As filed with the Securities and Exchange Commission on March 18,
1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
CBI INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 36-3009343
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
(708) 572-7000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Charles O. Ziemer, Esq.
Senior Vice President and General Counsel
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
(708) 572-7000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
James J. Junewicz, Esq.
Mayer, Brown & Platt
190 South LaSalle St.
Chicago, Illinois 60603
(312) 782-0600
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement, as determined by the Registrant.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. /x/
PAGE
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of each Amount Proposed maximum Proposed maximum Amount of
class of securities to be offering price aggregate offering registration
to be registered registered per unit(1) price fee
<S> <C> <C> <C> <C>
Debt Securities(2) (1) (1) $300,000,000 $103,448.20
Preferred Stock, par value
$1.00 per share(3)
Common Stock, par value
$2.50 per share(4)
(1) Not applicable pursuant to General Instruction II.D. of Form S-3 under the Securities Act of 1933.
(2) If any of the Debt Securities are issued at an original issue discount, the principal amount may be increased such
that the aggregate proceeds will be no greater than $300,000,000. Any offering of Debt Securities denominated in any
foreign currency or foreign currency units will be treated as the equivalent in U.S. dollars based on the foreign
exchange rate applicable to the purchase of such Debt Securities from the Registrant.
(3) Such indeterminate number of shares of Preferred Stock of one or more series as may, from time to time, be issued
at indeterminate prices.
(4) Such indeterminate number of shares of Common Stock as may, from time to time, be issued at indeterminate prices,
including Common Stock issuable upon conversion of Debt Securities or Preferred Stock. Each share of Common Stock
includes a right to purchase a fractional share of Series A Junior Participating Preferred Stock which, prior to the
occurrence of certain events, will not be exercisable or evidenced separately from the Common Stock.
</TABLE>
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The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date
until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
PAGE
<PAGE>
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.
PROSPECTUS
Subject to Completion, dated , 1994
$300,000,000
[LOGO]
CBI INDUSTRIES, INC.
Debt Securities, Preferred Stock and Common Stock
CBI Industries, Inc. (the "Company" or "CBI") may from time to
time offer Debt Securities consisting of debentures, notes and/or
other unsecured evidences of indebtedness in one or more series;
preferred stock, par value $1.00 per share, in one or more series
(the "Preferred Stock"); and shares of its common stock, par
value $2.50 per share (the "Common Stock") (collectively, the
"Securities"), at an aggregate offering price not to exceed
$300,000,000 at prices and on terms to be determined at the time
of sale. The Debt Securities, Preferred Stock and Common Stock
may be offered independently or together in any combination for
sale directly to purchasers or to or through dealers,
underwriters or agents to be designated by the Company.
Certain specific terms of the particular Securities in respect of
which this Prospectus is being delivered are set forth in the
accompanying prospectus supplement (the "Prospectus Supplement"),
including, where applicable, the initial public offering price of
the Securities, the listing on any securities exchange, other
special terms, and (i) in the case of Debt Securities, the
specific designation, aggregate principal amount, original issue
discount, if any, authorized denominations, maturity, premium, if
any, rate (which may be fixed or variable), time and method of
calculating payment of interest, if any, the place or places
where principal of, premium, if any, and interest, if any, on
such Debt Securities will be payable, the currency in which
principal of, premium, if any, and interest, if any, on such Debt
Securities will be payable, any terms of redemption at the option
of the Company or the holder, any sinking fund provisions and any
terms for conversion or exchange into other securities of the
Company and (ii) in the case of Preferred Stock, the specific
title and stated value, any dividend, liquidation, redemption,
voting and other rights and any terms for conversion or exchange
into other securities of the Company. If so specified in the
applicable Prospectus Supplement, Securities may be issued in
whole or in part in the form of one or more temporary or
permanent global securities.
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 Company may sell the Securities to or through underwriters or
dealers, and may also sell Securities directly to other
purchasers or through agents. See "Plan of Distribution." The
Prospectus Supplement sets forth the names of any underwriters,
dealers or agents involved in the sale of the Securities in
respect of which this Prospectus is being delivered and any
applicable fee, commission or discount arrangements with them.
This Prospectus may not be used to consummate sales of Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is __________________, 1994
<PAGE>
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AVAILABLE INFORMATION
CBI Industries, Inc., (the "Company") is subject to the
informational requirements of the Securities Exchange Act of 1934
(the "Exchange Act") and, in accordance therewith, files reports,
proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company may be
inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549; and at its regional offices
located at 500 West Madison Street, Chicago, Illinois 60661 and 7
World Trade Center, Thirteenth Floor, New York, New York 10048.
Such reports, proxy materials and other information concerning
the Company may also be inspected at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
Copies of such materials may be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. This Prospectus does not contain all the
information set forth in the Registration Statement and exhibits
thereto which the Company has filed with the Commission under the
Securities Act of 1933 (the "Securities Act") and to which
reference is hereby made. Statements contained in this
Prospectus as to the contents of any contract or other document
referred to are not necessarily complete, and in each instance
reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in all respects by
such reference. Although the Company may not be required to send
a copy of its latest Annual Report to Shareholders to holders of
Debt Securities, the Company will, upon request, send to any
holder of Securities a copy of its latest Annual Report to
Shareholders, as filed with the Commission, which contains
financial information that has been examined and reported upon,
with an opinion expressed by independent certified public
accountants.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed by the Company with the
Commission (File No. 1-7833) are incorporated in this Prospectus
by reference: (i) Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, together with the reports of independent
public accountants which includes an explanatory paragraph that
describes changes in accounting principles with respect to the
methods of accounting for income taxes and for postretirement
benefits other than pensions, (ii) the description of the Common
Stock as set forth in Item 1 of the Company's Registration
Statement on Form 8-A filed with the Commission on April 20,
1979, and (iii) the description of preferred stock purchase
rights as set forth in Item 1 of the Company's Amendment No. 1 to
Registration Statement on Form 8-A filed with the Commission on
August 8, 1989.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of
this Prospectus and prior to the termination of the offering of
the Securities shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing such
documents. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein, in a
Prospectus Supplement or in any other subsequently filed document
which also is or is deemed to be incorporated by reference
herein, modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this
Prospectus.
2
The Company will provide without charge and upon request to
each person to whom this Prospectus has been delivered 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 herein). Requests for
such copies should be directed to the Secretary, C.C. Toerber,
CBI Industries, Inc., 800 Jorie Boulevard, Oak Brook, Illinois
60521-2268 (telephone (708) 572-7000). References in this
Prospectus to the "Company" or "CBI" include CBI Industries, Inc.
and its consolidated subsidiaries, unless the context otherwise
indicates.
THE COMPANY
The Company operates through three major business segments.
CBI's Contracting Services segment is organized under Chicago
Bridge & Iron Company as a worldwide construction group that
provides, through separate subsidiaries, a broad range of
services including design, engineering, fabrication and
construction of metal plate structures, project management,
general contracting, and other specialty construction and related
services. CBI's Industrial Gases segment, which is organized
under Liquid Carbonic Industries Corporation, produces, processes
and markets, on a worldwide basis, carbon dioxide and a wide
variety of other industrial and specialty gases and chemicals.
CBI's Investments segment includes petroleum and special product
terminal businesses and certain real estate and financial
investments.
The Company is incorporated in Delaware and its principal
executive offices are located at 800 Jorie Boulevard, Oak Brook,
Illinois.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus
Supplement, the net proceeds to the Company from the sale of the
Securities offered hereby will be available for general corporate
purposes and may be used for capital expenditures, working
capital, repayment of short and long term indebtedness, and
future acquisitions. Pending such use, the net proceeds may be
temporarily invested.
SELECTED RATIOS
For the purposes of calculating the ratio of earnings to
fixed charges and the ratio of earnings to fixed charges and
preferred stock dividends, earnings consist of earnings before
income taxes and fixed charges to the extent that such charges
are included in the determination of earnings. Fixed charges
consist of interest, including interest on ESOP debt (whether
expensed or capitalized), and one-third of minimum rental
payments under operating leases (estimated by management to be
the interest factor of such rentals).
<TABLE>
<CAPTION>
Years Ended December 31,
1993 1992 1991 1990 1989
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges (1) 3.68 3.43 3.05 2.18
Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends (2) 3.68 3.43 3.05 2.18
3
(1) Earnings were inadequate to cover fixed charges by
$13,770,000 for the fiscal year ended 1993.
(2) Earnings were inadequate to cover fixed charges and
preferred stock dividends by $13,770,000 for the fiscal year
ended 1993.
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms
and provisions of the Debt Securities to which any Prospectus
Supplement may relate. The particular terms and provisions of
any series of Debt Securities offered by any Prospectus
Supplement, and the extent to which such general terms and
provisions described below may apply thereto, will be described
in the Prospectus Supplement relating to such series of Debt
Securities.
Debt Securities may be issued in one or more series under an
indenture (the "Indenture") dated as of March 1, 1994 between the
Company and Chemical Bank, as trustee (the "Trustee"). The
statements under this heading do not purport to be complete and
are subject to the detailed provisions of the Indenture, a copy
of which is filed as an exhibit to the Registration Statement of
which this Prospectus is a part. Wherever particular provisions
of the Indenture or terms defined therein are referred to, such
provisions or definitions are incorporated by reference as a part
of the statements made and the statements are qualified in their
entirety by such reference. A copy of the Indenture is filed as
an exhibit to this registration statement.
General
The Indenture does not limit the aggregate principal amount
of Debt Securities which may be issued thereunder and provides
that Debt Securities of any series may be issued thereunder up to
an aggregate principal amount which may be authorized by the
Company from time to time. (Section 301) Any securities issued
under the Indenture are referred to herein as the "Debt
Securities." The Indenture does not limit the amount of other
debt, secured or unsecured, which may be issued by the Company or
its subsidiaries, subject to limitations on liens described
below. All Debt Securities will be unsecured and rank pari passu
with all other unsecured and unsubordinated indebtedness of the
Company provided that such other unsecured and unsubordinated
indebtedness may contain covenants, events of default and other
provisions which are different from or which are not contained in
the Debt Securities. However, because the Company is a holding
company which conducts substantially all of its operations
through subsidiaries, the right of the Company, and hence the
right of creditors of the Company (including the Holders of Debt
Securities), to participate in any distribution of the assets of
any subsidiary upon its liquidation or reorganization or
otherwise is necessarily subject to the prior claims of creditors
of the subsidiary, except to the extent that claims of the
Company itself as a creditor of the subsidiary may be recognized.
There are no covenants or provisions contained in the Indenture
that may afford the Holders of Debt Securities protection in the
event of a highly leveraged transaction involving the Company.
Unless otherwise provided in the applicable Prospectus
Supplement, the Company will maintain in New York, New York, one
or more offices or agencies where the Debt Securities may be
presented for payment and for transfer or exchange (which
initially will be the Trustee's offices maintained for that
purpose in New York, New York), provided that interest may at the
option of the Company be paid by check mailed to the person
entitled thereto. (Sections 301 and 1102)
4
The Debt Securities will be issued in fully registered form,
without coupons unless otherwise specified in the applicable
Prospectus Supplement. The Debt Securities will be exchangeable
for other Debt Securities of the same series of a like aggregate
principal amount in authorized denominations and will be
transferable at any time or from time to time at the Corporate
Trust Office of the Trustee or at any other office or agency of
the Company maintained for that purpose. No service charge will
be made for any transfer or exchange of the Debt Securities or
other Securities issued under the Indenture, but the Company may
(unless otherwise provided in such Debt Securities) require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Section
305)
Reference is made to the Prospectus Supplement which
accompanies this Prospectus for the following terms and other
information with respect to any Debt Securities in respect of
which this Prospectus is being delivered: (1) the designation,
aggregate principal amount and authorized denominations of such
Debt Securities; (2) the purchase price of such Debt Securities;
(3) the date or dates on which such Debt Securities will mature
or the method of determining such date or dates; (4) the rate or
rates (which may be fixed or variable) at which such Debt
Securities will bear interest, if any, or the method of
calculating such rate or rates, and the date, dates, or the
method of determining such date or dates, from which such
interest, if any, will accrue; (5) the date or dates on which any
such interest will be payable and the record date or dates
therefor; (6) whether such Debt Securities may be issued in
temporary or permanent global form, and, if so, the initial
Depositary with respect thereto; (7) the terms of any mandatory
or optional redemption (including any sinking fund) and any
remarketing arrangements related thereto; (8) the place or places
where the principal (and premium, if any) and interest will be
payable; (9) whether such Debt Securities will be convertible
into or exchangeable for Common Stock or other securities of the
Company, and the terms and conditions of any such conversions or
exchanges; (10) the applicability of any provisions described
under "Limitations of Liens" or "Limitations on Sale and
Leaseback Transactions"; (11) the applicability of any provision
described under "Defeasance and Covenant Defeasance"; (12) the
securities exchange, if any, on which the Debt Securities will be
listed; (13) the currency, currencies or composite currencies for
which such Debt Securities may be purchased and/or in which
principal and interest and premium, if any, will or may be
payable; and (14) any other specified term of such Debt
Securities.
One or more series of Debt Securities may be sold as
Original Issue Discount Securities at a substantial discount
below their stated principal amount, bearing no interest or
interest at a rate which at the time of issuance is below market
rates. Federal income tax consequences and special
considerations applicable to any such series will be described in
the Prospectus Supplement relating thereto.
The Indenture provides that the Debt Securities of a single
series may be issued at various times, with different maturity
dates and may bear interest at different times. (Section 301)
If the purchase price of any Debt Securities is payable in
one or more foreign currencies or currency units or if any Debt
Securities are denominated in one or more foreign currencies or
currency units or if the principal of, premium, if any, or
interest, if any, on any Debt Securities is payable in one or
more foreign currencies or currency units, the restrictions,
elections, certain Federal income tax considerations, specific
terms and other information with respect to such issue of Debt
Securities and such foreign currency or currency units will be
set forth in the applicable Prospectus Supplement.
5
Certain Definitions
The term "Secured Debt" means indebtedness for money
borrowed and any Funded Debt which is secured by a mortgage,
pledge, lien, security interest or encumbrance on (a) any
Principal Property of the Company or a Restricted Subsidiary or
on (b) any shares of capital stock or indebtedness of any
Restricted Subsidiary. (Section 101)
The term "Funded Debt" means all indebtedness for money
borrowed having a maturity of more than twelve months from the
date of the most recent consolidated balance sheet of the Company
and its Restricted Subsidiaries (excluding indebtedness of
Unrestricted Subsidiaries) or renewable and extendible beyond
twelve months at the option of the borrower and all obligations
in respect of lease rentals which under generally accepted
accounting principles would be shown on a consolidated balance
sheet of the Company as a liability item other than a current
liability; provided, however, that Funded Debt shall not include
any of the foregoing to the extent that such indebtedness or
obligations are not required by generally accepted accounting
principles to be shown on the balance sheet of the Company.
(Section 101)
The term "Voting Stock" means outstanding shares of capital
stock having under ordinary circumstances (not dependent on the
happening of a contingency) voting power for the election of
directors. (Section 101)
The term "Subsidiary" means any corporation a majority of
the Voting Stock of which is owned, directly or indirectly, by
the Company or by one or more of its other subsidiaries or by the
Company or one or more of its other Subsidiaries. (Section 101)
The term "Restricted Subsidiary" means (a) any Subsidiary
other than an Unrestricted Subsidiary and (b) any Subsidiary
which was an Unrestricted Subsidiary but which, subsequent to
March 1,1994, is designated by the Company (by or pursuant to
board resolution) to be a Restricted Subsidiary, provided,
however, that the Company may not designate any such Subsidiary
to be a Restricted Subsidiary if the Company would thereby breach
any covenant or agreement herein contained (on the assumptions
that any outstanding Secured Debt of such Subsidiary was incurred
at the time of such designation and that any Sale and Leaseback
Transaction (as defined) to which such Subsidiary is then a party
was entered into at the time of such designation). (Section 101)
The term "Unrestricted Subsidiary" means (a) any Subsidiary
acquired or organized after March 1, 1994, provided that such
Subsidiary shall not be a successor, directly or indirectly, to
any Restricted Subsidiary; (b) any Subsidiary whose principal
business or assets are located outside the United States of
America, its territories and possessions, Puerto Rico or Canada;
(c) any Subsidiary the principal business of which consists of
financing or assisting in financing of customer construction
projects or the acquisition or disposition of products of
dealers, distributors or other customers; (d) any Subsidiary
engaged in the insurance business or whose principal business is
the ownership, leasing, purchasing, selling or development of
real property; and (e) any Subsidiary substantially all the
assets of which consist of stock or other securities of a
Subsidiary or Subsidiaries referred to above in this sentence,
unless and until any such Subsidiary is designated to be a
Restricted Subsidiary, as referred to above. (Section 101)
The term "Principal Property" means any manufacturing plant
or other facility of the Company or any Restricted Subsidiary,
whether presently owned or hereafter acquired, which, in the
opinion of the
6
board of directors of the Company, is of material importance to
the business conducted by the Company and its Restricted
Subsidiaries as a whole. (Section 101)
The term "Consolidated Net Tangible Assets" means
Consolidated Tangible Assets less Consolidated Current
Liabilities. (Section 101)
The term "Consolidated Tangible Assets" means the aggregate
of all assets of the Company and its Restricted Subsidiaries
(including the value of all existing Sale and Leaseback
Transactions (as defined) and any assets resulting from the
capitalization of other long-term lease obligations in accordance
with generally accepted accounting principles, but excluding the
value of assets or investment in any Unrestricted Subsidiary or
any non-majority owned Subsidiary) appearing on the most recent
available consolidated balance sheet of the Company and its
Restricted Subsidiaries at their net book values, after deducting
related depreciation, amortization and other valuation reserves
and excluding (a) any capital write-ups resulting from
reappraisals of assets or of other investments after March 1,
1994 (other than a write-up of any assets constituting part of
the assets and business of another corporation made in connection
with the acquisition, direct or indirect, of the assets and
business of such other corporation), except as permitted in
accordance with generally accepted accounting principles, (b)
treasury stock, (c) patent and trademark rights, good will,
unamortized discounts and expenses and any other intangible
items, all in accordance with generally accepted accounting
principles. (Section 101)
The term "Consolidated Current Liabilities" means the
aggregate of the current liabilities of the Company and its
Restricted Subsidiaries (excluding liabilities of Unrestricted
Subsidiaries) appearing on the most recent available consolidated
balance sheet of the Company and its Restricted Subsidiaries, all
in accordance with generally accepted accounting principles. In
no event shall Consolidated Current Liabilities include any
obligation of the Company and its Restricted Subsidiaries issued
under a revolving credit or similar agreement if the obligation
issued under such agreement matures by its terms within 12 months
from the date thereof but by the terms of such agreement such
obligation may be renewed or extended or the amount thereof
reborrowed or refunded at the option of the Company or any
Restricted Subsidiary for a term in excess of 12 months from the
date of determination. (Section 101)
Foreign Currency Denominated or Indexed Debt Securities
Debt Securities denominated or payable in foreign currencies
may entail significant risks. These risks include, without
limitation, the possibility of significant fluctuations in
foreign currency exchange rates. These risks may vary depending
upon the currency or currencies involved. These risks will be
more fully described in the applicable Prospectus Supplement.
Limitation on Liens
The Company will not, and will not permit any Restricted
Subsidiary to, create, assume or guarantee any Secured Debt
without making effective provision for securing the Debt
Securities (and any other indebtedness of or guaranteed by the
Company or such Restricted Subsidiary then entitled thereto)
equally and ratably with such Secured Debt.
