc. in
1992 and 1993. The Company sold its interest in Western Atlas
International, Inc. in 1994 and had a pretax gain of $275.7 million.
Excluding the gain, the ratio is 6.43 in 1994.
4. Share of fixed charges of 50% owned affiliates relates to Dresser-Rand in
1992 and is not significant in all other periods.
5. The interest factor of rental expense is estimated at one-third of total
rental expense on long-term leases, which management believes to be a
reasonable approximation.
<PAGE>
EXHIBIT 23.2
[PRICE WATERHOUSE LOGO]
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated November 27, 1996, appearing on page 29 of Dresser Industries, Inc.'s
Annual Report on Form 10-K for the year ended October 31, 1996. We also
consent to the reference to us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
- ----------------------------------
PRICE WATERHOUSE LLP
Dallas, Texas
July 3, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE (ANDE) HINDS and
each or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission any and all documents referred to
below relating to the registration of an indeterminate principal amount of
Debt Securities and an indeterminate number of shares of Dresser Industries,
Inc. Preferred Stock and Common Stock, par value $0.25, the total amount of
Debt Securities and Preferred and Common Stock not to exceed an aggregate
initial offering price of up to $750,000,000, which may be offered or sold
from time to time: a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, and any amendments thereto with all exhibits, and
any and all documents required to be filed with respect thereto, granting
unto said attorneys-in-fact and agents, and each or either of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the
Company has hereunto set his hand this 22nd day of June, 1997.
/s/ Samuel B. Casey, Jr.
--------------------------
Samuel B. Casey, Jr.
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE A. HINDS and each
or either of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and re-substitution, for him and in his name, place and
stead, in any and all capacities, to sign, execute and file with the
Securities and Exchange Commission any and all documents referred to below
relating to the registration of an indeterminate principal amount of Debt
Securities and an indeterminate number of shares of Dresser Industries, Inc.
Preferred Stock and Common Stock, par value $0.25, the total amount of Debt
Securities and Preferred and Common Stock not to exceed an aggregate initial
offering price of up to $750,000,000, which may be offered or sold from time
to time: a Registration Statement on Form S-3 under the Securities Act of
1933, as amended, and any amendments thereto with all exhibits, and any and
all documents required to be filed with respect thereto, granting unto said
attorneys-in-fact and agents, and each or either of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the
Company has hereunto set his hand this 25th day of June, 1997.
/s/ Lawrence S. Eagleburger
----------------------------
Lawrence S. Eagleburger
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE (ANDE) HINDS and
each or either of them, her true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for her and in her name,
place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission any and all documents referred to
below relating to the registration of an indeterminate principal amount of
Debt Securities and an indeterminate number of shares of Dresser Industries,
Inc. Preferred Stock and Common Stock, par value $0.25, the total amount of
Debt Securities and Preferred and Common Stock not to exceed an aggregate
initial offering price of up to $750,000,000, which may be offered or sold
from time to time: a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, and any amendments thereto with all exhibits, and
any and all documents required to be filed with respect thereto, granting
unto said attorneys-in-fact and agents, and each or either of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the
Company has hereunto set her and this 26th day of June, 1997.
/s/ Sylvia A. Earle, Ph.D.
----------------------------
Sylvia A. Earle, Ph. D.
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE (ANDE) HINDS and
each or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission any and all documents referred to
below relating to the registration of an indeterminate principal amount of
Debt Securities and an indeterminate number of shares of Dresser Industries,
Inc. Preferred Stock and Common Stock, par value $0.25, the total amount of
Debt Securities and Preferred and Common Stock not to exceed an aggregate
initial offering price of up to $750,000,000, which may be offered or sold
from time to time: a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, and any amendments thereto with all exhibits, and
any and all documents required to be filed with respect thereto, granting
unto said attorneys-in-fact and agents, and each or either of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the
Company has hereunto set his hand this 23rd day of June, 1997.