The above restrictions do not apply to debt secured by (i)
certain purchase money mortgages created to secure payment for
the acquisition or completion of construction and commencement of
7
operation of any property including, but not limited to, any
indebtedness incurred by the Company or a Restricted Subsidiary
prior to, at the time of, or within 365 days after the later of
the acquisition, the completion of construction (including any
improvements on an existing property) or the commencement of
commercial operation of such property, which indebtedness is
incurred for the purpose of financing all or any part of the
purchase price of such property or construction or improvements
on such property, (ii) mortgages, pledges, liens, security
interests or encumbrances (collectively referred to herein as
"liens") on property existing at the time of acquisition thereof,
whether or not assumed by the Company or a Restricted Subsidiary,
(iii) liens on property or shares of capital stock or
indebtedness of any corporation existing at the time such
corporation becomes a Restricted Subsidiary, (iv) liens on
property or shares of capital stock or indebtedness of a
corporation existing at the time such corporation is merged into
or consolidated with the Company or a Restricted Subsidiary or at
the time of a sale, lease, or other disposition of the properties
of a corporation or firm as an entirety or substantially as an
entirety to the Company or a Restricted Subsidiary, provided that
no such lien shall extend to any other Principal Property of the
Company or such Restricted Subsidiary prior to such acquisition
or to other Principal Property thereafter acquired other than
additions to such acquired property or other Principal Property
which, together with such acquired property, is part of a single
construction or development program, (v) liens on property of the
Company or a Restricted Subsidiary in favor of the United States
of America or any state thereof, or in favor of any other
country, or any department, agency, instrumentality or political
subdivision thereof, to secure certain payments pursuant to any
contract or statute (including, without limitation, liens to
secure indebtedness of the pollution control or industrial
revenue type) or to secure indebtedness incurred for the purpose
of financing all or any part of the purchase price for the cost
of constructing or improving the property subject to such liens,
(vi) liens on any property or assets of any Restricted Subsidiary
to secure indebtedness owing by it to the Company or to another
Restricted Subsidiary, or (vii) any extension, renewal or
replacement (or successive extensions, renewals or replacements),
in whole or in part, of any lien referred to in the foregoing
clauses (i) to (vi) inclusive, provided that the principal amount
of Secured Debt secured thereby does not exceed the principal
amount of Secured Debt so secured at the time of such extension,
renewal or replacement, and that such extension, renewal or
replacement shall be limited to the property which secured the
lien so extended, renewed or replaced and additions or
improvements to such property. This covenant also does not apply
to production payments or overriding royalty payments with
respect to the sale or other transfer of crude oil, natural gas
or other hydrocarbons. (Section 1104)
Limitation on Sale and Leaseback Transactions
Sale and Leaseback Transactions (which are defined to
include, among other things, certain leases of more than three
years) by the Company or any Restricted Subsidiary of any
Principal Property, completion of construction of which and
commencement of full operation of which have occurred more than
365 days prior to such sale or transfer, will be prohibited
unless either (a) the Company or such Restricted Subsidiary would
be entitled to incur Secured Debt equal in amount to the amount
realized or to be realized upon such sale or transfer secured by
a lien on the property to be leased without equally and ratably
securing the Debt Securities, or (b) an amount equal to the
"value" (as defined) of the Principal Property so leased is
applied (subject to credits for certain voluntary retirements of
Debt Securities) to the retirement, within 120 days of the
effective date of such arrangement, of indebtedness for borrowed
money incurred or assumed by the Company or a Restricted
Subsidiary which is recorded as Funded Debt as shown on the most
recent consolidated balance sheet of the Company and which in the
case of such indebtedness of the Company, is not subordinate
8
and junior in right of payment to the prior payment of the Debt
Securities. (Sections 101 and 1105)
Exempted Indebtedness
Notwithstanding the limitations on liens and Sale and
Leaseback Transactions described above, the Company and any one
or more Restricted Subsidiaries may, without securing the Debt
Securities, issue, assume or guarantee Secured Debt which would
otherwise be subject to the foregoing restrictions, provided
that, after giving effect thereto, the aggregate amount of such
Secured Debt then outstanding (not including Secured Debt
permitted under the foregoing exceptions) and the aggregate value
of Sale and Leaseback Transactions (other than such transactions
in connection with which indebtedness has been, or will be,
retired in accordance with clause (b) of the preceding paragraph)
at such time does not exceed 10% of Consolidated Net Tangible
Assets. (Section 1104)
Consolidation or Merger
The Company, without the consent of the Holders of any of
the Debt Securities under the Indenture, may consolidate with or
merge into, or transfer or lease its assets substantially as an
entirety to, any Person which is a corporation, partnership or
trust organized and validly existing under the laws of any
domestic jurisdiction, or may permit any such Person to
consolidate with or merge into the Company or convey, transfer or
lease its properties and assets substantially as an entirety to
the Company, provided that any successor Person assumes the
Company's obligations on the Debt Securities and under the
Indenture, that after giving effect to the transaction (treating
any indebtedness which becomes an obligation of the Company or
any Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction) no Event of Default, and no event which, after
notice or lapse of time, would become an Event of Default, shall
have occurred and be continuing, and that certain other
conditions are met. (Sections 901 and 1104)
Events of Default; Notice
Any one of the following events will constitute an Event of
Default under the Indenture with respect to Debt Securities of
any series (unless such event is specifically inapplicable to a
particular series as described in the Prospectus Supplement
relating thereto): (i) default for 30 days in the payment of
interest on any Debt Securities of such series, (ii) default in
the payment of any principal of or premium, if any, on any Debt
Securities of such series, (iii) default in the making or
satisfaction of any sinking fund installment or analogous
obligation, if any is required, on the Debt Securities of such
series, (iv) default, for 90 days after notice to the Company, in
the performance of any other covenant in the Indenture in respect
of the Debt Securities of such series, (v) default resulting in
acceleration of maturity in connection with any other series of
Debt Securities under the Indenture or other indebtedness of the
Company, the aggregate principal amount of which exceeds
$5,000,000, not annulled within 30 days after notice to the
Company from the Trustee or to the Company and to the Trustee
from the Holders of at least 25% in principal amount of Debt
Securities of such series, and (vi) certain events of bankruptcy,
insolvency or reorganization. (Section 601)
9
The Indenture provides that if an Event of Default with
respect to any series of Debt Securities shall happen and be
continuing, the Trustee or the Holders of 25% in principal amount
of Debt Securities of such series may declare the principal of
all Debt Securities of such series to be due and payable.
(Section 602)
The Indenture provides that the Trustee will, within 90 days
after the occurrence of a default in respect of any series of
Debt Securities known to it, give to Holders of Debt Securities
of such series notice of such uncured default (as defined, not
including any grace period) with respect to the Debt Securities
of such series; but, except in the case of a default in the
payment of principal of, premium, if any, or interest on, or any
sinking fund installment or analogous obligation with respect to,
any of the Debt Securities of such series, the Trustee shall be
protected in withholding such notice if it in good faith
determines that the withholding of such notice is in the interest
of such Holders of Debt Securities of such series. (Section 702)
The Indenture contains a provision entitling the Trustee,
subject to the duty of the Trustee during default in respect of
any series of Debt Securities to act with the required standard
of care, to be indemnified by the Holders of Debt Securities of
such series. (Sections 702 and 703) Subject to such right of
indemnification, the Indenture provides that the Holders of a
majority in principal amount of the Debt Securities of any series
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 upon the Trustee with respect to the
Debt Securities of such series. (Section 612)
The Company will be required to furnish to the Trustee
annually a statement as to the fulfillment by the Company of all
of its obligations under the Indenture. (Section 1106)
Modification and Waiver
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than a
majority in aggregate principal amount of the Debt Securities of
each series affected (all such Holders voting as a single class)
(which Holders, in the case of a Global Security, shall be the
Depositary appointed by the Company (herein referred to as the
"Depositary") as the Holder of the Global Security (as defined
below) which represents the Debt Securities), to execute
supplemental indentures adding any provisions to or changing in
any manner or eliminating any of the provisions of the Indenture
or modifying in any manner the rights of the Holders of Debt
Securities of such series, provided that no such supplemental
indenture shall, among other things, (i) change the fixed
maturity of any Debt Securities or reduce the principal amount
thereof, reduce the redemption premium thereon or reduce the rate
or extend the time of payment of interest thereon, without the
consent of the Holder of each Security so affected, or (ii)
reduce the aforesaid percentage of the Debt Securities of any
series, the consent of the Holders of which is required for any
supplemental indenture or for any waiver of default under the
Indenture with respect to the Debt Securities of such series,
without the consent of the Holders of all the Debt Securities of
each series so affected. (Section 1002)
The Holders of a majority in aggregate principal amount of
the Debt Securities of any series may on behalf of all the
Holders of the Debt Securities of such series waive compliance
with certain covenants with respect to the Debt Securities of
such series (Section 1107) or waive any past default with respect
to the Debt Securities of such series except a default (i) in the
payment of the principal of, premium, if any, or interest on any
Debt Securities or in the payment of any sinking fund installment
or
10
analogous obligation, if any is required, or (ii) a default in
respect of a covenant or provision of the Indenture which cannot
be modified or amended without the consent of the Holder of each
Debt Security of such series affected. (Section 613)
Global Securities
The provisions set forth below in this section headed
"Global Securities" will apply to the Debt Securities of any
series if the Prospectus Supplement relating to such series so
indicates.
The Debt Securities of such series will be represented by
one or more global securities (collectively, a "Global Security")
registered in the name of a depositary (the "Depositary") or a
nominee of the Depositary identified in the Prospectus Supplement
relating to such series. Except as set forth below, a Global
Security may be transferred, in whole and not in part, only to
the Depositary or another nominee of the Depositary.
Upon the issuance of a Global Security, the Depositary 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 the Depositary or its nominee ("Participants").
The accounts to be credited will be designated by the
underwriters, dealers or agents. Ownership of beneficial
interests in a Global Security will be limited to Participants or
persons that may hold interests through Participants. Ownership
of interests in such Global Security will be shown on, and the
transfer of those ownership interests will be effected only
through, records maintained by the Depositary (with respect to
Participants' interests) and such Participants (with respect to
the owners of beneficial interests in such Global Security). The
laws of some jurisdictions may require that certain purchasers of
securities take physical delivery of such securities in
definitive form. Such limits and laws may impair the ability to
transfer beneficial interests in a Global Security.
So long as the Depositary, or its nominee, is the registered
holder and owner of such Global Security, the Depositary or such
nominee, as the case may be, will be considered the sole owner
and holder of the related Debt Securities for all purposes of
such Debt Securities and for all purposes under the Indenture.
Except as set forth below or as otherwise provided in the
applicable Prospectus Supplement, owners of beneficial interests
in a Global Security will not be entitled to have the Debt
Securities represented by such Global Security registered in
their names, will not receive or be entitled to receive physical
delivery of Debt Securities in definitive form and will not be
considered to be the owners or holders of any Debt Securities
under the Indenture or such Global Security. (Section 305)
Accordingly, each person owning a beneficial interest in a
Global Security must rely on the procedures of the Depositary
and, if such person is not a Participant, on the procedures of
the Participant through which such person owns its interest, to
exercise any rights of a holder of Debt Securities under the
Indenture or such Global Security. The Company understands that
under existing industry practice, in the event the Company
requests any action of holders of Debt Securities or an owner of
beneficial interest in a Global Security desires to take any
action that the Depositary, as holder of such Global Security is
entitled to take, the Depositary would authorize the Participants
to take such action, and that the Participants would authorize
beneficial owners owning through such Participants to take such
action or would otherwise act upon the instructions of beneficial
owners owning through them.
11
Payment of principal of and premium, if any, and interest,
if any, on Debt Securities represented by a Global Security will
be made to the Depositary or its nominee, as the case may be, as
the registered owner and holder of such Global Security.
The Company expects that the Depositary, upon receipt of any
payment of principal, premium, if any, or interest, if any, in
respect of a Global Security, will credit immediately
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 the Depositary.
The Company expects that payments by Participants to owners of
beneficial interests in a Global Security held through such
Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for
the accounts of customers in bearer form or registered in "street
name" and will be the responsibility of such Participants.
Neither the Company not the Trustee nor any agent of the Company
or the Trustee 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 any
Debt Securities or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests or for
any other aspect of the relationship between the Depositary and
its Participants or the relationship between such Participants
and the owners of beneficial interests in such Global Security
owning through such Participants.
Unless and until it is exchanged in whole or in part for
Debt Securities in definitive form, a Global Security may not be
transferred except as a whole by the Depositary to a nominee of
such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary.
Unless otherwise provided in the applicable Prospectus
Supplement, Debt Securities represented by a Global Security will
be exchangeable for Debt Securities in definitive form of like
tenor as such Global Security in denominations of $1,000 and in
any greater amount that is an integral multiple thereof if (i)
the Depositary notifies the Company that it is unwilling or
unable to continued as Depositary for such Global Security or if
at any time the Depositary ceases to be a clearing agency
registered under the Exchange Act; (ii) the Company in its
discretion at any time determines not to have all of the Debt
securities represented by a Global Security and notifies the
Trustee thereof; or (iii) an Event of Default has occurred and is
continuing with respect to the Debt Securities. (Section 305)
Any Debt Security that is exchangeable pursuant to the preceding
sentence is exchangeable for Debt Securities issuable in
authorized denominations and registered in such names as the
Depositary shall direct. Subject to the foregoing, a Global
Security is not exchangeable, except for a Global Security or
Global Securities of the same aggregate denominations to be
registered in the name of the Depositary or its nominee.
Defeasance
The Indenture provides that, if such provision is made
applicable to the Debt Securities of any series pursuant to the
provisions of the Indenture, the Company may elect (i) to defease
and be discharged from any and all obligations in respect of such
Debt Securities except for certain obligations to register the
transfer or exchange of such Debt Securities, to replace
temporary, destroyed, stolen, lost or mutilated Debt Securities,
to maintain paying agencies and to hold monies for payment in
trust ("Defeasance") or (ii) (A) to omit to comply with certain
restrictive covenants in Sections 1104 and 1105 (the covenants
described above under "Limitation of Liens" and "Limitation on
Sale and Leaseback Transactions") and (B) to deem the occurrence
of any
12
event referred to in clauses (iv) with respect to Sections 1104
and 1105, (v) and (vi) under "Events of Default" above not to be
or result in an Event of Default if, in each case with respect to
the Debt Securities of any series as provided in Section 1302 on
or after the date the conditions set forth in Section 1303 are
satisfied ("Covenant Defeasance"); in either case upon the
deposit with the Trustee (or other qualifying trustee), in trust,
of money and/or U.S. Government Obligations, which through the
payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount
sufficient to pay the principal of and any premium and interest
on the Debt Securities of such series on the respective stated
maturities and any mandatory sinking fund payments or analogous
payments on the days payable, in accordance with the terms of the
Indenture and the Debt Securities of such series. The Prospectus
Supplement relating to a series may further describe the
provisions, if any, permitting such Defeasance or Covenant
Defeasance with respect to the Debt Securities of a particular
series. (Article Thirteen)
In the event the Company omits to comply with certain
covenants of the Indenture with respect to the Debt Securities of
any series as described above, and the Debt Securities of such
series are declared due and payable because of the occurrence of
an Event of Default, the amount of money and U.S. Government
Obligations on deposit with the Trustee will be sufficient to pay
amounts due on the Debt Securities of such series at the time of
their Maturity but may not be sufficient to pay amounts due on
the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default. The Company
shall, however, remain liable for such payments.
Such defeasance could be treated as a redemption of the Debt
Securities of that series prior to maturity in exchange for the
property deposited in trust. In such event, each holder would
generally recognize, at the time of defeasance, gain or loss
measured by the difference between the amount of any cash and the
fair market value of any property deemed received and the
holder's tax basis in the Debt Securities deemed surrendered.
Thereafter, each holder would generally be subject to tax
liability in respect of interest income and would recognize any
gain or loss upon any disposition, including redemption, of the
assets held in trust. Although tax might be owed, the holder of
a defeased Debt Security would not receive cash (except for
current payments of interest on the Debt Securities) until the
maturity or earlier redemption of the Debt Securities. Such tax
treatment could affect the purchase price that a holder would
receive upon the sale of the Debt Securities.
Concerning the Trustee
Chemical Bank is the Trustee under the Indenture. The
Trustee has from time to time made loans to the Company
(including a current participation under the Company's three-year
extendible revolving credit facility) and has performed other
services for the Company in the normal course of its business and
may provide such other services in the future. The Trustee may
resign with respect to any series of the Debt Securities at any
time, in which event the Company will be obligated to appoint a
successor trustee. If the Trustee ceases to be eligible to
continue as Trustee with respect to a series of Debt Securities
or becomes incapable of acting as Trustee or becomes insolvent,
the Company may remove such Trustee, or any Holder of the Debt
Securities of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of such Trustee and the
appointment of a successor trustee with respect to such series.
Any resignation or removal of the Trustee with respect to a
series of Debt Securities and appointment of a successor trustee
for such Trust does not become effective
13
until acceptance of the appointment by the successor trustee.
(Section 710) Pursuant to such resignation and successor trustee
provisions, it is possible that a different trustee could be
appointed to act as a successor trustee with respect to each
series of Debt Securities. All references in this Prospectus to
the Trustee should be read to take into account the possibility
that each series of Debt Securities could have different
successor trustees in the event of such a resignation or removal.
DESCRIPTION OF CAPITAL STOCK
The Company may issue, separately or together with or upon
the conversion of or exchange for other Securities, Common Stock
and Preferred Stock, all as set forth in the accompanying
Prospectus Supplement relating to the Common Stock or Preferred
Stock in respect of which this Prospectus is being delivered.
The following summaries do not purport to be complete and are
subject to, and are qualified in their entirety by reference to,
the following documents: (i) the Company's Certificate of
Incorporation, as amended (the "Certificate"), (ii) the Company's
bylaws, as amended (the "Bylaws"), and (iii) an Amendment and
Restatement dated as of August 8, 1989 of a Rights Agreement
dated as of March 4, 1986 between the Company and First Chicago
Trust Company of New York, as Rights Agent (the "Rights
Agreement"). A copy of each of the Certificate, the Bylaws and
Rights Agreement is filed as an exhibit to the Registration
Statement.
The Company's authorized capital stock consists of
120,000,000 shares of common stock, par value $2.50 per share,
and 20,000,000 shares of preferred stock, par value $1.00 per
share, of which 800,000 shares have been designated as Series A
Junior Participating Preferred Stock (the "Series A Preferred
Stock") and 3,945,000 have been designated as Convertible Voting
Preferred Stock, Series C (the "Series C Preferred Stock").
At the close of business on March 1, 1994, there were
37,786,859 shares of Common Stock outstanding, including
approximately 1,812,186 shares held by LaSalle National Trust,
N.A. in its capacity as trustee (the "ESOP Trustee") of the CBI
Salaried Employee Stock Ownership Plan (1987) (the "ESOP"), but
not including (i) employee options to purchase an aggregate of
1,114,850 shares of Common Stock (of which options to purchase an
aggregate of 894,550 shares of Common Stock were currently
exercisable); (ii) 55,000 shares of Common Stock reserved under
the CBI Restricted Stock Plan 1989; and (iii) 521,833 shares of
Common Stock reserved for the CBI Employee Stock Purchase and
Savings Plan (1992).
Common Stock
All outstanding shares of Common Stock are, and any shares
of Common Stock sold hereunder will be, fully paid and
nonassessable. Each holder of Common Stock is entitled to one
vote per share held of record on all matters submitted to the
stockholders for action. A vote by the holders of a majority of
shares present at a meeting at which a quorum is present is
necessary to take action, except for certain extraordinary
corporate actions which require the vote of two-thirds of all
outstanding shares entitled to vote thereon (or a majority of
such outstanding shares if the extraordinary action is
recommended by the Board of Directors). In addition, pursuant to
a "fair price" provision in the Company's Certificate of
Incorporation, certain business combinations involving the
Company and any holder of more than 10% of the outstanding voting
stock must be approved by the holders of 80% of the outstanding
voting stock, unless approved by a majority of continuing
directors or certain minimum price and procedural requirements
are met. Any
14
action required or permitted to be taken by stockholders may be
taken only at a stockholders' meeting and not by written consent.
There are no cumulative voting rights in the election of
directors to the Company's Board of Directors, which is divided
into three classes, with members of each class serving a three-
year term. Under the Company's By-Laws, written notice of any
stockholder nomination of an individual for election as director
must be received by the Secretary of the Company not less than 60
days prior to the first anniversary of the last meeting of
stockholders called for the election of directors, and such
notice must set forth certain specified information concerning
the nominee.
Subject to the preferences applicable to any series of
Preferred Stock described herein, holders of Common Stock are
entitled to dividends when and as declared by the Board of
Directors from funds legally available therefor and are entitled,
in the event of liquidation, to share ratably in all assets
remaining after the payment of liabilities. The Common Stock is
neither redeemable nor convertible, and the holders thereof have
no pre-emptive or subscription rights to purchase any securities
of the Company.
The Company is the transfer agent for the Common Stock.
Preferred Stock
Under the Certificate of Incorporation, the Board of
Directors is authorized, without further action of the
stockholders, to provide for the issuance, and to fix the number,
of shares of Preferred Stock, in one or more additional series,
with such voting powers and with such designations, preferences,
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof as shall be
set forth in resolutions providing for the issue thereof adopted
by the Board of Directors or a duly authorized committee thereof.
Reference is made to the Prospectus Supplement which
accompanies this Prospectus for the following terms and other
information with respect to any series of Preferred Stock in
respect of which this Prospectus is being delivered: (1) the
specific title and stated value and the number of shares offered;
(2) the price at which such offered shares shall be issued; (3)
dividend rate (or method of calculation thereof); (4) dates on
which dividends shall be payable; (5) whether such dividends
shall be cumulative and if cumulative, the date from which
dividends shall commence to cumulate; (6) liquidation
preferences; (7) the terms of any mandatory or optional
redemption (including any sinking fund) provisions and the terms
and conditions of any such redemption; (8) whether such Preferred
Stock will be convertible into or exchangeable for Common Stock
or other securities of the Company, and the terms and conditions
of any such conversions or exchanges; (9) voting rights; (10) the
securities exchange, if any, on which the Preferred Stock will be
listed; and (11) any other preferences, privileges, limitations
and restrictions with respect to such series of Preferred Stock.
No holder of Preferred Stock, solely by virtue of such
holdings, has or will have any pre-emptive right to subscribe for
or purchase any shares of any class or series of stock which is
now or may hereafter be authorized or issued. All of the
outstanding shares of Preferred Stock of the Company are, and
shares sold hereby will be, fully paid and non-assessable.
15
Unless otherwise specified in the applicable Prospectus
Supplement, upon any liquidation, dissolution or winding up of
the Company whether voluntary or involuntary, the holders of any
series of Preferred Stock in respect of which this Prospectus is
being delivered will have preference and priority over the Common
Stock and any other class or series of stock of the Company
ranking on liquidation junior to such series of Preferred Stock,
for payment out of the assets of the Company or proceeds thereof,
whether from capital or surplus, in the amount set forth in the
applicable Prospectus Supplement. After such payment, the
holders of such series of Preferred Stock will be entitled to no
other payments unless otherwise provided in the applicable
Prospectus Supplement. If, in the case of any such liquidation,
dissolution or winding up of the Company, the assets of the
Company or proceeds thereof shall be insufficient to make the
full liquidation payment in respect of such series of Preferred
Stock and liquidating payments on any other series of Preferred
Stock ranking as to liquidation on a parity with such series,
then those assets and proceeds will be distributed among the
holders of such series of Preferred Stock and any such other
series of Preferred Stock ratably in accordance with the
respective amounts which would be payable on such shares of such
series of Preferred Stock and such other series of Preferred
Stock if all amounts thereon were paid in full. A sale of all or
substantially all of the Company's assets or a consolidation or
merger of the Company with one or more corporations shall not be
deemed to be a liquidation, dissolution or winding up of the
Company unless otherwise provided in the applicable Prospectus
Supplement.
The Preferred Stock may be issued in the form of global
Preferred Stock Certificates, registered in the name of a
depositary or its nominee. If global Preferred Stock
Certificates are issued, holders will not be entitled to receive
definitive certificates representing shares of Preferred Stock.
In such instance, a holder's ownership of Preferred Stock will be
recorded on or through the records of the brokerage firm or other
entity that maintains such holder's account. In turn, the total
number of shares of Preferred Stock held by an individual
brokerage firm for its clients will be maintained on the records
of the depositary in the name of such brokerage firm or its
agent. Transfer of ownership of any shares of Preferred Stock
represented by a global Preferred Stock Certificate will be
effected only through the selling holder's brokerage firm.
Unless otherwise specified in the applicable Prospectus
Supplement, the series of Preferred Stock in respect of which
this Prospectus is being delivered will rank as to dividends and
upon liquidation on a parity with the Series C Preferred Stock
and senior to the Series A Junior Participating Preferred Stock.
Series A Preferred Stock Purchase Rights and Series A Preferred
Stock
On March 4, 1986, the Board of Directors of the Company
declared a dividend distribution of one preferred stock purchase
right ("Right"), for each share of Common Stock outstanding on
March 18, 1986 and for each share of Common Stock issued
thereafter until the Distribution Date (as defined below) and, in
certain circumstances, for shares issued after such date. Each
Right entitles the registered holder to purchase from the Company
one one-hundredth (1/100) of a share of Series A Preferred Stock
at a Purchase Price of $50.00 (the "Purchase Price"). The terms
and conditions of the rights are contained in an Amendment and
Restatement dated as of August 8, 1989 of a Rights Agreement
dated as of March 4, 1986 between the Company and First Chicago
Trust Company of New York, as Rights Agent (the "Rights
Agreement").
16
As discussed below, until the occurrence of certain events,
initially the Rights will not be exercisable, certificates for
the Rights will not be issued, and the Rights will automatically
trade with the Common Stock.
Until the close of business on the Distribution Date, which
will occur on the earlier of (i) the tenth day following the date
of a public announcement that a person or group of affiliated or
associated persons ("Acquiring Person") has acquired, or obtained
the right to acquire, beneficial ownership of 20% or more of the
outstanding Common Stock (the "Stock Acquisition Date") or (ii)
the tenth business day (or such later date as may be determined
by the Board of Directors prior to any person becoming an
Acquiring Person) after the commencement of a tender or exchange
offer by a Person (as defined in the Rights Agreement) which
could result in the ownership by such Person of 20% or more of
the outstanding Common Stock, the Rights will be represented by
and transferred only with the Common Stock. Until the
Distribution Date, new certificates issued for Common Stock will
contain a legend incorporating the Rights Agreement by reference,
and the surrender for transfer of any of the Common Stock
certificates will also constitute the transfer of the Rights
associated with the Common Stock represented by those
certificates. As soon as practicable following the Distribution
Date, separate Rights Certificates will be mailed to holders of
record of Common Stock at the close of business on the
Distribution Date, and thereafter the Rights Certificates alone
will evidence the Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire at the close of business on March 18,
1996, unless redeemed or exchanged earlier as described below.
Currently, there are no shares of Series A Preferred Stock
issued or outstanding. The Series A Preferred Stock will be
nonredeemable and, unless otherwise provided in connection with
the creation of a subsequent series of Preferred Stock,
subordinate to all other series of the Preferred Stock. Each
share of Series A Preferred Stock will be entitled to receive,
when, as and if declared, a quarterly dividend in an amount equal
to the greater of $10.00 per share or 100 times the quarterly
cash dividend declared on the Common Stock. In addition, the
Series A Preferred Stock is entitled to 100 times any non-cash
dividends (other than dividends payable in Common Stock) declared
on the Common Stock, in like kind. In the event of liquidation,
the holders of Series A Preferred Stock will be entitled to
receive a liquidation payment in an amount equal to the greater
of $50.00 per share or 100 times the liquidation payment made per
share of Common Stock. Each share of Series A Preferred Stock
will have 100 votes, voting together with the Common Stock and
not as a separate class (except during a dividend default period
(occurring when dividends equal to six quarterly dividends are in
arrears), during which there will be a right to elect two
directors voting as a class), unless otherwise required by law or
by the Company's Certificate of Incorporation. In the event of
any merger, consolidation or other transaction in which shares of
Common Stock are exchanged or changed, each share of Series A
Preferred Stock will be entitled to receive 100 times the amount
received per share of Common Stock. The rights of the Series A
Preferred Stock as to dividends, voting rights and liquidation
are protected by antidilution provisions.
If (i) any Person becomes an Acquiring Person other than
pursuant to a tender or exchange offer for all outstanding shares
of Common Stock that the Board of Directors, taking into account
the long-term value of the Company and all other factors that the
Board considers relevant, determines to be at a price and on
terms that are fair to the holders of Common Stock (a "Permitted
Tender Offer"), or (ii) during such time as there is an Acquiring
Person,
17
there shall be a reclassification of securities,
recapitalization, reorganization or other transaction involving
the Company which increases the proportionate equity share of the
Acquiring Person, then in either such event each holder of a
Right, other than the Acquiring Person, upon exercise of the
Right and payment of the Purchase Price, will have the right to
receive, in lieu of Series A Preferred Stock, a number of shares
of Common Stock ("Adjustment Shares") having a value, based upon
the market price during the period immediately preceding such
event, equal to twice the Purchase Price. To the extent that
insufficient shares of Common Stock are available for the
exercise in full of the Rights, holders of Rights will receive
upon exercise shares of Common Stock to the extent available and
then cash, property or other securities of the Company (which may
be accompanied by a reduction in the Purchase Price), in
proportions determined by the Company, so that the aggregate
value received is equal to the value of the Adjustment Shares.
The Board of Directors may, at its option up to the time an
Acquiring Person beneficially owns 50% or more of the outstanding
Common Stock, exchange all or part of the then outstanding and
exercisable Rights for Common Stock, at an exchange rate of one
share of Common Stock per Right, subject to adjustment. Rights
are not exercisable following the acquisition of shares of Common
Stock by an Acquiring Person as referred to in clause (i) of this
paragraph until the expiration of the period during which the
Rights may be redeemed as described below. Notwithstanding the
foregoing, after an event described in clause (i) or (ii) of this
paragraph, Rights that are (or, under certain circumstances,
Rights that were) beneficially owned by the Acquiring Person will
be null and void.
If, after any Person becomes an Acquiring Person, unless the
Rights are redeemed earlier, (i) the Company is a party to a
merger or other business combination in which any shares of the
Common Stock are changed into or exchanged for other securities
or assets or (ii) more than 50% of the assets or earning power of
the Company and its subsidiaries (taken as a whole) are sold or
transferred in one or more transactions, proper provision shall
be made so that each holder of record of a Right will from and
after that time have the right to receive, upon exercise of the
Right and payment of the Purchase Price, that number of shares of
common stock of the principal third party to the transaction
which is equal to the Purchase Price divided by one-half of the
average market price of a share of such party's common stock
during the period immediately preceding such transaction.
At any time until twenty days following the Stock
Acquisition Date, the Board of Directors may cause the Company to
redeem the Rights in whole, but not in part, at a price of $.05
per Right, subject to adjustment ("the Redemption Price"). Upon
the action of the Board of Directors authorizing redemption of
the Rights, the right to exercise the Rights will terminate, and
the holders of Rights will only be entitled to receive the
Redemption Price.
The terms of the Rights may be amended by the Board of
Directors, but (following the Distribution Date) no amendment may
adversely affect the interests of the holders of Rights. Until a
Right is exercised, the holder, as such, will have no rights as a
stockholder of the Company, including without limitation, the
right to vote or to receive dividends.
Series C Preferred Stock
All outstanding shares of the Series C Preferred Stock are
held by the ESOP Trustee. The Series C Preferred Stock has a
liquidation preference over the Common Stock and the Series A
Preferred Stock of $32.40 per share (plus accrued and unpaid
dividends), pays cumulative dividends semi-annually in the amount
of $2.27 per share per annum and is convertible, either at the
18
option of the holder or automatically in the event such Series C
Preferred Stock is no longer held by the ESOP Trustee, into one
and one-half shares of Common Stock per share of Series C
Preferred Stock, subject to antidilution adjustment under certain
circumstances. Holders of the Series C Preferred Stock are
entitled to vote on all matters upon which holders of the Common
Stock are entitled to vote, based on the number of shares of
Common Stock into which the Series C Preferred Stock could be
converted on the record date. Participants in the ESOP
confidentially direct the ESOP Trustee as to how any Stock
allocated to their accounts shall be voted. The ESOP Trustee
exercises its discretion to vote shares, both allocated and
unallocated, for which no directions are received. In the event
of a tender offer for any Common Stock or Series C Preferred
Stock ("Stock") held by the ESOP, each participant is to instruct
the ESOP Trustee regarding Stock allocated to his account. Stock
which has not been allocated will be dealt with by the ESOP
Trustee in proportion to the directions received (or not
received) for the allocated Stock. In the event of a business
combination, as defined, the ESOP terminates and the ESOP assets
are used first to repay a loan obligation of the ESOP and then
allocated pro rata among the participants.
If at any time dividends payable on any of the Preferred
Stock entitled to receive cumulative preferred dividends are in
arrears and unpaid in an amount equal to the amount of dividends
payable thereon for six quarterly dividend periods, the number of
members of the Board of Directors shall increase by two and the
holders of the Preferred Stock, voting separately as a class,
shall have the exclusive right to elect such two directors. In
addition, the vote of a majority of the outstanding shares of
Series C Preferred Stock, voting separately as a series, is
required before certain rights of the Series C Preferred Stock
may be adversely affected. The Series C Preferred Stock may be
redeemed by the Company, in whole or in part, at the Company's
option, commencing May 1, 1990, at a price equal initially to
105% of the purchase price, or $34.02 per share, declining by 1%
each year until May 1, 1995, at and after which date the
redemption price will be equal to the purchase price of $32.40
per share, plus in each case, an amount equal to all dividends
accrued and unpaid on such share to the date fixed for
redemption.
Delaware Law and Certain Charter and Bylaw Provisions
The Company is subject to the provisions of Section 203 of
the General Corporation Law of the State of Delaware. In
general, the statute prohibits a publicly-held Delaware
corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the
date that the person became an interested stockholder unless
(with certain exceptions) the business combination or the
transaction in which the person became an interested stockholder
is approved in a prescribed manner. Generally, a "business
combination" includes a merger, asset or stock sale or other
transaction resulting in a financial benefit to an interested
stockholder. Generally, an "interested stockholder" is a person
who, together with affiliates and associates, owns (or within
three years prior, did own) 15% or more of the corporation's
voting stock.
The Certificate of Incorporation, as amended, and the
Bylaws, as amended, also include provisions which could be
utilized to make more difficult, and possibly discourage,
attempts to acquire control of the company. These provisions
include, without limitations, a "classified board" (election of
approximately one-third of the directors at each annual meeting),
the authorized but unissued shares of Preferred Stock, "fair
price" provisions relating to certain proposed business
combinations between the Company and an "Interested Stockholder"
(i.e., the beneficial owner of 10% or more of the company voting
stock). Any action required
19
or permitted to be taken by stockholders may be taken only at a
stockholders' meeting and not by written consent. Written notice
of any stockholder nomination of an individual for election as
director must be received by the Secretary of the Company not
less than 60 days prior to the first anniversary of the last
meeting of stockholders called for the election of directors, and
such notice must set forth certain specified information
concerning the nominee.
PLAN OF DISTRIBUTION
General
The Company may sell the Securities (i) through underwriters
or dealers; (ii) directly to one or more other purchasers; (iii)
through agents; (iv) to both investors and/or dealers through a
specific bidding or auction process or otherwise; or (v) through
a combination of such methods of sale. The Prospectus Supplement
with respect to the Securities will set forth the terms of the
offering of such Securities, including the name or names of any
underwriters, dealers or agents, the purchase price of such
Securities and the proceeds to the Company from such sale, any
underwriting discounts and other items constituting underwriters'
compensation, any initial public offering price and any
discounts, commissions or concessions allowed or reallowed or
paid to dealers, and any bidding or auction process. Any initial
offering price and any discounts, concessions or commissions
allowed or reallowed or paid to dealers may be changed from time
to time.
If underwriters are used in an offering, the Securities will
be acquired by the underwriters for their own account. The
Securities may be offered to the public either through
underwriting syndicates represented by one or more managing
underwriters or directly by one or more of such firms. The
specific managing underwriter or underwriters, if any, will be
set forth in the Prospectus Supplement relating to the Securities
together with the members of the underwriting syndicate, if any.
Unless otherwise set forth 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 such Securities if any are
purchased.
The Securities may be sold directly by the Company or
through agents designated by the Company from time to time. The
Prospectus Supplement will set forth the name of any agent
involved in the offer or sale of the Securities in respect of
which the Prospectus Supplement is delivered and any commissions
payable by the Company to such agent. Unless otherwise indicated
in the Prospectus Supplement, any such agent is acting on a best
efforts basis for the period of its appointment.
The Securities may be sold from time to time in one or more
transactions, at a fixed price, at varying prices determined at
the time of sale, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at
negotiated prices. The Company may also offer and sell the
Securities in exchange for one or more of its outstanding issues
of debt securities or preferred stock.
Any underwriters, dealers, or agents participating in the
distribution of the Securities may be deemed to be underwriters
and any discounts or commissions received by them on the sale or
resale of the Securities may be deemed to be underwriting
discounts and commissions under the Securities Act of 1933, as
amended (the "Securities Act"). Underwriters, dealers or agents
may be entitled, under agreements entered into with the Company,
to
20
indemnification by the Company, against certain liabilities,
including liabilities under the Securities Act, and to
contribution with respect to payments which the underwriters,
dealers or agents may be required to make in respect thereof.
Underwriters, dealers and agents may engage in transactions with
or perform services for the Company in the ordinary course of
business.
The Securities, other than the Common Stock, will be a new
issue or issues of securities with no established trading market.
The Common Stock is listed, and the Company may apply for the
listing of any Preferred Stock, on the New York Stock Exchange.
No assurance can be given that the underwriters, dealers or
agents, if any, involved in the sale of the Securities will make
a market in such Securities. Whether or not any of the
Securities are listed on a national securities exchange or the
underwriters, dealers or agents, if any, involved in the sale of
the Securities make a market in such Securities, no assurance can
be given as to the liquidity of the trading market for such
Securities.
If so indicated in the Prospectus Supplement, the Company
will authorize underwriters or other persons acting as the
Company's agents to solicit offers by certain institutions to
purchase Securities from the Company pursuant to contracts
providing for payment and delivery on a future date.
Institutions with which such contracts may be made include
commercial and savings banks, insurance companies, pension funds,
investment companies, educational and charitable institutions and
others, but in all cases will be subject to the approval of the
Company. The obligations of any purchaser under any such
contract will be subject to the condition that the purchase of
the Securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is
subject. The underwriters and such agents will not have any
responsibility in respect of the validity or performance of such
contracts.
Offers to purchase Securities may be solicited directly by
the Company and sales thereof may be made by the Company directly
to institutional investors or others who may be deemed to be
underwriters within the meaning of the Securities Act with
respect to any resale thereof. The terms of any such sales will
be described in the Prospectus Supplement relating thereto.
Except as set forth in the applicable Prospectus Supplement, no
director, officer or employee of the Company or its subsidiaries
will solicit or receive a commission in connection with direct
sales by the Company of the Securities, although such persons may
respond to inquiries by potential purchasers and perform
ministerial and clerical work in connection with any such direct
sales.
EXPERTS
The Annual Report on Form 10-K for the fiscal year ended
December 31, 1993 of the Company incorporated by reference in
this prospectus and elsewhere in the registration statement has
been audited by Arthur Andersen & Co., independent public
accounts, as indicated in their reports with respect thereto, and
is included herein in reliance upon the authority of said firm as
experts in accounting and auditing in giving said reports.
Reference is made to said reports, which call attention to 1992
changes in accounting principles with respect to the methods of
accounting for income taxes and for postretirement benefits other
than pensions.
VALIDITY OF SECURITIES
The validity of the Securities offered hereby will be passed
upon for the Company by Charles O. Ziemer, Esq., General Counsel
of the Company, and will be passed upon for any underwriter,
dealer or
21
agent by Mayer, Brown & Platt, Chicago, Illinois. As of March 1,
1994, Mr. Ziemer beneficially owned 25,421 shares of Common
Stock. The opinions of Mr. Ziemer and Mayer, Brown & Platt with
respect to certain series of Securities may be subject to certain
conditions and assumptions, as indicated in the Prospectus
Supplement describing such series. Mayer, Brown & Platt is
currently representing the Company in certain legal matters.
22
<PAGE>
<PAGE>
No person has been authorized
to give any information or to
make any representations not
contained in this Prospectus and,
if given or made, such information
or representations must not be
relied upon as having been authorized
by the Company or any underwriter,
agent or dealer. This Prospectus
does not constitute an offer of
any securities other than those
to which it relates or an offer
to sell, or a solicitation of an $300,000,000
offer to buy, to any person in any
jurisdiction where such an offer or
solicitation would be unlawful.
Neither the delivery of this
Prospectus nor any sale made
hereunder shall, under any
circumstances, create any
implication that the information
contained herein is correct as of
any time subsequent to the date hereof.