/s/ Rawles Fulgham
----------------------------
Rawles Fulgham
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE (ANDE) HINDS and
each or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission any and all documents referred to
below relating to the registration of an indeterminate principal amount of
Debt Securities and an indeterminate number of shares of Dresser Industries,
Inc. Preferred Stock and Common Stock, par value $0.25, the total amount of
Debt Securities and Preferred and Common Stock not to exceed an aggregate
initial offering price of up to $750,000,000, which may be offered or sold
from time to time: a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, and any amendments thereto with all exhibits, and
any and all documents required to be filed with respect thereto, granting
unto said attorneys-in-fact and agents, and each or either of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the
Company has hereunto set his hand this 19th day of June, 1997.
/s/ John A. Gavin
----------------------------
John A. Gavin
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE (ANDE) HINDS and
each or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission any and all documents referred to
below relating to the registration of an indeterminate principal amount of
Debt Securities and an indeterminate number of shares of Dresser Industries,
Inc. Preferred Stock and Common Stock, par value $0.25, the total amount of
Debt Securities and Preferred and Common Stock not to exceed an aggregate
initial offering price of up to $750,000,000, which may be offered or sold
from time to time: a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, and any amendments thereto with all exhibits, and
any and all documents required to be filed with respect thereto, granting
unto said attorneys-in-fact and agents, and each or either of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the
Company has hereunto set his hand this 20th day of June, 1997.
/s/ Ray L. Hunt
----------------------------
Ray L. Hunt
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE (ANDE) HINDS and
each or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission any and all documents referred to
below relating to the registration of an indeterminate principal amount of
Debt Securities and an indeterminate number of shares of Dresser Industries,
Inc. Preferred Stock and Common Stock, par value $0.25, the total amount of
Debt Securities and Preferred and Common Stock not to exceed an aggregate
initial offering price of up to $750,000,000, which may be offered or sold
from time to time: a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, and any amendments thereto with all exhibits, and
any and all documents required to be filed with respect thereto, granting
unto said attorneys-in-fact and agents, and each or either of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the
Company has hereunto set his hand this 24th day of June, 1997.
/s/ J. Landis Martin
----------------------------
J. Landis Martin
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE (ANDE) HINDS and
each or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission any and all documents referred to
below relating to the registration of an indeterminate principal amount of
Debt Securities and an indeterminate number of shares of Dresser Industries,
Inc. Preferred Stock and Common Stock, par value $0.25, the total amount of
Debt Securities and Preferred and Common Stock not to exceed an aggregate
initial offering price of up to $750,000,000, which may be offered or sold
from time to time: a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, and any amendments thereto with all exhibits, and
any and all documents required to be filed with respect thereto, granting
unto said attorneys-in-fact and agents, and each or either of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the
Company has hereunto set his hand this 19th day of June, 1997.
/s/ Lionel H. Olmer
----------------------------
Lionel H. Olmer
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE (ANDE) HINDS and
each or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission any and all documents referred to
below relating to the registration of an indeterminate principal amount of
Debt Securities and an indeterminate number of shares of Dresser Industries,
Inc. Preferred Stock and Common Stock, par value $0.25, the total amount of
Debt Securities and Preferred and Common Stock not to exceed an aggregate
initial offering price of up to $750,000,000, which may be offered or sold
from time to time: a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, and any amendments thereto with all exhibits, and
any and all documents required to be filed with respect thereto, granting
unto said attorneys-in-fact and agents, and each or either of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the
Company has hereunto set his hand this 23rd day of June, 1997.
/s/ Jay A. Precourt
----------------------------
Jay A. Precourt
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE (ANDE) HINDS and
each or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission any and all documents referred to
below relating to the registration of an indeterminate principal amount of
Debt Securities and an indeterminate number of shares of Dresser Industries,
Inc. Preferred Stock and Common Stock, par value $0.25, the total amount of
Debt Securities and Preferred and Common Stock not to exceed an aggregate
initial offering price of up to $750,000,000, which may be offered or sold
from time to time: a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, and any amendments thereto with all exhibits, and
any and all documents required to be filed with respect thereto, granting
unto said attorneys-in-fact and agents, and each or either of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the
Company has hereunto set his hand this 23rd day of June, 1997.