[LOGO]
___________________
CBI INDUSTRIES, INC.
TABLE OF CONTENTS
Debt Securities
Page Preferred Stock
Common Stock
Available Information............ 2
Documents Incorporated by
Reference...................... 2
______________________
The Company...................... 3
Use of Proceeds.................. 3 PROSPECTUS
Selected Ratios.................. 3
Description of Debt Securities... 4
______________________
Description of Capital Stock..... 14
Plan of Distribution............. 20
Experts.......................... 21
Validity of Securities........... 21
[ , 1994]
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses in connection with the issuance and
distribution of the Securities being registered are as follows,
other than the underwriting discounts and commissions. All such
expenses are estimated except for the SEC Filing Fees:
SEC Filing Fee $103,448
Trustee's Fees and Expenses $ 30,000
Accounting Fees and Expenses $ 30,000
Legal Fees and Expenses $ 75,000
Printing Expenses $ 80,000
Blue Sky Fees and Expenses $ 15,000
Rating Agency Fees $120,000
Miscellaneous Expenses $ 21,522
Total $475,000
____________
Item 15. Indemnification of Directors and Officers.
Reference is made to Section 145 of the General Corporation
Law of the State of Delaware which provides generally that a
person sued as a director, officer, employee or agent of a
corporation may be indemnified by the corporation in non-
derivative suits for expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement if such person
acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the corporation. In
the case of criminal actions and proceedings such person must
also have had no reasonable cause to believe his conduct was
unlawful. Indemnification of expenses is also authorized in
stockholder derivative actions provided such person 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 so long as
he had not been found liable to the corporation. Even in this
latter instance, the court may determine that in view of all the
circumstances such person is entitled to indemnification for such
expenses as the court deems proper. A person sued as a director,
officer, employee or agent of a corporation who has been
successful in defense of the action must be indemnified by the
corporation against expenses. A corporation may amend its
certificate of incorporation to eliminate or limit personal
liability of a director to the corporation or its stockholders
for monetary damages for breach of the director's fiduciary duty
of care, although such an amendment may not eliminate the
liability of a director for breaching his duty of loyalty,
failing to act in good faith, engaging in intentional misconduct
or knowingly violating a law, declaring an illegal dividend or
approving an illegal stock repurchase, or obtaining an improper
personal benefit.
Article Sixteenth of the Company's Certificate of
Incorporation eliminates director liability to the extent
described in the preceding sentence. Article VIII of the
Company's By-Laws permits indemnification of directors and
officers of the Company to the fullest extent permitted by the
Delaware General Corporation Law, and provides that expenses
incurred by a director or officer in defending certain suits or
proceedings may be conditionally paid by the Company in advance
of the final disposition of such actions.
The Company has provided liability insurance for each
director and officer for certain losses arising from claims or
charges made against them while acting in their capacities of
directors or officers of the Company.
Item 16. Exhibits.
The following exhibits are filed as part of this Registration
Statement.
(1)(a) --Form of Underwriting Agreement for Debt Securities.
(b) --Form of Underwriting Agreement for Capital Stock.
(c)* --Form of Agency Agreement.
(4)(a) --Form of Indenture dated as of March 1, 1994 between
the Company and Chemical Bank, as Trustee.
(b) --Certificate of Incorporation of the Company, as
amended, (filed as Exhibit 3 to the Company's Form 10-Q
Quarterly Report dated November 13, 1992 (Commission
File No. 1-7833) and incorporated herein by reference).
(c) --By-laws, as amended (filed as Exhibit 3(b) to the
Company's Form 10-K Annual Report for the fiscal year
ended December 31, 1990 (Commission File No. 1-7833)
and incorporated by reference herein).
(d) --Amendment and Restatement dated as of August 8, 1989
of a Rights Agreement dated as of March 4, 1986 between
the Company and First Chicago Trust Company, as Rights
Agent (filed as Exhibit (2) to the Company's Current
Report on Form 8-K dated August 8, 1989 (Commission
File No. 1-7833) and incorporated herein by reference).
(5) --Opinion of Charles O. Ziemer, Senior Vice President and
General Counsel of CBI Industries, Inc.
(12) --Statement of computation of ratios of earnings to fixed
charges and earnings to fixed charges and preferred stock
dividends.
(23)(a) --Consent of Arthur Andersen & Co.
(b) --Consent of Charles O. Ziemer (contained in, and
incorporated herein by reference to, Exhibit 5)
(24) --Power of Attorney (included under the caption entitled
"Power of Attorney" in Part II of this Registration
Statement).
(25) --Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of Chemical Bank.
___________
*To be filed by amendment or as an exhibit to Form 8-K in
reference to the specific offering of Securities, if any, to
which it relates.
Item 17. Undertakings.
The undersigned registrant hereby undertakes as follows:
(a)(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 undertakings (i) and (ii) do not
apply if the information required to be included in a post-
effective amendment is contained in periodic reports filed
by the Registrant pursuant to Sections 13 or 15(d) of the
Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b)(1) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (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.
(2) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the provisions described in Item 15 above, or otherwise, the
registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of
the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
(c)(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 a part of
this Registration Statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that
contains a form of prospectus shall be deemed to be a new
Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
<PAGE>
<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
Village of Oak Brook, State of Illinois on March 9, 1994.
CBI INDUSTRIES, INC.
By: /S/ John E. Jones
John E. Jones, Chairman of the
Board, President and Chief
Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of CBI Industries,
Inc., hereby severally constitute and appoint John E. Jones,
George L. Schueppert, and Buel T. Adams, and each of them, agent
and attorney-in-fact, with full power of substitution and
resubstitution for them and in their names, place and stead, to
sign for us, and in our names in the capacities indicated below,
any and all amendments (including post-effective amendments) to
this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as
fully to all intents and purposes as each of us might or could do
in person, hereby ratifying and confirming all that said
attorney-in-fact and agents, or any of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Witness our hands on the date set forth below.
__________________________
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following
persons in the capacities indicated below on March 9, 1994.
Signature Title
/S/ John E. Jones Chairman of the Board,
John E. Jones President and Chief
Executive Officer
(Principal Executive
Officer)
/S/ Lewis E. Akin Executive Vice President
Lewis E. Akin and Director
/S/ Wiley N. Caldwell Director
Wiley N. Caldwell
/S/ Robert J. Daniels Executive Vice President
Robert J. Daniels and Director
/S/ Robert G. Wallace Director
Robert G. Wallace
Director
Robert J. Day
Director
John T. Horton
Director
Gary E. MacDougal
Director
Edward J. Mooney
/S/ George L. Schueppert Executive Vice President
George L. Schueppert -Finance and Director
(Principal Financial
Officer)
/S/ Alan J. Schneider Vice President and
Alan J. Schneider Controller
(Principal Accounting
Officer)
/S/ John F. Riordan Director
John F. Riordan
Director
Robert T. Stewart
/S/ E.H. Clark, Jr. Director
E.H. Clark, Jr.
<PAGE>
<PAGE>
sequentially
exhibit numbered
no. description page
(1)(a) Form of Underwriting Agreement for
Debt Securities.
(b) Form of Underwriting Agreement for
Capital Stock.
(c)* Form of Agency Agreement.
(4)(a) Form of Indenture dated as of March 1,
1994 between the Company and Chemical
Bank, as Trustee.
(b) Certificate of Incorporation of the
Company, as amended, (filed as Exhibit 3
to the Company's Form 10-Q Quarterly
Report dated November 13, 1992
(Commission File No. 1-7833) and
incorporated herein by reference).
(c) By-laws, as amended (filed as Exhibit
3(b) to the Company's Form 10-K Annual
Report for the fiscal year ended December
31, 1990 (Commission File No. 1-7833)
and incorporated by reference herein).
(d) Amendment and Restatement dated as of
August 8, 1989 of a Rights Agreement dated
as of March 4, 1986 between the Company
and First Chicago Trust Company, as Rights
Agent (filed as Exhibit (2) to the
Company's Current Report on Form 8-K dated
August 8, 1989 (Commission File No. 1-7833)
and incorporated herein by reference).
(5) Opinion of Charles O. Ziemer, Senior Vice
President and General Counsel of CBI
Industries, Inc.
(12) Statement of computation of ratios of
earnings to fixed charges and earnings to
fixed charges and preferred stock dividends.
(23)(a) Consent of Arthur Andersen & Co.
(b) Consent of Charles O. Ziemer (contained
in, and incorporated herein by reference
to, Exhibit 5)
(24) Power of Attorney (included under the
caption entitled "Power of Attorney" in
Part II of this Registration Statement).
(25) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture
Act of 1939 of Chemical Bank.
___________
* To be filed by amendment or as an exhibit to Form 8-K in
reference to the specific offering of Securities, if any, to
which it relates.
EXHIBIT (1)(a)
CBI INDUSTRIES, INC.
[DEBT SECURITIES]
UNDERWRITING AGREEMENT
[Date]
[Names and addresses of Underwriters]
Dear Sirs:
CBI Industries, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the Underwriters named in Schedule
I hereto (the "Underwriters") _______________________ aggregate
principal amount of ______% Notes due _________________ (the
"Securities"). The Securities are to be issued under an
Indenture (the "Indenture"), dated as of March 1, 1994, between
the Company and Chemical Bank, as the trustee (the "Trustee").
This is to confirm the agreement concerning the purchase of the
Securities from the Company by the Underwriters.
1. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 with respect to the
Securities (i) has been prepared by the Company in conformity in
all material respects with the requirements of the Securities Act
of 1933, as amended (the "Act"), and the rules and regulations of
the Securities and Exchange Commission (the "Commission")
thereunder, (ii) has been filed with the Commission under the Act
and (iii) has become effective under the Act. If any post-
effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared
effective by the Commission. Copies of that registration
statement as amended to date have been delivered by the Company
to you as the representative (the "Representative") of the
Underwriters. As used in this Agreement, "Effective Time" means
the date and the time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Effective Date" means the
date of the Effective Time; "Preliminary Prospectus" means each
prospectus included in that registration statement or amendments
thereto before it becomes effective under the Act, and any
prospectus filed with the Commission by the Company with the
consent of the Representative pursuant to Rule 424(a) of the
Rules and Regulations, relating to the offering and sale of the
Securities; "Registration Statement" means that same registration
statement when it becomes effective under the Act, including any
documents incorporated by reference at that time; and
"Prospectus" means the prospectus or prospectus supplement as
first filed with the Commission by the Company with the consent
of the Representative pursuant to Rule 424(b) of the Rules and
Regulations, relating to the offering and sale of the Securities.
Reference made herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein as of the date of such
Preliminary Prospectus or Prospectus, as the case may be, and any
reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed under the Securities Exchange Act of
1934 (the "Exchange Act") after the date of such Preliminary
Prospectus or Prospectus, as the case may be, and incorporated by
reference in such Preliminary Prospectus or Prospectus. The
Company has not received any order from the Commission or
otherwise preventing or suspending the use of any Preliminary
Prospectus. For purposes of this Agreement, "Rules and
Regulations" means the rules and regulations adopted by the
Commission under either the Act or the Exchange Act as
applicable.
(b) The Registration Statement and the Prospectus conform, and
any post-effective amendment to the Registration Statement and
the Prospectus as amended or supplemented, including any document
filed by the Company after the Effective Date pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of the Securities ("Incorporated
Documents"), will conform, in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and
the Rules and Regulations. The Indenture conforms to the
requirements of the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the applicable rules and regulations
thereunder. The Registration Statement (as of the Effective
Time) did not, and any post-effective amendment thereto, the
Prospectus and the Prospectus as amended or supplemented
(including Incorporated Documents) as of the date of filing will
not, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light
of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or
warranty as to that part of the Registration Statement which
consists of the Statement of Eligibility and Qualification under
the Trust Indenture Act of the Trustee or as to information
contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written
information furnished to the Company by the Trustee or through
the Representative by or on behalf of any Underwriter
specifically for inclusion therein.
(c) Neither the Company nor any of its significant
subsidiaries (as defined in Paragraph 12 of this Agreement) is in
violation of its certificate of incorporation or by-laws or is in
default under any agreement, indenture or instrument the effect
of which violation or default would be material to the Company
and its subsidiaries taken as a whole. The execution, delivery
and performance of this Agreement and the transactions
contemplated hereby, including without limitation the issuance
and sale of the Securities by the Company, will not conflict
with, result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its
subsidiaries pursuant to the terms of, or constitute a breach or
default under, any agreement, indenture or instrument, or result
in a violation of the certificate of incorporation or by-laws of
the Company or any of its subsidiaries or of any order, rule or
regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their
property. Except as required by the Act, the Exchange Act and
applicable state securities laws, no consent, authorization or
order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and
performance of this Agreement.
(d) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of
the State of Delaware, with an authorized and outstanding capital
stock as set forth in the Prospectus, is qualified to do business
as a foreign corporation and is in good standing in each of the
several jurisdictions where such qualification is required for
the conduct of its business or the lease or ownership of its
principal properties and has all necessary power and authority to
transact its business as described in the Prospectus.
(e) Each of the subsidiaries of the Company has been duly
incorporated and is validly existing and in good standing as a
corporation under the laws of its jurisdiction of incorporation,
is qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where such qualification is
required for the conduct of its business or the lease or
ownership of its principal properties, in each case except where
the failure to be duly incorporated, in good standing or so
qualified would not materially adversely affect the business of
the Company and its subsidiaries taken as a whole. Each of the
subsidiaries has all necessary power and authority to transact
the business in which it is presently engaged.
(f) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, since the date of the latest
audited financial statements of the Company included in the
Registration Statement and Prospectus, there has not been any
material adverse change in the condition of the Company and its
subsidiaries taken as a whole, financial or otherwise, or in the
results of operations or prospects of the Company and its
subsidiaries taken as a whole; except as set forth in or
contemplated by the Registration Statement or the Prospectus,
neither the Company nor any of its subsidiaries has incurred any
liability or obligation or entered into any transactions, in each
case material to the Company and its subsidiaries taken as a
whole, since the respective dates as of which information is
given in the Registration Statement and the Prospectus otherwise
than in the ordinary course of business; and, there has been no
change in the consolidated financial position of the Company and
its subsidiaries since the date of the most recent audited
balance sheet included or incorporated by reference in the
Registration Statement except (i) changes in the ordinary course
of business which have not been, either individually or in the
aggregate, materially adverse to the Company or (ii) changes
described in or contemplated by the Registration Statement and
the Prospectus.
(g) The Company holds all material tariffs, licenses,
certificates and permits from governmental authorities necessary
for the conduct of its business as described in the Prospectus
and owns or possesses adequate rights to use all material
patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of such
business and has not received any notice of conflict with the
asserted rights of others in respect thereof.
(h) The Company and its subsidiaries have good and marketable
title in fee simple to all real property owned by them and good
and marketable title to such of their personal property owned by
them that is, when considered either individually or in the
aggregate, necessary to the operations of the Company or any of
its subsidiaries, as the case may be, in each case free and clear
of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries that are, when
considered either individually or in the aggregate, necessary to
the operations of the Company or any of its subsidiaries, as the
case may be, are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries.
(i) Except as set forth in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has
any litigation or governmental, administrative or other
proceeding pending or threatened of a character which (a) could
reasonably be expected to result in a judgment or decree having a
material adverse effect on the business or financial condition of
the Company and its subsidiaries taken as a whole, or (b) is
required to be disclosed in the Registration Statement or the
Prospectus.
(j) The Company is not in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may
be subject nor has it failed to obtain any tariff, license,
permit, franchise or other governmental authorization necessary
to the ownership of its property or to the conduct of its
business, which violation or failure to obtain is likely to have
a material adverse effect on the condition (financial or other),
properties, prospective results of operations or net worth of the
Company and its subsidiaries, taken as a whole.
(k) To the best of the Company's knowledge, Arthur Andersen &
Co., whose report appears in the Company's Annual Report on Form
10-K for the most recent year which is incorporated in the
Prospectus by reference, are independent public accountants as
required by the Act and the Rules and Regulations.
(l) The filing of the Registration Statement and the execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the
board of directors of the Company, and all necessary corporate
action to authorize and approve the same has been taken. The
Securities have been duly authorized and, when issued,
authenticated and delivered pursuant to the Indenture against
payment of the agreed upon consideration therefor pursuant to
this Agreement, such Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided by the Indenture, which is in the form filed as
an exhibit to the Registration Statement, and will be enforceable
in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general
principles of equity; the Indenture has been duly authorized and
is duly qualified under the Trust Indenture Act and constitutes a
valid and legally binding obligation of the Company, enforceable
in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general
principles of equity; and the Indenture conforms and the
Securities, when issued, will conform to the descriptions thereof
contained in the Registration Statement and the Prospectus. None
of the Securities will be, on the Delivery Date (as hereinafter
defined), subject to any lien, claim, encumbrance, pre-emptive
rights or any other claim of any third party, other than those
created or incurred by any Underwriter.
(m) All of the authorized shares of the Common Stock of the
Company have been validly authorized and are fully paid and
nonassessable with no personal liability attaching to the
ownership thereof.
[If the Securities are convertible into common stock, add the
following paragraph and such other representations as are deemed
necessary or appropriate by the Company and the Representative:
(n) If the Securities are convertible into shares of common
stock of the Company in accordance with the terms thereof and
this Agreement, such shares of common stock initially issuable
upon conversion of the Securities have been duly authorized and
reserved for issuance, and when issued and delivered pursuant to
the terms thereof will be validly issued;]
(o) The consolidated financial statements included or
incorporated by reference as part of the Registration Statement
or any Preliminary Prospectus or the Prospectus present fairly,
and the financial statements in any Incorporated Document will
present fairly, the financial condition and results of operations
of the entities purported to be shown thereby, at the dates and
for the periods indicated, and have been prepared, and in the
case of financial statements included in any Incorporated
Document will be prepared, in conformity with generally accepted
accounting principles applied on a consistent basis throughout
the periods involved except as otherwise stated therein.
(p) Since the end of its latest fiscal year, the Company has
timely filed all documents and amendments to previously filed
documents required to be filed by it pursuant to Sections 12, 13,
14 and 15(d) of the Exchange Act. The documents incorporated by
reference into each Preliminary Prospectus and the Prospectus as
of the respective dates of filing with the Commission were, and
each Incorporated Document will be, prepared by the Company in
conformity in all material respects with the requirements of the
Exchange Act and the Rules and Regulations, and such documents
have been timely filed, or in the case of Incorporated Documents
will be timely filed, as required thereby. True copies of each
of the documents incorporated by reference into each Preliminary
Prospectus and the Prospectus have been, and Incorporated
Documents will be, promptly delivered by the Company to the
Representative.
(q) There are no contracts or other documents that are
required to be filed as exhibits to the Registration Statement by
the Act or by the Rules and Regulations or which were required to
be filed as exhibits to any document incorporated by reference in
any Preliminary Prospectus or the Prospectus by the Exchange Act
or the Rules and Regulations which have not been filed as
exhibits to the Registration Statement, or incorporated therein
by reference as permitted by the Rules and Regulations, or that
are required to be summarized in the Prospectus that are not so
summarized.
(r) No person has the right to require the Company to register
any securities for offering and sale under the Act by reason of
filing of the Registration Statement with the Commission or the
issue and sale of the Securities by the Company.
(s) The Company has not taken and will not take, directly or
indirectly, any action which is designed to cause or result in,
or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the
Securities to facilitate the sale or resale of the Securities.
2. On the basis of the representations and warranties
contained in, and subject to the terms and conditions of, this
Agreement, the Company agrees to sell to each of the
Underwriters, severally and not jointly, and each of the
Underwriters, severally and not jointly, agrees to purchase the
principal amount of Securities set forth opposite that
Underwriter's name in Schedule I hereto at a purchase price equal
to _______% of the principal amount of such Securities.
3. The Company shall not be obligated to deliver any
Securities except upon payment for all the Securities to be
purchased hereunder or as hereinafter provided.
If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Securities that
the defaulting Underwriter agreed but failed to purchase in the
respective proportions that the principal amount of the
Securities set opposite the name of each remaining non-defaulting
Underwriter in Schedule I hereto bears to the principal amount of
the Securities set opposite the names of all the remaining non-
defaulting Underwriters in Schedule I hereto; provided, however,
that the remaining non-defaulting Underwriters shall not be
obligated to purchase any Securities if the principal amount of
the Securities that the defaulting Underwriter or Underwriters
agreed but failed to purchase exceeds _______% of the aggregate
principal amount of the Securities, and any remaining non-
defaulting Underwriter shall not be obligated to purchase more
than 110% of the principal amount of the Securities set opposite
its name in Schedule I hereto. If the foregoing maximums are
exceeded, the remaining non-defaulting Underwriters, or those
other underwriters satisfactory to the Representative who so
agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them,
all of the Securities; if the remaining Underwriters or other
underwriters satisfactory to the Representative do not elect to
purchase the Securities that the defaulting Underwriter or
Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting
Underwriter or the Company, except that the Company will continue
to be liable for the payment of expenses as set forth in
Paragraph 5(j) hereof.
Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated to agree to
purchase the Securities that were to be purchased by a defaulting
or withdrawing Underwriter, either the Representative or the
Company may postpone the Delivery Date (as hereinafter defined)
for up to seven full business days in order to effect any changes
in the Registration Statement, the Prospectus or in any other
document or arrangement that, in the opinion of counsel to the
Company or counsel to the Underwriters, may be necessary.
4. Delivery of the Securities shall be made in [city,
state] , at [time] , [city] time, on
the fifth business day following the date of this Agreement or at
such place or later date and time as shall be determined by
agreement between the Representative and the Company. This date
and time are sometimes referred to as the "Delivery Date." On
the Delivery Date the Company shall deliver the Securities
through the facilities of The Depository Trust Company for the
account of each Underwriter against payment to or upon the order
of the Company of the purchase price by [wire transfer of federal
(same-day) funds] [certified or official bank check or check
payable in New York Clearing House funds]. Time shall be of the
essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligation of each
Underwriter hereunder (subject to the timely delivery by the
Representative of the request referred to in the following
sentence). Upon delivery the Securities shall be in such
denominations and registered in such names as the Representative
shall request in writing not less than two full business days
prior to the Delivery Date. For the purpose of expediting the
checking and packaging of the Securities, the Company shall make
the certificates therefor available for inspection by the
Representative in New York, New York, not later than [time]
on the business day prior to the Delivery Date.
All certificates, opinions and documents required to be
delivered, and payment hereunder, shall be delivered and paid on
the Delivery Date specified at the offices of ___________________
________________________________________________________________,
counsel to the Company, [address] .
5. The Company agrees:
(a) To furnish promptly to the Representative and to counsel
to the Underwriters a signed copy of the Registration Statement
as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all documents
incorporated therein by reference and Incorporated Documents and
all consents and exhibits filed therewith;
(b) To deliver promptly to the Representative such number of
conformed copies of the Registration Statement as originally
filed and each amendment thereto and such number of each
Preliminary Prospectus, the Prospectus, any amended or
supplemented Prospectus, documents incorporated by reference in
any of the foregoing documents and any Incorporated Documents, as
the Representative may reasonably request;
(c) To file with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may be, in the judgment of the Representative,
required by the Act or requested by the Commission and approved
by the Representative;
(d) Prior to filing with the Commission any Preliminary
Prospectus, amendment to the Registration Statement or supplement
to the Prospectus, any Prospectus pursuant to Rule 424 of the
Rules and Regulations or any Incorporated Document, to furnish a
copy thereof to the Representative and counsel to the
Underwriters and obtain the consent of the Representative to the
filing;
(e) To comply with all requirements imposed by the Act
necessary for the distribution of the Securities as contemplated
by the provisions hereof and by the Prospectus and to make the
requisite filings with the Commission pursuant to Rule 430A and
to advise the Representative immediately (i) of such filings or
when any post-effective amendment thereto becomes effective, (ii)
of any request by the Commission for an amendment to the
Registration Statement, a supplement to the Prospectus, an
amendment to any documents incorporated by reference in the
Prospectus, any Incorporated Document or any amendment thereto or
for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any document
incorporated by reference in the Prospectus or any Incorporated
Document, or of the initiation or threat of any stop-order
proceeding or of any challenge to the accuracy or adequacy of any
document incorporated by reference in the Prospectus or any
Incorporated Document, (iv) of receipt by the Company of any
notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation
or threat of any proceeding for that purpose, and (v) of the
happening of any event prior to the termination of the offering
of the Securities that makes untrue any statement of a material
fact made in the Registration Statement or the Prospectus or that
may require the making of a change in the Registration Statement
or the Prospectus in order to make any material statement therein
not misleading;
(f) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting of that order at the
earliest possible time;
(g) As soon as practicable after the effective date of the
Registration Statement, to make generally available to its
security holders and to deliver to the Representative an earnings
statement, conforming with the requirements of Section 11(a) of
the Act, covering a period of at least twelve months beginning
after the effective date of the Registration Statement;
(h) For a period of three years after the effective date of
the Registration Statement, to furnish to the Representative
copies of all public reports and all reports and financial
statements furnished by the Company to the New York Stock
Exchange, Inc., pursuant to requirements of or agreements with
such Exchange or to the Commission pursuant to the Exchange Act
or any Rule or Regulation, and to furnish from time to time such
other information concerning the Company as the Representative
may reasonably request;
(i) To take or cause to be taken all necessary action and
furnish to whomever the Representative may direct such
information as may be required in qualifying the Securities for
sale under the laws of such jurisdictions which the
Representative shall designate; provided, however, that in no
event shall the Company be obligated to qualify as a foreign
corporation, or to execute a general consent for service of
process, in any jurisdiction in which it is not now so qualified.
In each jurisdiction where any of the Securities shall have been
qualified as above provided, the Company will file such reports
and statements as may be required to continue such qualification
for a period of not less than one year from the effective date of
the Registration Statement;
(j) To pay (i) the costs incident to, and any taxes payable in
connection with, the authorization, issuance, sale and delivery
of the Securities, (ii) the costs incident to the preparation,
printing and filing under the Act of the Registration Statement,
any Preliminary Prospectus and the Prospectus and any amendments
and exhibits thereto, (iii) any costs incident to the
preparation, printing and filing of any document and any
amendments and exhibits thereto required to be filed by the
Company under the Exchange Act, (iv) the costs of distributing
the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereto (including
exhibits), any Preliminary Prospectus, the Prospectus, any
amendment or supplement to the Prospectus, any documents
incorporated by reference in any of the foregoing documents and
any Incorporated Documents, as provided in this Agreement, (v)
the costs of printing and distributing the Agreement Among
Underwriters, this Agreement, the Selected Dealer Agreement, and
the Underwriters' Questionnaire and Power of Attorney, (vi) any
costs of filings with the National Association of Securities
Dealers, Inc. or any costs of listing the Securities on any
securities exchange, (vii) any fees and expenses of qualifying
the Securities under the securities laws of the several
jurisdictions as provided in this paragraph and of preparing,
printing and distributing a Blue Sky Memorandum, including fees
and expenses of counsel to the Underwriters in connection
therewith, and (viii) all other costs and expenses incident to
the performance of the Company's obligations under this
Agreement; provided, however, that except as provided in this
Paragraph and in Paragraph 9, the Underwriters shall pay their
own costs and expenses, including the fees and expenses of their
counsel, any transfer taxes on the Securities that they may sell,
and the expenses of advertising made by the Underwriters in
connection with any offering of the Securities;
(k) Until the termination of the offering of the Securities,
to timely file all documents, and any amendments to previously
filed documents, required to be filed by it pursuant to Sections
12, 13, 14 or 15(d) of the Exchange Act;
(l) During the period beginning from the date hereof and
continuing to and including the Delivery Date, not to announce an
offer for sale, make an offer for sale, sell or otherwise dispose
of any debt securities of the Company which have terms
substantially similar to the terms of the Securities, without the
consent of the Representative; and
(m) The Company will not take, directly or indirectly, any
action which is designed to cause or result in, or which might
reasonably be expected to constitute, the stabilization or
manipulation of the price of the Securities to facilitate the
sale or resale of the Securities.
6. (a) The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act from and against any losses,
claims, damages or liabilities, joint or several (and any actions
in respect thereof), to which that Underwriter or controlling
person may be subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (and actions in
respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, any Incorporated Document or the
Registration Statement or Prospectus as amended or supplemented,
or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter and each such
controlling person promptly upon demand for any legal and other
expenses reasonably incurred by that Underwriter or controlling
person in investigating, defending or preparing to defend against
any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus or in the Registration Statement or the
Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information regarding such
Underwriter or the arrangements with respect to the underwriting
of the transactions contemplated hereby furnished to the Company
through the Representative by or on behalf of that Underwriter
specifically for inclusion therein; and provided, further, that,
as to any Preliminary Prospectus or any preliminary prospectus
supplement, the indemnity agreement contained in this
subparagraph (a) shall not inure to the benefit of any
Underwriter (or any person controlling any such Underwriter) on
account of any loss, claim, damage or liability arising from the
sale of Securities by such Underwriter to any person if such
Underwriter failed to send or give a copy of the Prospectus in
which such untrue statement or omission of a material fact was
corrected to such person within the time required by the Act,
unless such failure is the result of noncompliance by the Company
with subparagraph 5(b) or 5(d) hereof. For purposes of the
second proviso to the immediately preceding sentence, under no
circumstances shall any Underwriter be obligated to give any
document incorporated by reference, or any supplement or
amendment to any document incorporated by reference, in a
Preliminary Prospectus or the Prospectus (or any Incorporated
Document) to any person. The foregoing indemnity agreement is in
addition to any liability that the Company may otherwise have to
any Underwriter or any controlling person of that Underwriter.
(b) Each Underwriter severally, but not jointly, shall
indemnify and hold harmless the Company, each of its directors,
each of its officers who signed the Registration Statement and
any person who controls the Company within the meaning of the Act
from and against any losses, claims, damages or liabilities,
joint or several (and any actions in respect thereof), to which
the Company or any such director, officer or controlling person
may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the
Prospectus or the Registration Statement or Prospectus as amended
or supplemented, or arise out of, or are based upon, the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information regarding such Underwriter or the arrangements with
respect to the underwriting of the transactions contemplated
hereby furnished to the Company through the Representative by or
on behalf of that Underwriter specifically for inclusion therein,
and shall reimburse promptly upon demand any legal and other
expenses reasonably incurred by the Company or any such director,
officer or controlling person in investigating, defending or
preparing to defend against any such loss, claim, damage,
liability or action. The foregoing indemnity agreement is in
addition to any liability that any Underwriter may otherwise have
to the Company or any of its directors, officers or controlling
persons.
(c) Promptly after receipt by an indemnified party under this
Paragraph 6 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Paragraph, notify the indemnifying party in writing of the claim
or the commencement of the action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party
otherwise than under this Paragraph. If any such claim or action
is brought against an indemnified party, and it notifies the
indemnifying party thereof, the indemnifying party shall be
entitled to participate therein, and, to the extent that it
wishes, jointly with any other indemnifying party similarly
notified, to assume the defense thereof with counsel satisfactory
to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the
defense of such claim or action, and approval of counsel by the
indemnified party in accordance with the foregoing, the
indemnifying party shall not be liable to the indemnified party
under this Paragraph for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided,
however, that the Representative shall have the right to employ
counsel to represent the Representative and those Underwriters
and their respective controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity
may be sought by the Underwriters against the Company under this
Paragraph if the defendants with respect to any such claim
include some or all of the Underwriters in addition to the
Company, and the Representative shall have reasonably concluded
that there may be legal defenses available to it and/or other
Underwriters which are different from or additional to those
available to the Company or that there exists some conflict of
interest between the interest of the Underwriters and the Company
with respect to such claim that makes separate representation
desirable in the reasonable judgment of the Representative, and
in the event of the foregoing the reasonable fees and expenses of
such separate counsel shall be paid by the Company. It is
understood, however, in connection with the Company's undertaking
in the preceding proviso, that the Company shall not be liable
for the expenses of more than one separate counsel representing
the Representative or the other Underwriters or their respective
controlling persons who are parties to the claim referred to in
such proviso.
(d) If the indemnification provided for in this Paragraph
shall for any reason be unavailable to an indemnified party under
Paragraph 6(a) or 6(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other
from the offering of the Securities, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering
of the Securities (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions
received by the Underwriters with respect to such offering, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material
fact or omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Paragraph 6(d)
were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof,
referred to above in this Paragraph, shall be deemed to include,
for purposes of this Paragraph, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Paragraph, no Underwriter
shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason
of the untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Paragraph are several in
proportion to their respective underwriting obligations and not
joint.
[Insert appropriate language referencing these sections of the
Prospectus Supplement that have been provided by the
Underwriters.]
(e) The Underwriters severally confirm that the statements
contained in the last paragraph on the front cover page of the
Prospectus and any amendment or supplement to the Prospectus and
under the caption "Underwriting" in the Prospectus or any
amendment or supplement to the Prospectus are correct and the
Company agrees that such statements constitute the only
information furnished in writing to the Company by or on behalf
of the Underwriters specifically for inclusion in the
Registration Statement and the Prospectus or any amendment or
supplement to the Prospectus.]
(f) The indemnity agreements contained in this Paragraph and
the representations, warranties and agreements of the Company and
the Underwriters contained in this Agreement shall survive the
delivery of and payment for the Securities and shall remain in
full force and effect, regardless of any termination or
cancellation of this Agreement and any investigation made by or
on behalf of any indemnified party.
7. (a) This Agreement shall become effective at [time]
, [city] time, on the first full business day following
the date hereof, or at such earlier time after the Registration
Statement becomes effective as the Representative shall first
release the Securities for sale to the public. The
Representative shall notify the Company immediately after it has
taken any action that causes this Agreement to become effective.
Until this Agreement is effective, it may be terminated by the
Company by notice to the Representative or by the Representative
by notice to the Company. For purposes of this Agreement, the
release of the Securities for sale to the public shall be deemed
to have been made when the Representative releases, by telegram
or otherwise, firm offers of the Securities to securities dealers
or release for publication a newspaper advertisement relating to
the Securities, whichever occurs first.
(b) The obligations of the Underwriters hereunder may be
terminated by the Representative, in its absolute discretion, by
notice given to and received by the Company prior to delivery of
and payment for the Securities, if prior to that time (i) the
Company shall have failed, refused or been unable to perform any
agreement on its part to be performed hereunder, (ii) any other
condition of the Underwriters' obligation hereunder is not
fulfilled, (iii) trading in securities generally on the New York
Stock Exchange is suspended, or minimum prices are established on
that Exchange, (iv) a banking moratorium is declared by Federal
or New York or Illinois State authorities, (v) there shall have
been such a material adverse change in general economic,
political or financial conditions or in the financial markets in
the United States such that, in the judgment of a majority in
interest of the several Underwriters, it would be inadvisable or
impracticable to proceed with the public offering of the
Securities or the delivery of the Securities on the terms and in
the manner contemplated by the Prospectus, or (vi) the United
States becomes engaged in major armed hostilities or there is an
escalation in such hostilities involving the United States or
there is a declaration of a national emergency or war by the
United States.
8. The respective obligations of the Underwriters hereunder
are subject, in their discretion, to the accuracy, when made and
on the Delivery Date of the representations and warranties of the
Company contained herein, to performance by the Company of its
obligations hereunder, and to each of the following terms and
conditions:
(a) The Prospectus shall have been filed with the Commission
in a timely fashion in accordance with Paragraph 5(e) hereof, all
post-effective amendments to the Registration Statement shall
have become effective, and all filings required by Rule 424 of
the Rules and Regulations shall have been made. At or before the
Delivery Date, no stop order suspending such effectiveness, nor
any order directed to any document incorporated by reference in
the Prospectus or any Incorporated Document, shall have been
issued, and prior to that time no stop-order proceeding shall
have been initiated or threatened by the Commission and no
challenge shall have been made by the Commission to the accuracy
or adequacy of any document incorporated by reference in the
Prospectus or any Incorporated Document. Any request of the
Commission for inclusion of additional information in the
Registration Statement or the Prospectus or otherwise shall have
been complied with or adequately disposed of following
discussions with the Commission's staff, and the Company shall
not have filed with the Commission the Prospectus or any
amendment or supplement to the Registration Statement or the
Prospectus or any Incorporated Document without complying with
Paragraph 5(d) hereof.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the Delivery Date that the Registration
Statement, the Prospectus, any Incorporated Document or any
amendment or supplement thereto contains an untrue statement of a
fact that, in the opinion of Mayer, Brown & Platt, counsel to the
Underwriters, is material or omits to state a fact that, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement and the
Securities and to the form of the Registration Statement, the
Prospectus and any Incorporated Document, other than financial
statements and other financial data, and all other legal matters
relating to this Agreement and such other documents and the
transactions contemplated hereby and thereby shall be
satisfactory in all respects to Mayer, Brown & Platt, counsel to
the Underwriters, and the Company shall have furnished to such
counsel all documents and information that such counsel may
reasonably request to enable them to pass upon such matters.
(d) The Company shall have furnished to the Representative on
the Delivery Date, a certificate, dated such Delivery Date, of
its President and its Executive Vice President and Chief
Financial Officer, certifying that:
(i) There are no legal or governmental administrative or
other proceedings pending or threatened against the Company or
its subsidiaries of a character required to be disclosed in the
Prospectus which are not disclosed therein;
(ii) The representations and warranties of the Company
contained herein are true and correct as of the Delivery Date;
that the Company has complied with all of its agreements herein
contained; and that the conditions set forth in subparagraphs
(a), (d), (e), (f), (g), (h), (i), (j) and (l) of this Paragraph
8 have been fulfilled;
(iii) Since the date of the latest audited financial
statements of the Company included in the Prospectus, there have
been no material transactions not in the ordinary course of
business entered into by the Company or its subsidiaries not
reflected in the Registration Statement or Prospectus and since
the date of the latest audited financial statements of the
Company included in the Prospectus, there have been no material
adverse changes in the financial condition of the Company and its
subsidiaries taken as a whole or in their consolidated financial
position or net assets as shown in the Registration Statement and
Prospectus other than as referred to or contemplated in the
Registration Statement and the Prospectus; and
(iv) They have carefully examined the Registration Statement,
the Prospectus and the documents incorporated therein and (A) as
of the effective date of the Registration Statement, the
Registration Statement, the Prospectus and such incorporated
documents did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (B) since the effective date of the Registration
Statement, no event has occurred that should have been set forth
in a supplement to or an amendment of the Prospectus or in an
Incorporated Document that has not been set forth in such a
supplement or amendment or in an Incorporated Document;
(e) At the Delivery Date, and since the respective dates as of
which information is given in the Prospectus, neither the Company
nor any subsidiary thereof shall have sustained any loss on
account of fire, flood, accident or other calamity (i) of such a
character as to interfere materially with the continuous
operation of the business of the Company and (ii) in the judgment
of the Representative, materially adversely affects the Company
and its subsidiaries taken as a whole, regardless of whether or
not such loss shall have been insured;
(f) The Company shall have furnished to the Representative on
the date of this Agreement and the Delivery Date, letters of
Arthur Andersen & Co., addressed to the Underwriters and dated
such Delivery Date, confirming that they are independent public
accounts within the meaning of the Act and are in compliance with
the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission,
and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective
dates of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the
date of such letter), the conclusions and findings of such
accountants with respect to the financial information and other
matters covered by their letter delivered to the Representative
concurrently with the execution of this Agreement and confirming
in all material respects the conclusions and findings set forth
in such prior letter;
(g) Since the respective dates of which information is given
in the Prospectus there has not been any material change in the
capital stock of the Company or any material increase in the
indebtedness for money borrowed of the Company or any material
adverse change in, or any development which is materially
adversely affecting, the financial position, results of
operations or prospects of the Company, except in all cases for
changes or developments which the Prospectus discloses or
contemplates;
(h) Subsequent to the date hereof (i) no downgrading shall
have occurred in the rating accorded any of the Company's debt
securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have announced that it proposes to withdraw or
has under surveillance or review with negative implications its
rating of any of the Company's debt securities;
(i) On the Delivery Date, the General Counsel of the Company
shall have furnished to the Representative his opinion, addressed
to the Underwriters and dated the Delivery Date, to the effect
that:
(i) Each of the Company, Chicago Bridge & Iron Company
("Chicago Bridge") and Liquid Carbonic Industries Corporation
("Liquid Carbonic"), Chicago Bridge and Liquid Carbonic being
wholly owned subsidiaries of the Company, has been duly
incorporated and is validly existing in good standing as a
corporation under the laws of Delaware, Illinois and Delaware,
respectively, and each is duly qualified to do business and in
good standing in each of the other United States jurisdictions
where such qualification is required for the conduct of its
business or ownership of its properties and where the failure to
be so qualified could reasonably be expected to have a material
adverse effect upon the Company and its subsidiaries taken as a
whole;
(ii) The Securities have been duly authorized and, when
issued, authenticated and delivered pursuant to the Indenture
against payment of the agreed upon consideration therefor
pursuant to this Agreement, such Securities will have been duly
executed, authenticated, issued and delivered and will constitute
valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture, which is in the form
filed as an exhibit to the Registration Statement, and will be
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity; the Indenture has been duly authorized and
is duly qualified under the Trust Indenture Act and constitutes a
valid and legally binding obligation of the Company, enforceable
in accordance with its terms as modified by applicable law,
except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity;
and the Indenture conforms and the Securities, when issued, will
conform to the description thereof contained in the Registration
Statement and the Prospectus;
[If the Securities are convertible into shares of common
stock, add the following paragraph and such other opinions as are
deemed necessary or appropriate by the Company and the
Representative:
If the Securities are convertible into shares of common stock
in accordance with the terms of this Agreement, such shares of
common stock initially issuable upon conversion of the Securities
have been duly authorized and reserved for issuance, and when
issued upon such conversion, shall be validly issued, fully paid
and non-assessable and not subject to any preemptive rights.]