/s/ Richard W. Vieser
----------------------------
Richard W. Vieser
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE (ANDE) HINDS and
each or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission any and all documents referred to
below relating to the registration of an indeterminate principal amount of
Debt Securities and an indeterminate number of shares of Dresser Industries,
Inc. Preferred Stock and Common Stock, par value $0.25, the total amount of
Debt Securities and Preferred and Common Stock not to exceed an aggregate
initial offering price of up to $750,000,000, which may be offered or sold
from time to time: a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, and any amendments thereto with all exhibits, and
any and all documents required to be filed with respect thereto, granting
unto said attorneys-in-fact and agents, and each or either of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the Company
has hereunto set his hand this 24th day of June, 1997.
/s/ Donald C. Vaughn
----------------------------
Donald C. Vaughn
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Director and/or
officer of DRESSER INDUSTRIES, INC., a Delaware corporation (the "Company"),
hereby constitutes and appoints REBECCA R. MORRIS and ALICE (ANDE) HINDS and
each or either of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and re-substitution, for him and in his name,
place and stead, in any and all capacities, to sign, execute and file with
the Securities and Exchange Commission any and all documents referred to
below relating to the registration of an indeterminate principal amount of
Debt Securities and an indeterminate number of shares of Dresser Industries,
Inc. Preferred Stock and Common Stock, par value $0.25, the total amount of
Debt Securities and Preferred and Common Stock not to exceed an aggregate
initial offering price of up to $750,000,000, which may be offered or sold
from time to time: a Registration Statement on Form S-3 under the Securities
Act of 1933, as amended, and any amendments thereto with all exhibits, and
any and all documents required to be filed with respect thereto, granting
unto said attorneys-in-fact and agents, and each or either of them, full
power and authority to do and perform each and every act and thing requisite
and necessary to be done, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, and each or either of them, or substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned Director and/or officer of the
Company has hereunto set his hand this 24th day of June, 1997.
/s/ William E. Bradford
----------------------------
William E. Bradford
Chairman of the Board,
Chief Executive Officer and Director
(Principal Executive Officer)
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
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)______
-------------
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
74-0800980
(I.R.S. Employer
Identification No.)
712 MAIN STREET 77002
HOUSTON, TEXAS (Zip Code)
(Address of principal executive offices)
LEE BOOCKER, 712 MAIN STREET, 26TH FLOOR
HOUSTON, TEXAS 77002 (713) 216-2448
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-------------
DRESSER INDUSTRIES, INC.
(Exact name of obligor as specified in its charter)
DELAWARE 75-0813641
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(Address of principal executive offices) (Zip Code)
DEBT SECURITIES
(Title of the indenture securities)
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
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 the Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington,
D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee.
(See Note on Page 5.)
ITEM 3. VOTING SECURITIES OF THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF VOTING
SECURITIES OF THE TRUSTEE:
COL. A COL. B
TITLE OF CLASS AMOUNT OUTSTANDING
-------------- ------------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 4. TRUSTEESHIPS UNDER OTHER INDENTURES.
IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH ANY
OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, FURNISH THE FOLLOWING INFORMATION:
(A) TITLE OF THE SECURITIES OUTSTANDING UNDER EACH SUCH OTHER
INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
(B) A BRIEF STATEMENT OF THE FACTS RELIED UPON AS A BASIS FOR THE
CLAIM THAT NO CONFLICTING INTEREST WITHIN THE MEANING OF SECTION 310(b)(1)
OF THE ACT ARISES AS A RESULT OF THE TRUSTEESHIP UNDER ANY SUCH OTHER
INDENTURE, INCLUDING A STATEMENT AS TO HOW THE INDENTURE SECURITIES WILL
RANK AS COMPARED WITH THE SECURITIES ISSUED UNDER SUCH OTHER INDENTURE.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE>
ITEM 5. INTERLOCKING DIRECTORATES AND SIMILAR RELATIONSHIPS WITH THE OBLIGOR
OR UNDERWRITERS.
IF THE TRUSTEE OR ANY OF THE DIRECTORS OR EXECUTIVE OFFICERS OF THE
TRUSTEE IS A DIRECTOR, OFFICER, PARTNER, EMPLOYEE, APPOINTEE OR REPRESENTATIVE
OF THE OBLIGOR OR OF ANY UNDERWRITER FOR THE OBLIGOR, IDENTIFY EACH SUCH PERSON
HAVING ANY SUCH CONNECTION AND STATE THE NATURE OF EACH SUCH CONNECTION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 6. VOTING SECURITIES OF THE TRUSTEE OWNED BY THE OBLIGOR OR ITS
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY THE OBLIGOR AND EACH DIRECTOR, PARTNER AND
EXECUTIVE OFFICER OF THE OBLIGOR.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ ----------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 7. VOTING SECURITIES OF THE TRUSTEE OWNED BY UNDERWRITERS OR THEIR
OFFICIALS.
FURNISH THE FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF THE
TRUSTEE OWNED BENEFICIALLY BY EACH UNDERWRITER FOR THE OBLIGOR AND EACH
DIRECTOR, PARTNER AND EXECUTIVE OFFICER OF EACH SUCH UNDERWRITER.
COL. A COL. B COL. C COL. D
PERCENTAGE OF
VOTING SECURITIES
REPRESENTED BY
AMOUNT OWNED AMOUNT GIVEN
NAME OF OWNER TITLE OF CLASS BENEFICIALLY IN COL. C
------------- -------------- ------------ ----------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 8. SECURITIES OF THE OBLIGOR OWNED OR HELD BY THE TRUSTEE.
FURNISH THE FOLLOWING INFORMATION AS TO SECURITIES OF THE OBLIGOR
OWNED BENEFICIALLY OR HELD AS COLLATERAL SECURITY FOR OBLIGATIONS IN DEFAULT BY
THE TRUSTEE.
COL. A COL. B COL. C COL. D
WHETHER THE AMOUNT OWNED
SECURITIES BENEFICIALLY OR HELD PERCENT OF CLASS
ARE VOTING AS COLLATERAL SECURITY REPRESENTED BY
OR NONVOTING FOR OBLIGATIONS AMOUNT GIVEN
TITLE OF CLASS SECURITIES IN DEFAULT IN COL. C
-------------- ------------ ---------------------- ----------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE>
ITEM 9. SECURITIES OF UNDERWRITERS OWNED OR HELD BY THE TRUSTEE.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF AN UNDERWRITER FOR THE OBLIGOR, FURNISH
THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH UNDERWRITER
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
------------------ ----------- ---------------------- ----------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 10. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF VOTING SECURITIES OF CERTAIN
AFFILIATES OR SECURITY HOLDERS OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT VOTING SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF
THE TRUSTEE (1) OWNS 10 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR
OR (2) IS AN AFFILIATE, OTHER THAN A SUBSIDIARY, OF THE OBLIGOR, FURNISH THE
FOLLOWING INFORMATION AS TO THE VOTING SECURITIES OF SUCH PERSON:
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
------------------ ----------- ---------------------- ----------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 11. OWNERSHIP OR HOLDINGS BY THE TRUSTEE OF ANY SECURITIES OF A PERSON
OWNING 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR.
IF THE TRUSTEE OWNS BENEFICIALLY OR HOLDS AS COLLATERAL SECURITY FOR
OBLIGATIONS IN DEFAULT ANY SECURITIES OF A PERSON WHO, TO THE KNOWLEDGE OF THE
TRUSTEE, OWNS 50 PERCENT OR MORE OF THE VOTING SECURITIES OF THE OBLIGOR,
FURNISH THE FOLLOWING INFORMATION AS TO EACH CLASS OF SECURITIES OF SUCH PERSON
ANY OF WHICH ARE SO OWNED OR HELD BY THE TRUSTEE.