(iii) The Registration Statement and Prospectus comply as to
form in all material respects with the requirements of the Act
and the Rules and Regulations thereunder, and the documents
incorporated (or deemed to be incorporated) by reference in the
Prospectus and the Incorporated Documents (if any) when filed
with the Commission appear on their face to have been
appropriately responsive to the requirements of the Exchange Act
and the Rules and Regulations, except that no opinion need be
expressed as to the financial statements, schedules and other
financial [and statistical] data contained in any of those
documents;
(iv) Such counsel has no reason to believe that the
Registration Statement (except as to the financial statements,
schedules and other financial [or statistical] data contained or
incorporated by reference therein, as to which such counsel need
express no opinion) at the time it became effective or the
Prospectus or any amendments or supplements thereto contain any
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the
circumstances under which they were made, not misleading;
(v) The Registration Statement has become effective under the
Act and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for such purpose have been
instituted or are pending or threatened;
(vi) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries has any litigation or
governmental, administrative or other proceeding, pending or
threatened, which are not disclosed in the Prospectus and which
are of a character that ought to be disclosed in the Prospectus;
(vii) To the best of such counsel's knowledge, there are no
contracts to which the Company or any of its subsidiaries is a
party which are required to be filed as exhibits to the
Registration Statement and are not so filed or required to be
summarized therein and are not so summarized;
(viii) The statements made in the Prospectus under the
caption "Description of the Notes," insofar as they purport to
summarize the provisions of documents or agreements specifically
referred to therein, fairly present the information called for
with respect thereto by Form S-3;
(ix) Neither the Company, Chicago Bridge or Liquid Carbonic
is in violation of its certificate of incorporation or by-laws,
or, to the best of such counsel's knowledge, in default under any
material agreement, indenture or instrument; and
(x) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance
of this Agreement will not conflict with, or result in the
creation or imposition of any lien, charge or encumbrance upon
any of the assets of the Company or any of its subsidiaries
(which creation or imposition would have a material adverse
effect on the Company and its subsidiaries taken as a whole)
pursuant to the terms of, or constitute a breach or default
under, any agreement, indenture or instrument known to such
counsel, or result in a material violation of the certificate of
incorporation or by-laws of the Company or any of its
subsidiaries or, to the best of such counsel's knowledge, any
order, rule or regulation of any court or governmental agency
having jurisdiction over the Company, any of its subsidiaries or
their property; and no consent, authorization or order of, or
filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this
Agreement by the Company, except such as may be required by the
Act, the Exchange Act and state securities laws.
(j) On the Delivery Date, the Company shall have furnished to
the Representative, addressed to the Underwriters, such other
opinions of counsel as may reasonably be requested relating to
matters arising on or after the date hereof.
(k) On the Delivery Date, Mayer, Brown & Platt, counsel for
the Underwriters, shall have furnished to the Representative
their opinion, addressed to the Underwriters and dated the
Delivery Date, with respect to the issuance and sale of the
Securities, the Registration Statement, the Prospectus and other
related matters as the Representative may reasonably require, and
the Company shall have furnished to such counsel such documents
as they request for the purpose of enabling them to pass upon
such matters.
(l) The Company shall have furnished such additional documents
and certificates as the Representative may reasonably request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in form
and substance satisfactory to Mayer, Brown & Platt, counsel to
the Underwriters.
9. If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the
Underwriters set forth in Paragraph 8 hereof is not satisfied or
because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any
provision hereof, other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters
severally upon demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
10. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement by ________________________
on behalf of the Representative and the Underwriters. Any notice
by the Company to the Underwriters shall be sufficient if given
in writing or by telegraph addressed to _________________________
_________________________________________________________________
________________________________________________________________,
and any notice by the Underwriters to the Company shall be
sufficient if given in writing or by telegraph addressed to the
Company at 800 Jorie Boulevard, Oak Brook, Illinois 60521-2268,
Attention: George L. Schueppert, Executive Vice President and
Chief Financial Officer.
11. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company, and their respective
successors. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to
in the preceding sentence, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision
contained herein, except that (a) the representations,
warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of
the person or persons, if any, who control any Underwriter within
the meaning of Section 15 of the Act, and (b) the indemnity
agreement of the Underwriters contained in Paragraph 6 of this
Agreement shall be deemed to be for the benefit of directors of
the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company.
12. For purposes of this Agreement, (a) "business day" means
any day on which the New York Stock Exchange is open for trading,
and (b) "subsidiary" and "significant subsidiary" have the
meanings set forth in Rule 405 of the Rules and Regulations.
13. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. This
Agreement may be executed in one or more counterparts, and if
executed in more than one counterpart the executed counterparts
shall together constitute a single instrument.
If the foregoing correctly sets forth the agreement among the
Company and the Underwriters, please indicate your acceptance in
the space provided for the purpose below.
Very truly yours,
CBI INDUSTRIES, INC.
By:___________________________
ACCEPTED:
______________________________________________
By:___________________________________________
For itself and as Representative of
the Underwriters
<PAGE>
<PAGE>
SCHEDULE I
Aggregate Principal
Underwriter Amount of Securities
TOTAL
EXHIBIT (1)(b)
CBI INDUSTRIES, INC.
[EQUITY SECURITIES]
UNDERWRITING AGREEMENT
[Date]
[Names and addresses of Underwriters]
Dear Sirs:
CBI Industries, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the Underwriters named in Schedule
I hereto (the "Underwriters") _______________________ shares of
its _______________ Stock ("______________ Stock"), $______ par
value per share (the "Firm Securities"). In addition, the
Company proposes to grant to the Underwriters an option to
purchase up to an additional _______________ shares of such
_______________ Stock, on the terms and for the purposes set
forth in Paragraph 2 (the "Option Securities"). The Firm
Securities and the Option Securities, if purchased, are
hereinafter called the "Securities." This is to confirm the
agreement concerning the purchase of the Securities from the
Company by the Underwriters.
1. The Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 with respect to the
Securities (i) has been prepared by the Company in conformity in
all material respects with the requirements of the Securities Act
of 1933, as amended (the "Act"), and the rules and regulations of
the Securities and Exchange Commission (the "Commission")
thereunder, (ii) has been filed with the Commission under the Act
and (iii) has become effective under the Act. If any post-
effective amendment to such registration statement has been filed
with the Commission prior to the execution and delivery of this
Agreement, the most recent such amendment has been declared
effective by the Commission. Copies of that registration
statement as amended to date have been delivered by the Company
to you as the representative (the "Representative") of the
Underwriters. As used in this Agreement, "Effective Time" means
the date and the time as of which such registration statement, or
the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; "Effective Date" means the
date of the Effective Time; "Preliminary Prospectus" means each
prospectus included in that registration statement or amendments
thereto before it becomes effective under the Act, and any
prospectus filed with the Commission by the Company with the
consent of the Representative pursuant to Rule 424(a) of the
Rules and Regulations, relating to the offering and sale of the
Securities; "Registration Statement" means that same registration
statement when it becomes effective under the Act, including any
documents incorporated by reference at that time; and
"Prospectus" means the prospectus or prospectus supplement as
first filed with the Commission by the Company with the consent
of the Representative pursuant to Rule 424(b) of the Rules and
Regulations, relating to the offering and sale of the Securities.
Reference made herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein as of the date of such
Preliminary Prospectus or Prospectus, as the case may be, and any
reference to any amendment or supplement to any Preliminary
Prospectus or Prospectus shall be deemed to refer to and include
any documents filed under the Securities Exchange Act of 1934
(the "Exchange Act") after the date of such Preliminary
Prospectus or Prospectus, as the case may be, and incorporated by
reference in such Preliminary Prospectus or Prospectus. The
Company has not received any order from the Commission or
otherwise preventing or suspending the use of any Preliminary
Prospectus. For purposes of this Agreement, "Rules and
Regulations" means the rules and regulations adopted by the
Commission under either the Act or the Exchange Act as
applicable.
(b) The Registration Statement and the Prospectus conform and
any post-effective amendment to the Registration Statement and
the Prospectus as amended or supplemented, including any document
filed by the Company after the Effective Date pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of the Securities ("Incorporated
Documents"), will conform, in all material respects, to the
requirements of the Act or the Exchange Act, as applicable, and
the Rules and Regulations. The Registration Statement (as of the
Effective Time) did not, and any post-effective amendment
thereto, the Prospectus and the Prospectus as amended or
supplemented (including Incorporated Documents) as of the date of
filing will not, contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein
or necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representation or warranty as to information contained in or
omitted from the Registration Statement or the Prospectus in
reliance upon and in conformity with written information
furnished to the Company through the Representative by or on
behalf of any Underwriter specifically for inclusion therein.
(c) Neither the Company nor any of its significant
subsidiaries (as defined in Paragraph 12 of this Agreement) is in
violation of its certificate of incorporation or by-laws or is in
default under any agreement, indenture or instrument the effect
of which violation or default would be material to the Company
and its subsidiaries taken as a whole. The execution, delivery
and performance of this Agreement and the transactions
contemplated hereby, including without limitation the issuance
and sale of the Securities by the Company, will not conflict
with, result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its
subsidiaries pursuant to the terms of, or constitute a breach or
default under, any agreement, indenture or instrument, or result
in a violation of the certificate of incorporation or by-laws of
the Company or any of its subsidiaries or of any order, rule or
regulation of any court or governmental agency having
jurisdiction over the Company, any of its subsidiaries or their
property. Except as required by the Act, the Exchange Act and
applicable state securities laws, no consent, authorization or
order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and
performance of this Agreement.
(d) The Company has been duly incorporated and is validly
existing and in good standing as a corporation under the laws of
the State of Delaware, with an authorized and outstanding capital
stock as set forth in the Prospectus, is qualified to do business
as a foreign corporation and is in good standing in each of the
several jurisdictions where such qualification is required for
the conduct of its business or the lease or ownership of its
principal properties and has all necessary power and authority to
transact its business as described in the Prospectus.
(e) Each of the subsidiaries of the Company has been duly
incorporated and is validly existing and in good standing as a
corporation under the laws of its jurisdiction of incorporation,
is qualified to do business as a foreign corporation and is in
good standing in each jurisdiction where such qualification is
required for the conduct of its business or the lease or
ownership of its principal properties, in each case except where
the failure to be duly incorporated, in good standing or so
qualified would not materially adversely affect the business of
the Company and its subsidiaries taken as a whole. Each of the
subsidiaries has all necessary power and authority to transact
the business in which it is presently engaged.
(f) Except as set forth in or contemplated by the Registration
Statement and the Prospectus, since the date of the latest
audited financial statements of the Company included in the
Registration Statement and Prospectus, there has not been any
material adverse change in the condition of the Company and its
subsidiaries taken as a whole, financial or otherwise, or in the
results of operations or prospects of the Company and its
subsidiaries taken as a whole; except as set forth in or
contemplated by the Registration Statement or the Prospectus,
neither the Company nor any of its subsidiaries has incurred any
liability or obligation or entered into any transactions, in each
case material to the Company and its subsidiaries taken as a
whole, since the respective dates as of which information is
given in the Registration Statement and the Prospectus otherwise
than in the ordinary course of business; and, there has been no
change in the consolidated financial position of the Company and
its subsidiaries since the date of the most recent audited
balance sheet included or incorporated by reference in the
Registration Statement except (i) changes in the ordinary course
of business which have not been, either individually or in the
aggregate, materially adverse to the Company or (ii) changes
described in or contemplated by the Registration Statement and
the Prospectus.
(g) The Company holds all material tariffs, licenses,
certificates and permits from governmental authorities necessary
for the conduct of its business as described in the Prospectus
and owns or possesses adequate rights to use all material
patents, patent applications, trademarks, service marks,
tradenames, trademark registrations, service mark registrations,
copyrights and licenses necessary for the conduct of such
business and has not received any notice of conflict with the
asserted rights of others in respect thereof.
(h) The Company and its subsidiaries have good and marketable
title in fee simple to all real property owned by them and good
and marketable title to such of their personal property owned by
them that is, when considered either individually or in the
aggregate, necessary to the operations of the Company or any of
its subsidiaries, as the case may be, in each case free and clear
of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect
the value of such property and do not interfere with the use made
and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries that are, when
considered either individually or in the aggregate, necessary to
the operations of the Company or any of its subsidiaries, as the
case may be, are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries.
(i) Except as set forth in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has
any litigation or governmental, administrative or other
proceeding pending or threatened of a character which (a) could
reasonably be expected to result in a judgment or decree having a
material adverse effect on the business or financial condition of
the Company and its subsidiaries taken as a whole, or (b) is
required to be disclosed in the Registration Statement or the
Prospectus.
(j) The Company is not in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may
be subject nor has it failed to obtain any tariff, license,
permit, franchise or other governmental authorization necessary
to the ownership of its property or to the conduct of its
business, which violation or failure to obtain is likely to have
a material adverse effect on the condition (financial or other),
properties, prospective results of operations or net worth of the
Company and its subsidiaries, taken as a whole.
(k) To the best of the Company's knowledge, Arthur Andersen &
Co., whose report appears in the Company's Annual Report on Form
10-K for the year ended December 31, ______, which is
incorporated in the Prospectus by reference, are independent
public accountants as required by the Act and the Rules and
Regulations.
(l) The filing of the Registration Statement and the execution
and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by the
board of directors of the Company, and all necessary corporate
action to authorize and approve the same has been taken. The
Securities have been duly authorized and, upon payment therefor
as provided herein, will be validly issued and outstanding, fully
paid and nonassessable with no personal liability attaching to
the ownership thereof. [The Securities have been issued in
accordance with the Certificate of Designations and are entitled
to the benefits thereof.] None of the Securities will be, on the
Delivery Date (as hereinafter defined), subject to any lien,
claim, encumbrance, pre-emptive rights or other claim of any
third party, other than those created or incurred by any
Underwriter.
(m) All of the authorized shares of the _______________ Stock
of the Company have been validly authorized and when shares of
the ______________ Stock of the Company have been issued and
delivered pursuant to this Agreement, all of the issued and
outstanding shares of the _______________ Stock of the Company
will be validly issued and outstanding, fully paid and
nonassessable with no personal liability attaching to the
ownership thereof. All of the issued shares of the
______________ Stock of the Company and all of the shares of
______________ Stock of the Company to be issued pursuant to this
Agreement, as described above, conform to the description thereof
contained in the Registration Statement and Prospectus.
[If the Preferred Stock is convertible into common stock, add
the following paragraph and such other representations as are
deemed necessary or appropriate by the Company and the
Representative:
(n) If the Securities are convertible into shares of common
stock of the Company in accordance with the terms thereof and
this Agreement and the Certificate of Designations, such shares
of common stock initially issuable upon conversion of the
Securities have been duly authorized and reserved for issuance,
and when issued and delivered pursuant to the terms of the
Certificate of Designations, will be validly issued, fully paid
and non-assessable and not subject to any preemptive rights;]
(o) The consolidated financial statements included or
incorporated by reference as part of the Registration Statement
or any Preliminary Prospectus or the Prospectus present fairly,
and the financial statements in any Incorporated Document will
present fairly, the financial condition and results of operations
of the entities purported to be shown thereby, at the dates and
for the periods indicated, and have been prepared, and in the
case of financial statements included in any Incorporated
Document will be prepared, in conformity with generally accepted
accounting principles applied on a consistent basis throughout
the periods involved except as otherwise stated therein.
(p) Since the end of its latest fiscal year, the Company has
timely filed all documents and amendments to previously filed
documents required to be filed by it pursuant to Sections 12, 13,
14 and 15(d) of the Exchange Act. The documents incorporated by
reference into each Preliminary Prospectus and the Prospectus as
of the respective dates of filing with the Commission were, and
each Incorporated Document will be, prepared by the Company in
conformity in all material respects with the requirements of the
Exchange Act and the Rules and Regulations, and such documents
have been timely filed, or in the case of Incorporated Documents
will be timely filed, as required thereby. True copies of each
of the documents incorporated by reference into each Preliminary
Prospectus and the Prospectus have been, and Incorporated
Documents will be, promptly delivered by the Company to the
Representative.
(q) There are no contracts or other documents that are
required to be filed as exhibits to the Registration Statement by
the Act or by the Rules and Regulations or which were required to
be filed as exhibits to any document incorporated by reference in
any Preliminary Prospectus or the Prospectus by the Exchange Act
or the Rules and Regulations which have not been filed as
exhibits to the Registration Statement, or incorporated therein
by reference as permitted by the Rules and Regulations, or that
are required to be summarized in the Prospectus that are not so
summarized.
(r) No person has the right to require the Company to register
any securities for offering and sale under the Act by reason of
filing of the Registration Statement with the Commission or the
issue and sale of the Securities by the Company.
(s) The Company has not taken and will not take, directly or
indirectly, any action which is designed to cause or result in,
or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the
shares of its _____________ Stock to facilitate the sale or
resale of the Securities.
2. On the basis of the representations and warranties
contained in, and subject to the terms and conditions of, this
Agreement, the Company agrees to sell to each of the
Underwriters, severally and not jointly, and each of the
Underwriters, severally and not jointly, agrees to purchase the
number of shares of the Firm Securities set forth opposite that
Underwriter's name in Schedule I hereto.
In addition, the Company grants to the Underwriters, solely for
the purpose of covering overallotments in the sale of shares of
Firm Securities, an option to purchase all or any portion of the
Option Securities, exercisable as provided in Paragraph 4 hereof.
Such Option Securities shall be purchased severally for the
account of each Underwriter in proportion to the number of shares
of Firm Securities set forth opposite the name of such
Underwriter in Schedule I hereto. The respective purchase
obligations of each Underwriter with respect to the Option
Securities shall be adjusted by the Representative so that no
Underwriter shall be obligated to purchase Option Securities
other than in 100-share multiples. The price to the Underwriters
of both the Firm Securities and any Option Securities shall be
$_______ per share.
3. The Company shall not be obligated to deliver any
Securities except upon payment for all the Securities to be
purchased hereunder or as hereinafter provided.
If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Securities that
the defaulting Underwriter agreed but failed to purchase in the
respective proportions that the number of shares of the Firm
Securities set opposite the name of each remaining non-defaulting
Underwriter in Schedule I hereto bears to the aggregate number of
shares of the Firm Securities set opposite the names of all the
remaining non-defaulting Underwriters in Schedule I hereto;
provided, however, that the remaining non-defaulting Underwriters
shall not be obligated to purchase any Securities if the number
of shares of the Securities that the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds _______% of
the aggregate number of shares of the Firm Securities (plus the
total number of shares of Option Securities, if any, purchasable
pursuant to the terms of Paragraph 2), and any remaining non-
defaulting Underwriter shall not be obligated to purchase more
than 110% of the number of shares of the Firm Securities set
opposite its name in Schedule I hereto (plus the total number of
shares of Option Securities, if any, purchasable pursuant to the
terms of Paragraph 2). If the foregoing maximums are exceeded,
the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representative who so agree,
shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all of the
Securities; if the remaining Underwriters or other underwriters
satisfactory to the Representative do not elect to purchase the
Securities that the defaulting Underwriter or Underwriters agreed
but failed to purchase, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for
the payment of expenses as set forth in Paragraph 5(j) hereof.
Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated to agree to
purchase the Securities that were to be purchased by a defaulting
or withdrawing Underwriter, either the Representative or the
Company may postpone the Delivery Date (as hereinafter defined)
for up to seven full business days in order to effect any changes
in the Registration Statement, the Prospectus or in any other
document or arrangement that, in the opinion of counsel to the
Company or counsel to the Underwriters, may be necessary.
4. Delivery of the Firm Securities shall be made at the
offices of ______________________________________________________
_____________________________, at [time] , [city]
time, on the fifth business day following the date of this
Agreement or at such place or later date and time as shall be
determined by agreement between the Representative and the
Company. This date and time are sometimes referred to as the
"First Delivery Date." On the First Delivery Date the Company
shall deliver the Firm Securities to the Representative for the
account of each Underwriter against payment to or upon the order
of the Company of the purchase price by [wire transfer of federal
(same-day) funds] [certified or official bank check or checks
payable in New York Closing House funds]. Time shall be of the
essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligation of each
Underwriter hereunder (subject to the timely delivery by the
Representative of the request referred to in the following
sentence). Upon delivery the Firm Securities shall be in such
denominations and registered in such names as the Representative
shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting
the checking and packaging of the Firm Securities, the Company
shall make the certificates therefor available for inspection by
the Representative in New York, New York, not later than
[time] on the business day prior to the Delivery Date.
At any time on or prior to the thirtieth day after the date of
the Prospectus, the option granted in Paragraph 2 hereof may be
exercised by written notice given to the Company by the
Representative. Such notice shall set forth the number of shares
of Option Securities to be purchased from the Company as to which
the option is being exercised, the names in which the shares of
Option Securities are to be registered, the denominations in
which the shares of Option Securities are to be issued and the
date and time, as determined by the Representative, when the
shares of Option Securities are to be delivered (the "Second
Delivery Date"); provided, however, that the Second Delivery Date
shall not be earlier than the First Delivery Date nor earlier
than the second business day after the date on which the option
shall have been exercised nor later than the tenth business day
after the date on which the option shall have been exercised.
Delivery of the Option Securities shall be made at the offices
of ______________________________________________________
_________________________________________________________, at
[time] , [city] time, on the Second Delivery Date.
On the Second Delivery Date, the Company shall deliver the number
of shares of Option Securities set forth in the above-mentioned
written notice to the Representative for the account of each
Underwriter against payment to or upon the order of the Company
of the respective purchase price by [wire transfer of federal
(same-day) funds] [certified or official bank check or checks
payable in New York Clearing House funds]. Time shall be of the
essence, and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Option Securities
shall be in such denominations and registered in such names as
the Representative shall request in the aforesaid written notice.
For the purpose of expediting the checking and packaging of the
Option Securities, the Company shall make the certificates
therefor available for inspection by the Representative in New
York, New York, not later than [time] , on the business day
prior to the Second Delivery Date.
All certificates, opinions and documents required to be
delivered, and payment hereunder, shall be delivered and paid on
the Delivery Date specified at the offices of ___________________
________________________________________________________, counsel
to the Company, [address] .
5. The Company agrees:
(a) To furnish promptly to the Representative and to counsel
to the Underwriters a signed copy of the Registration Statement
as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all documents
incorporated therein by reference and Incorporated Documents and
all consents and exhibits filed therewith;
(b) To deliver promptly to the Representative such number of
conformed copies of the Registration Statement as originally
filed and each amendment thereto and such number of each
Preliminary Prospectus, the Prospectus, any amended or
supplemented Prospectus, documents incorporated by reference in
any of the foregoing documents and any Incorporated Documents, as
the Representative may reasonably request;
(c) To file with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may be, in the judgment of the Representative,
required by the Act or requested by the Commission and approved
by the Representative;
(d) Prior to filing with the Commission any Preliminary
Prospectus, amendment to the Registration Statement or supplement
to the Prospectus, any Prospectus pursuant to Rule 424 of the
Rules and Regulations or any Incorporated Document, to furnish a
copy thereof to the Representative and counsel to the
Underwriters and obtain the consent of the Representative to the
filing;
(e) To comply with all requirements imposed by the Act
necessary for the distribution of the Securities as contemplated
by the provisions hereof and by the Prospectus and to make the
requisite filings with the Commission pursuant to Rule 430A and
to advise the Representative immediately (i) of such filings or
when any post-effective amendment thereto becomes effective, (ii)
of any request by the Commission for an amendment to the
Registration Statement, a supplement to the Prospectus, an
amendment to any documents incorporated by reference in the
Prospectus, any Incorporated Document or any amendment thereto or
for any additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to any document
incorporated by reference in the Prospectus or any Incorporated
Document, or of the initiation or threat of any stop-order
proceeding or of any challenge to the accuracy or adequacy of any
document incorporated by reference in the Prospectus or any
Incorporated Document, (iv) of receipt by the Company of any
notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation
or threat of any proceeding for that purpose, and (v) of the
happening of any event prior to the termination of the offering
of the Securities that makes untrue any statement of a material
fact made in the Registration Statement or the Prospectus or that
may require the making of a change in the Registration Statement
or the Prospectus in order to make any material statement therein
not misleading;
(f) If the Commission shall issue a stop order suspending the
effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting of that order at the
earliest possible time;
(g) As soon as practicable after the effective date of the
Registration Statement, to make generally available to its
security holders and to deliver to the Representative an earnings
statement, conforming with the requirements of Section 11(a) of
the Act, covering a period of at least twelve months beginning
after the effective date of the Registration Statement;
(h) For a period of three years after the effective date of
the Registration Statement, to furnish to the Representative
copies of all public reports and all reports and financial
statements furnished by the Company to the New York Stock
Exchange, Inc., pursuant to requirements of or agreements with
such Exchange or to the Commission pursuant to the Exchange Act
or any Rule or Regulation, and to furnish from time to time such
other information concerning the Company as the Representative
may reasonably request;
(i) To take or cause to be taken all necessary action and
furnish to whomever the Representative may direct such
information as may be required in qualifying the Securities for
sale under the laws of such jurisdictions which the
Representative shall designate; provided, however, that in no
event shall the Company be obligated to qualify as a foreign
corporation, or to execute a general consent for service of
process, in any jurisdiction in which it is not now so qualified.
In each jurisdiction where any of the Securities shall have been
qualified as above provided, the Company will file such reports
and statements as may be required to continue such qualification
for a period of not less than one year from the effective date of
the Registration Statement;
(j) To pay (i) the costs incident to, and any taxes payable in
connection with, the authorization, issuance, sale and delivery
of the Securities, (ii) the costs incident to the preparation,
printing and filing under the Act of the Registration Statement,
any Preliminary Prospectus and the Prospectus and any amendments
and exhibits thereto, (iii) any costs incident to the
preparation, printing and filing of any document and any
amendments and exhibits thereto required to be filed by the
Company under the Exchange Act, (iv) the costs of distributing
the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereto (including
exhibits), any Preliminary Prospectus, the Prospectus, any
amendment or supplement to the Prospectus, any documents
incorporated by reference in any of the foregoing documents and
any Incorporated Documents, as provided in this Agreement, (v)
the costs of printing and distributing the Agreement Among
Underwriters, this Agreement, the Selected Dealer Agreement, and
the Underwriters' Questionnaire and Power of Attorney, (vi) any
costs of filings with the National Association of Securities
Dealers, Inc. or any costs of listing the Securities on any
securities exchange, (vii) any fees and expenses of qualifying
the Securities under the securities laws of the several
jurisdictions as provided in this paragraph and of preparing,
printing and distributing a Blue Sky Memorandum, including fees
and expenses of counsel to the Underwriters in connection
therewith, and (viii) all other costs and expenses incident to
the performance of the Company's obligations under this
Agreement; provided, however, that except as provided in this
Paragraph and in Paragraph 9, the Underwriters shall pay their
own costs and expenses, including the fees and expenses of their
counsel, any transfer taxes on the Securities that they may sell,
and the expenses of advertising made by the Underwriters in
connection with any offering of the Securities;
[If the Prospectus Supplement indicates ______________
Stock shall be listed, include the following:]
(k) To apply for the listing of the Securities on the New York
Stock Exchange and to use its best efforts to accomplish such
listing upon official notice of issuance;]
(l) Until the termination of the offering of the Securities,
to timely file all documents, and any amendments to previously
filed documents, required to be filed by it pursuant to Sections
12, 13, 14 or 15(d) of the Exchange Act;
(m) The Company will not, during the 90 days following the
effective date of this Agreement, except with your prior written
consent, announce an offer for sale, make an offer for sale, sell
or otherwise dispose of any shares of ______________ Stock or any
securities convertible into shares of _______________ Stock
(except for sales or awards of ________________ Stock pursuant to
employee benefit plans which currently exist on the date hereof
or may in the future be approved by the board of directors and
shareholders of the Company, and the Company's dividend
reinvestment plan) [of the Company which have been substantially
similar to the terms of the Securities, without the consent of
the Representative], or sell or grant options, rights or warrants
with respect to any shares of ________________ Stock (other than
sales or awards of ________________ Stock pursuant to employee
benefit plans existing on the date hereof and the issuance of
shares of ________________ Stock pursuant to existing grants or
options), otherwise than in accordance with this Agreement or as
contemplated in the Prospectus; and
(n) The Company will not take, directly or indirectly, any
action which is designed to cause or result in, or which might
reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of its _______________
Stock to facilitate the sale or resale of the Securities.
6. (a) The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Act from and against any losses,
claims, damages or liabilities, joint or several (and any actions
in respect thereof), to which that Underwriter or controlling
person may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (and actions in
respect thereof) arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, any Incorporated Document or the
Registration Statement or Prospectus as amended or supplemented,
or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and shall reimburse each Underwriter and each such
controlling person promptly upon demand for any legal and other
expenses reasonably incurred by that Underwriter or controlling
person in investigating, defending or preparing to defend against
any such loss, claim, damage, liability or action; provided,
however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, any untrue statement or alleged
untrue statement or omission or alleged omission made in any
Preliminary Prospectus or in the Registration Statement or the
Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information regarding such
Underwriter or the arrangements with respect to the underwriting
of the transactions contemplated hereby furnished to the Company
through the Representative by or on behalf of that Underwriter
specifically for inclusion therein; and provided, further, that,
as to any Preliminary Prospectus or any preliminary prospectus
supplement, the indemnity agreement contained in this
subparagraph (a) shall not inure to the benefit of any
Underwriter (or any person controlling any such Underwriter) on
account of any loss, claim, damage or liability arising from the
sale of Securities by such Underwriter to any person if such
Underwriter failed to send or give a copy of the Prospectus in
which such untrue statement or omission of a material fact was
corrected to such person within the time required by the Act,
unless such failure is the result of noncompliance by the Company
with subparagraph 5(b) or 5(d) hereof. For purposes of the
second proviso to the immediately preceding sentence, under no
circumstances shall any Underwriter be obligated to give any
document incorporated by reference, or any supplement or
amendment to any document incorporated by reference, in a
Preliminary Prospectus or the Prospectus (or any Incorporated
Document) to any person. The foregoing indemnity agreement is in
addition to any liability that the Company may otherwise have to
any Underwriter or any controlling person of that Underwriter.
(b) Each Underwriter severally, but not jointly, shall
indemnify and hold harmless the Company, each of its directors,
each of its officers who signed the Registration Statement and
any person who controls the Company within the meaning of the Act
from and against any losses, claims, damages or liabilities,
joint or several (and any actions in respect thereof), to which
the Company or any such director, officer or controlling person
may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the
Prospectus or the Registration Statement or Prospectus as amended
or supplemented, or arise out of, or are based upon, the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information regarding such Underwriter or the arrangements with
respect to the underwriting of the transactions contemplated
hereby furnished to the Company through the Representative by or
on behalf of that Underwriter specifically for inclusion therein,
and shall reimburse promptly upon demand any legal and other
expenses reasonably incurred by the Company or any such director,
officer or controlling person in investigating, defending or
preparing to defend against any such loss, claim, damage,
liability or action. The foregoing indemnity agreement is in
addition to any liability that any Underwriter may otherwise have
to the Company or any of its directors, officers or controlling
persons.
(c) Promptly after receipt by an indemnified party under this
Paragraph 6 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Paragraph, notify the indemnifying party in writing of the claim
or the commencement of the action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party
otherwise than under this Paragraph. If any such claim or action
is brought against an indemnified party, and it notifies the
indemnifying party thereof, the indemnifying party shall be
entitled to participate therein, and, to the extent that it
wishes, jointly with any other indemnifying party similarly
notified, to assume the defense thereof with counsel satisfactory
to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the
defense of such claim or action, and approval of counsel by the
indemnified party in accordance with the foregoing, the
indemnifying party shall not be liable to the indemnified party
under this Paragraph for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided,
however, that the Representative shall have the right to employ
counsel to represent the Representative and those Underwriters
and their respective controlling persons who may be subject to
liability arising out of any claim in respect of which indemnity
may be sought by the Underwriters against the Company under this
Paragraph if the defendants with respect to any such claim
include some or all of the Underwriters in addition to the
Company, and the Representative shall have reasonably concluded
that there may be legal defenses available to it and/or other
Underwriters which are different from or additional to those
available to the Company or that there exists some conflict of
interest between the interest of the Underwriters and the Company
with respect to such claim that makes separate representation
desirable in the reasonable judgment of the Representative, and
in the event of the foregoing the reasonable fees and expenses of
such separate counsel shall be paid by the Company. It is
understood, however, in connection with the Company's undertaking
in the preceding proviso, that the Company shall not be liable
for the expenses of more than one separate counsel representing
the Representative or the other Underwriters or their respective
controlling persons who are parties to the claim referred to in
such proviso.
(d) If the indemnification provided for in this Paragraph
shall for any reason be unavailable to an indemnified party under
Paragraph 6(a) or 6(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other
from the offering of the Securities, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and the
Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering
of the Securities (before deducting expenses) received by the
Company bear to the total underwriting discounts and commissions
received by the Underwriters with respect to such offering, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material
fact or omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Paragraph 6(d)
were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof,
referred to above in this Paragraph, shall be deemed to include,
for purposes of this Paragraph, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Paragraph, no Underwriter
shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason
of the untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Paragraph are several in
proportion to their respective underwriting obligations and not
joint.
[Insert appropriate language referencing these sections of the
Prospectus Supplement that have been provided by the
Underwriters.
[(e) The Underwriters severally confirm that the statements
contained in the last paragraphs on the front cover page of the
Prospectus and under the caption "Underwriting" in the Prospectus
are correct and the Company agrees that such statements
constitute the only information furnished in writing to the
Company by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Prospectus.]
(f) The indemnity agreements contained in this Paragraph and
the representations, warranties and agreements of the Company and
the Underwriters contained in this Agreement shall survive the
delivery of and payment for the Securities and shall remain in
full force and effect, regardless of any termination or
cancellation of this Agreement and any investigation made by or
on behalf of any indemnified party.
7. (a) This Agreement shall become effective at [time]
, [city] time, on the first full business day following
the date hereof, or at such earlier time after the Registration
Statement becomes effective as the Representative shall first
release the Firm Securities for sale to the public. The
Representative shall notify the Company immediately after it has
taken any action that causes this Agreement to become effective.
Until this Agreement is effective, it may be terminated by the
Company by notice to the Representative or by the Representative
by notice to the Company. For purposes of this Agreement, the
release of the Firm Securities for sale to the public shall be
deemed to have been made when the Representative releases, by
telegram or otherwise, firm offers of the Firm Securities to
securities dealers or release for publication a newspaper
advertisement relating to the Firm Securities, whichever occurs
first.
(b) The obligations of the Underwriters hereunder may be
terminated by the Representative, in its absolute discretion, by
notice given to and received by the Company prior to delivery of
and payment for the Securities, if prior to that time (i) the
Company shall have failed, refused or been unable, at or prior to
the First Closing Date, to perform any agreement on its part to
be performed hereunder, (ii) any other condition of the
Underwriters' obligation hereunder is not fulfilled, (iii)
trading in securities generally on the New York Stock Exchange is
suspended, or minimum prices are established on that Exchange,
(iv) a banking moratorium is declared by Federal or New York or
Illinois State authorities, (v) there shall have been such a
material adverse change in general economic, political or
financial conditions or in the financial markets in the United
States such that, in the judgment of [the Representative] [a
majority in interest of the several Underwriters], it would be
inadvisable or impracticable to proceed with the public offering
of the Securities or the delivery of the Securities on the terms
and in the manner contemplated by the Prospectus, or (vi) the
United States becomes engaged in major armed hostilities or there
is an escalation in such hostilities involving the United States
or there is a declaration of a national emergency or war by the
United States.
8. The respective obligations of the Underwriters hereunder
are subject, in their discretion, to the accuracy, when made and
on the First Delivery Date and Second Delivery Date, if any, of
the representations and warranties of the Company contained
herein, to performance by the Company of its obligations
hereunder, and to each of the following terms and conditions:
(a) The Prospectus shall have been filed with the Commission
in a timely fashion in accordance with Paragraph 5(e) hereof, all
post-effective amendments to the Registration Statement shall
have become effective, and all filings required by Rule 424 of
the Rules and Regulations shall have been made. At or before the
First Delivery Date and the Second Delivery Date, if any, no stop
order suspending such effectiveness, nor any order directed to
any document incorporated by reference in the Prospectus or any
Incorporated Document, shall have been issued, and prior to that
time no stop-order proceeding shall have been initiated or
threatened by the Commission and no challenge shall have been
made by the Commission to the accuracy or adequacy of any
document incorporated by reference in the Prospectus or any
Incorporated Document. Any request of the Commission for
inclusion of additional information in the Registration Statement
or the Prospectus or otherwise shall have been complied with or
adequately disposed of following discussions with the
Commission's staff, and the Company shall not have filed with the
Commission the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus or any Incorporated
Document without complying with Paragraph 5(d) hereof.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the First Delivery Date or the Second
Delivery Date, if any, that the Registration Statement, the
Prospectus, any Incorporated Document or any amendment or
supplement thereto contains an untrue statement of a fact that,
in the opinion of Mayer, Brown & Platt, counsel to the
Underwriters, is material or omits to state a fact that, in the
opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement and the
Securities and to the form of the Registration Statement, the
Prospectus and any Incorporated Document, other than financial
statements and other financial data, and all other legal matters
relating to this Agreement and such other documents and the
transactions contemplated hereby and thereby shall be
satisfactory in all respects to Mayer, Brown & Platt, counsel to
the Underwriters, and the Company shall have furnished to such
counsel all documents and information that such counsel may
reasonably request to enable them to pass upon such matters.