COL. A COL. B COL. C COL. D
AMOUNT OWNED
BENEFICIALLY OR HELD PERCENT OF CLASS
AS COLLATERAL SECURITY REPRESENTED BY
NAME OF ISSUER AND AMOUNT FOR OBLIGATIONS IN AMOUNT GIVEN
TITLE OF CLASS OUTSTANDING DEFAULT BY TRUSTEE IN COL. C
------------------ ----------- ---------------------- ----------------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
<PAGE>
ITEM 12. INDEBTEDNESS OF THE OBLIGOR TO THE TRUSTEE.
EXCEPT AS NOTED IN THE INSTRUCTIONS, IF THE OBLIGOR IS INDEBTED TO THE
TRUSTEE, FURNISH THE FOLLOWING INFORMATION:
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
------------ ----------- --------
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 13. DEFAULTS BY THE OBLIGOR.
(A) STATE WHETHER THERE IS OR HAS BEEN A DEFAULT WITH RESPECT TO THE
SECURITIES UNDER THIS INDENTURE. EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There is not, nor has there been, a default with respect to the
securities under this indenture. (See Note on Page 5.)
(B) IF THE TRUSTEE IS A TRUSTEE UNDER ANOTHER INDENTURE UNDER WHICH
ANY OTHER SECURITIES, OR CERTIFICATES OF INTEREST OR PARTICIPATION IN ANY OTHER
SECURITIES, OF THE OBLIGOR ARE OUTSTANDING, OR IS TRUSTEE FOR MORE THAN ONE
OUTSTANDING SERIES OF SECURITIES UNDER THE INDENTURE, STATE WHETHER THERE HAS
BEEN A DEFAULT UNDER ANY SUCH INDENTURE OR SERIES, IDENTIFY THE INDENTURE OR
SERIES AFFECTED, AND EXPLAIN THE NATURE OF ANY SUCH DEFAULT.
There has not been a default under any such indenture or series. (See
Note on Page 5.)
ITEM 14. AFFILIATIONS WITH THE UNDERWRITERS.
IF ANY UNDERWRITER IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
Not applicable by virtue of Form T-1 General Instruction B and
response to Item 13.
ITEM 15. FOREIGN TRUSTEE.
IDENTIFY THE ORDER OR RULE PURSUANT TO WHICH THE FOREIGN TRUSTEE IS
AUTHORIZED TO ACT AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED
UNDER THE ACT.
Not applicable.
<PAGE>
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 as now in
effect.
#2 A copy of the certificate 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.
+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.
- -------------
- Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission
as an exhibit to the Form S-3 File No. 33-56195.
# Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission
as an exhibit to the Form S-3 File No. 33-42814.
* Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission
as exhibits to the Form S-11 File No. 33-25132.
// Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission
as an exhibit to the Form S-3 File No. 33-65055.
+ Incorporated by reference to exhibit bearing the same designation
and previously filed with the Securities and Exchange Commission
as an exhibit to the Form S-3 File No. 333-26519.
-------------------------------
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base responsive answers to Items 2 and 13,
the answers to said Items are based on incomplete information. Such Items
may, however, be considered as correct unless amended by an amendment to this
Form T-1.
<PAGE>
SIGNATURE
PURSUANT TO THE REQUIREMENTS OF THE TRUST INDENTURE ACT OF 1939 THE
TRUSTEE, TEXAS COMMERCE BANK NATIONAL ASSOCIATION, 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
HOUSTON AND STATE OF TEXAS, ON THE 25TH DAY OF JUNE, 1997.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION
By: /s/ Leah Foshee
---------------------------
Leah Foshee
Assistant Vice President