(d) The Company shall have furnished to the Representative on
the First Delivery Date and the Second Delivery Date, if any, a
certificate, dated such Delivery Date, of its President and its
Executive Vice President-Finance and Chief Financial Officer,
certifying that:
(i) There are no legal or governmental administrative or
other proceedings pending or threatened against the Company or
its subsidiaries of a character required to be disclosed in the
Prospectus which are not disclosed therein;
(ii) The representations and warranties of the Company
contained herein are true and correct as of the First Delivery
Date and the Second Delivery Date, if any; that the Company has
complied with all of its agreements herein contained; and that
the conditions set forth in subparagraphs (a), (d), (e), (f),
(g), (h), (i), (j) and (l) of this Paragraph 8 have been
fulfilled;
(iii) Since the date of the latest audited financial
statements of the Company included in the Prospectus, there have
been no material transactions not in the ordinary course of
business entered into by the Company or its subsidiaries not
reflected in the Registration Statement or Prospectus and since
the date of the latest audited financial statements of the
Company included in the Prospectus, there have been no material
adverse changes in the financial condition of the Company and its
subsidiaries taken as a whole or in their consolidated financial
position or net assets as shown in the Registration Statement and
Prospectus other than as referred to or contemplated in the
Registration Statement and the Prospectus; and
(iv) They have carefully examined the Registration Statement,
the Prospectus and the documents incorporated therein and (A) as
of the effective date of the Registration Statement, the
Registration Statement, the Prospectus and such incorporated
documents did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and (B) since the effective date of the Registration
Statement, no event has occurred that should have been set forth
in a supplement to or an amendment of the Prospectus or in an
Incorporated Document that has not been set forth in such a
supplement or amendment or in an Incorporated Document;
(e) At the First Delivery Date and the Second Delivery Date,
if any, and since the respective dates as of which information is
given in the Prospectus, neither the Company nor any subsidiary
thereof shall have sustained any loss on account of fire, flood,
accident or other calamity (i) of such a character as to
interfere materially with the continuous operation of the
business of the Company and (ii) in the judgment of the
Representative, materially adversely affects the Company and its
subsidiaries taken as a whole, regardless of whether or not such
loss shall have been insured;
(f) The Company shall have furnished to the Representative on
the date of this Agreement and the First Delivery Date and the
Second Delivery Date, if any, letters of Arthur Andersen & Co.,
addressed to the Underwriters and dated such Delivery Date,
confirming that they are independent public accounts within the
meaning of the Act and are in compliance with the applicable
requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, and stating, as of
the date of such letter (or, with respect to matters involving
changes or developments since the respective dates of which
specified financial information is given in the Prospectus, as of
a date not more than five days prior to the date of such letter),
the conclusions and findings of such accountants with respect to
the financial information and other matters covered by their
letter delivered to the Representative concurrently with the
execution of this Agreement and confirming in all material
respects the conclusions and findings set forth in such prior
letter;
(g) Since the respective dates of which information is given
in the Prospectus there has not been any material change in the
capital stock of the Company or any material increase in the
indebtedness for money borrowed of the Company or any material
adverse change in, or any development which is materially
adversely affecting, the financial position, results of
operations or prospects of the Company, except in all cases for
changes or developments which the Prospectus discloses or
contemplates;
(h) Subsequent to the date hereof (i) no downgrading shall
have occurred in the rating accorded any of the Company's debt
securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have announced that it proposes to withdraw or
has under surveillance or review with negative implications its
rating of any of the Company's debt securities;
(i) On the First Delivery Date and the Second Delivery Date,
if any, the General Counsel of the Company shall have furnished
to the Representative their opinion, addressed to the
Underwriters and dated such Delivery Date, to the effect that:
(i) Each of the Company, Chicago Bridge & Iron Company
("Chicago Bridge") and Liquid Carbonic Industries Corporation
("Liquid Carbonic"), Chicago Bridge and Liquid Carbonic being
wholly owned subsidiaries of the Company, has been duly
incorporated and is validly existing in good standing as a
corporation under the laws of Delaware, Illinois and Delaware,
respectively, and each is duly qualified to do business and in
good standing in each of the other United States jurisdictions
where such qualification is required for the conduct of its
business or ownership of its properties and where the failure to
be so qualified could reasonably be expected to have a material
adverse effect upon the Company and its subsidiaries taken as a
whole;
(ii) The Securities have been duly authorized and, upon
payment therefor as provided herein will be validly issued and
outstanding, fully paid and nonassessable with no personal
liability attaching to the ownership thereof and the holders of
the outstanding shares of the ______________ Stock of the Company
are not entitled to preemptive or other rights to subscribe for
any of the Securities. All of the issued shares of the
______________ Stock of the Company and the Securities conform in
all material respects to the description thereof contained in the
Registration Statement and the Prospectus. The number of
authorized shares of capital stock of the Company is as set forth
in the Prospectus and there has been no material change in the
number of outstanding shares of _______________ Stock from that
set forth in or contemplated by the Prospectus;
[If the Preferred Stock is convertible into common stock, add
the following paragraph and such other opinions as are deemed
necessary or appropriate by the Company and the Representative:
If the Securities are convertible into shares of common stock
in accordance with this Agreement and the Certificate of
Designations, such shares of common stock initially issuable upon
conversion of the Securities have been duly authorized and
reserved for issuance, and when issued upon such conversion,
shall be validly issued, fully paid and non-assessable and not
subject to any preemptive rights.]
(iii) All of the issued shares of ____________ Stock of the
Company, Chicago Bridge and Liquid Carbonic have been duly
authorized, validly issued, and are fully paid and nonassessable.
(iv) The Registration Statement and Prospectus comply as to
form in all material respects with the requirements of the Act
and the Rules and Regulations thereunder, and the documents
incorporated (or deemed to be incorporated) by reference in the
Prospectus and the Incorporated Documents (if any) when filed
with the Commission appear on their face to have been
appropriately responsive to the requirements of the Exchange Act
and the Rules and Regulations, except that no opinion need be
expressed as to the financial statements, schedules and other
financial [and statistical] data contained in any of those
documents;
(v) Such counsel has no reason to believe that the
Registration Statement (except as to the financial statements,
schedules and other financial [or statistical] data contained or
incorporated by reference therein, as to which such counsel need
express no opinion) at the time it became effective or the
Prospectus or any amendments or supplements thereto contain any
untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order
to make the statements made therein, in light of the
circumstances under which they were made, not misleading;
(vi) The Registration Statement has become effective under
the Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for such purpose have been
instituted or are pending or threatened;
(vii) To the best of such counsel's knowledge, neither the
Company nor any of its subsidiaries has any litigation or
governmental, administrative or other proceeding, pending or
threatened, which are not disclosed in the Prospectus and which
are of a character that ought to be disclosed in the Prospectus;
(viii) To the best of such counsel's knowledge, there are no
contracts to which the Company or any of its subsidiaries is a
party which are required to be filed as exhibits to the
Registration Statement and are not so filed or required to be
summarized therein and are not so summarized;
(ix) The statements made in the Prospectus under the caption
"Description of Capital Stock," insofar as they purport to
summarize the provisions of documents or agreements specifically
referred to therein, fairly present the information called for
with respect thereto by Form S-3;
(x) Neither the Company, Chicago Bridge or Liquid Carbonic is
in violation of its certificate of incorporation or by-laws, or,
to the best of such counsel's knowledge, in default under any
material agreement, indenture or instrument; and
(xi) This Agreement has been duly authorized, executed and
delivered by the Company; the execution, delivery and performance
of this Agreement will not conflict with, or result in the
creation or imposition of any lien, charge or encumbrance upon
any of the assets of the Company or any of its subsidiaries
(which creation or imposition would have a material adverse
effect on the Company and its subsidiaries taken as a whole)
pursuant to the terms of, or constitute a breach or default
under, any agreement, indenture or instrument known to such
counsel, or result in a material violation of the certificate of
incorporation or by-laws of the Company or any of its
subsidiaries or, to the best of such counsel's knowledge, any
order, rule or regulation of any court or governmental agency
having jurisdiction over the Company, any of its subsidiaries or
their property; and no consent, authorization or order of, or
filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of this
Agreement by the Company, except such as may be required by the
Act, the Exchange Act and state securities laws.
(j) On the First Delivery Date and Second Delivery Date, if
any, the Company shall have furnished to the Representative,
addressed to the Underwriters, such other opinions of counsel as
may reasonably be requested relating to matters arising on or
after the date hereof.
(k) On the First Delivery Date and the Second Delivery Date,
if any, Mayer, Brown & Platt, counsel for the Underwriters, shall
have furnished to the Representative their opinion, addressed to
the Underwriters and dated such Delivery Date, with respect to
the issuance and sale of the Securities, the Registration
Statement, the Prospectus and other related matters as the
Representative may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
[(l) The Securities shall have been approved for listing on
the New York Stock Exchange, subject to official notice of
issuance.]
(m) The Company shall have furnished such additional documents
and certificates as the Representative may reasonably request.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in form
and substance satisfactory to Mayer, Brown & Platt, counsel to
the Underwriters.
9. If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the
Underwriters set forth in Paragraph 8 hereof is not satisfied or
because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any
provision hereof, other than by reason of a default by any of the
Underwriters, the Company will reimburse the Underwriters
severally upon demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed
purchase and sale of the Securities.
10. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement by ________________________
____________________________________________ on behalf of the
Representative and the Underwriters. Any notice by the Company
to the Underwriters shall be sufficient if given in writing or by
telegraph addressed to __________________________________________
_________________________________________________________________
________________________________________________________________,
and any notice by the Underwriters to the Company shall be
sufficient if given in writing or by telegraph addressed to the
Company at 800 Jorie Boulevard, Oak Brook, Illinois 60521-2268,
Attention: George L. Schueppert, Executive Vice President-
Finance and Chief Financial Officer.
11. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company, and their respective
successors. Nothing in this Agreement is intended or shall be
construed to give any person, other than the persons referred to
in the preceding sentence, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision
contained herein, except that (a) the representations,
warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of
the person or persons, if any, who control any Underwriter within
the meaning of Section 15 of the Act, and (b) the indemnity
agreement of the Underwriters contained in Paragraph 6 of this
Agreement shall be deemed to be for the benefit of directors of
the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company.
12. For purposes of this Agreement, (a) "business day" means
any day on which the New York Stock Exchange is open for trading,
and (b) "subsidiary" and "significant subsidiary" have the
meanings set forth in Rule 405 of the Rules and Regulations.
13. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. This
Agreement may be executed in one or more counterparts, and if
executed in more than one counterpart the executed counterparts
shall together constitute a single instrument.
If the foregoing correctly sets forth the agreement among the
Company and the Underwriters, please indicate your acceptance in
the space provided for the purpose below.
Very truly yours,
CBI INDUSTRIES, INC.
By:_____________________________________
ACCEPTED:
_____________________________________________
By:__________________________________________
For itself and as Representative of
the Underwriters
<PAGE>
SCHEDULE I
Number of Shares of
Underwriter Firm Securities
TOTAL
EXHIBIT 4(a)
CBI Industries, Inc.
AND
Chemical Bank, Trustee
____________________
Indenture
Dated as of March 1, 1994
____________________
Debt Securities
<PAGE>
<PAGE>
CBI Industries, Inc.
Reconciliation and tie between Indenture
dated as of March 1, 1994
and
Trust Indenture Act of 1939, as amended
Trust Indenture Act Section Indenture Section
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .709
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .709
(a)(3) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . .709
(b) . . . . . . . . . . . . . . . . . . . . . . . . 708, 710
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . 713(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 713(b)
(b)(2) . . . . . . . . . . . . . . . . . . . .803(a)(3), 803(b)
(c) . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . .801, 802(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 802(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 802(c)
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 803(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 803(b)
(c) . . . . . . . . . . . . . . . . . . . . . 803(a), 803(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 803(c)
314(a) . . . . . . . . . . . . . . . . . . . . . . . .804, 1106
(b) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .102
(c)(3) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .102
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . 701(a)
(b) . . . . . . . . . . . . . . . . . . . . . . .702, 803(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . 701(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . 701(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . .701(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . .701(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . .701(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . .614
316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .612
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . 602, 613
(a)(2) . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . .608
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . .603
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . .604
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1103
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . .107
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE>
<PAGE>
TABLE OF CONTENTS
Parties
Recitals of the Company
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions
Act
Affiliate
Authentication Agent
Authorized Newspaper
Board of Directors
Board Resolution
Business Day
Capitalized Rent
Commission
Company
Company Request and Company Order
Consolidated Current Liabilities
Consolidated Net Tangible Assets
Consolidated Tangible Assets
Corporate Trust Office
corporation
Defaulted Interest
Defeasance
Defeasible Series
Depositary
Event of Default
Funded Debt
Global Security
Holder
Indenture
Interest
Interest Payment Date
Maturity
Officers' Certificate
Opinion of Counsel
Original Issue Discount Security
Outstanding
Paying Agent
Periodic Offering
Person
Place of Payment
Predecessor Security
Principal Property
Redemption Date
Redemption Price
Regular Record Date
Repayment Date
Repayment Price
Responsible Officer
Restricted Subsidiary
Secured Debt
Security Register and Security Registrar
Special Record Date
Stated Maturity
Subsidiary
Trustee
Trust Indenture Act
Unrestricted Subsidiary
U.S. Government Obligations
U.S. Person
Voting Stock
SECTION 102. Compliance Certificates and Opinions
SECTION 103. Form of Documents Delivered to Trustee
SECTION 104. Acts of Holders
SECTION 105. Notices etc., to Trustee and Company
SECTION 106. Notices to Holders; Waiver
SECTION 107. Conflict with Trust Indenture Act
SECTION 108. Effect of Headings and Table of Contents
SECTION 109. Successors and Assigns
SECTION 110. Separability Clause
SECTION 111. Benefits of Indenture
SECTION 112. Governing Law
SECTION 113. Legal Holidays
SECTION 114. Execution in Counterparts
SECTION 115. No Security Interest Created
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally
SECTION 202. Forms of Securities
SECTION 203. Form of Trustee's Certificate of
Authentication
SECTION 204. Form of Legend for Global Securities
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms
SECTION 302. Denominations
SECTION 303. Execution, Authentication, Dating and
Delivery
SECTION 304. Temporary Securities
SECTION 305. Registration, Transfer and Exchange
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities
SECTION 307. Payment of Interest; Interest Rights
Preserved
SECTION 308. Persons Deemed Owners
SECTION 309. Cancellation
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUNDS
SECTION 401. Applicability of Article
SECTION 402. Election to Redeem; Notice to Trustee
SECTION 403. Selection by Trustee of Securities to Be
Redeemed
SECTION 404. Notice of Redemption
SECTION 405. Deposit of Redemption Price
SECTION 406. Securities Payable on Redemption Date
SECTION 407. Securities Redeemed in Part
SECTION 408. Provisions with Respect to any Sinking
Funds
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 501. Satisfaction and Discharge of Indenture
SECTION 502. Application of Trust Money
ARTICLE SIX
REMEDIES
SECTION 601. Events of Default
SECTION 602. Acceleration of Maturity; Rescission and
Annulment
SECTION 603. Collection of Indebtedness and
Suits for Enforcement by Trustee
SECTION 604. Trustee May File Proofs of Claim
SECTION 605. Trustee May Enforce Claims without
Possession of Securities
SECTION 606. Application of Money Collected
SECTION 607. Limitation on Suits
SECTION 608. Unconditional Right of Holders to
Receive Principal, Premium and Interest
SECTION 609. Restoration of Rights and Remedies
SECTION 610. Rights and Remedies Cumulative
SECTION 611. Delay or Omission Not Waiver
SECTION 612. Control by Holders
SECTION 613. Waiver of Past Defaults
SECTION 614. Undertaking for Costs
ARTICLE SEVEN
THE TRUSTEE
SECTION 701. Certain Duties and Responsibilities
SECTION 702. Notice of Defaults
SECTION 703. Certain Rights of Trustee
SECTION 704. Not Responsible for Recitals or Issuance
of Securities
SECTION 705. May Hold Securities
SECTION 706. Money Held in Trust
SECTION 707. Compensation and Reimbursement
SECTION 708. Disqualification; Conflicting Interests
SECTION 709. Trustee Required; Eligibility
SECTION 710. Resignation and Removal; Appointment of
Successor
SECTION 711. Acceptance of Appointment by Successor
SECTION 712. Merger, Conversion, Consolidation or
Succession to Business
SECTION 713. Preferential Collection of Claims
against Company
SECTION 714. Authenticating Agents
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 801. Company to Furnish Trustee
Names and Addresses of Holders
SECTION 802. Preservation of Information;
Communications to Holders
SECTION 803. Reports by Trustee
SECTION 804. Reports by Company
SECTION 805. Reports by Security Registrar
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 901. Company May Consolidate, etc., Only on
Certain Terms
SECTION 902. Successor Corporation Substituted
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 1001. Supplemental Indentures Without Consent
of Holders
SECTION 1002. Supplemental Indentures with Consent of
Holders
SECTION 1003. Execution of Supplemental Indentures
SECTION 1004. Effect of Supplemental Indentures
SECTION 1005. Conformity with Trust Indenture Act
SECTION 1006. Reference in Securities to Supplemental
Indentures
ARTICLE ELEVEN
COVENANTS
SECTION 1101. Payment of Principal, Premium and
Interest
SECTION 1102. Maintenance of Office or Agency
SECTION 1103. Money for Security Payments to be Held
in Trust
SECTION 1104. Limitation on Liens
SECTION 1105. Sale and Leaseback Transactions
SECTION 1106. Annual Statement
SECTION 1107. Waiver of Certain Covenants
ARTICLE TWELVE
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1201. Purposes of Meetings
SECTION 1202. Call of Meetings by Trustee
SECTION 1203. Call of Meetings by Company or Holders
SECTION 1204. Qualifications for Voting
SECTION 1205. Quorum; Adjourned Meetings
SECTION 1206. Regulations
SECTION 1207. Voting Procedure
SECTION 1208. Written Consent in Lieu of Meetings
SECTION 1209. No Delay of Rights by Meeting
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance
SECTION 1302. Defeasance and Discharge
SECTION 1303. Covenant Defeasance
SECTION 1304. Conditions to Defeasance of Covenant
Defeasance
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions
SECTION 1306. Reinstatement
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INDENTURE dated as of March 1, 1994, between CBI INDUSTRIES,
INC., a Delaware corporation (hereinafter called the "Company"),
having an office at 800 Jorie Boulevard, Oak Brook, Illinois
60521, and CHEMICAL BANK, a corporation organized under the laws
of the State of New York, having its Corporate Trust Office at
450 West 33rd Street, 15th Floor, New York, New York 10001, as
trustee (hereinafter called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issue from time to time of its
unsecured debentures, notes, bonds or other evidences of
indebtedness to be issued in one or more series (such debt
securities of the Company, irrespective of designated maturity,
are hereinafter called the "Securities") as in this Indenture
provided, up to such principal amount or amounts as may from time
to time be authorized in or pursuant to one or more resolutions
of the Board of Directors.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase or
acceptance of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate
benefit of the respective Holders from time to time of the
Securities or of any series thereof as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles in the United States of America
and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of
such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms used principally in Article Seven are defined in
that Article.
"Act" when used with respect to any Holder has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person.
For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authentication Agent" means any agent or agents of the Trustee
which at the time shall be appointed and acting pursuant to
Section 714.
"Authorized Newspaper" means a newspaper of general
circulation, in the official language of the country of
publication or in the English language, customarily published on
each Business Day whether or not published on Saturdays, Sundays
or holidays, and of general circulation in the place in
connection with which the term is used or in the financial
community of such place. Whenever successive publications in an
Authorized Newspaper are required hereunder they may be made
(unless otherwise expressly provided herein) on any Business Day
and in the same or different Authorized Newspapers.
"Board of Directors" means either the Board of Directors of the
Company or any duly authorized committee of that Board.
"Board Resolution" means a copy of a resolution certified by
the Chairman of the Board, Vice Chairman of the Board, President,
a Vice President, the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or
in the Securities, means, unless otherwise specified with respect
to any series of Securities pursuant to Section 301, each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment or particular
location are authorized or obligated by law, regulation or
executive order to close.
"Capitalized Rent" means, as calculated by the Company, the
total net amount of rent payable for the remaining term as of the
date of determination thereof under a lease of Principal Property
by the Company or any of its Restricted Subsidiaries, discounted
from the respective due dates thereof to such date at the rate
per annum equal to the weighted average interest rate borne by
the Securities. The weighted average interest rate borne by the
Securities shall be calculated by dividing the aggregate of the
annual interest payments required on the Securities, based on the
amount Outstanding at the latest date any Securities were issued
hereunder, by the aggregate principal amount of the Securities
Outstanding at such date. In the case of an Original Issue
Discount Security, the amount Outstanding shall be deemed to be
the entire principal thereof and the annual interest payments
shall be deemed to be the product obtained by multiplying such
entire principal amount by the rate of interest payable on
overdue principal. The total net amount of rent payable under
any such lease for any period shall be the total amount of the
rent payable by the lessee with respect to such period but shall
not include amounts required to be paid on account of maintenance
and repairs, insurance, taxes, assessments, water rates, sewer
rents and similar charges and contingent rents such as those
based on sales. The remaining term under any lease shall be
calculated without giving effect to any unexercised option of the
lessee for the renewal or extension of any term. In the case of
any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid
under such lease subsequent to the first date upon which it may
be so terminated.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities
Exchange Act of 1934, or, if at any time after the execution of
this instrument such Commission is not existing and performing
the duties now assigned to it, then the body performing such
duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture unless and until a successor
corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation or any such successor to such a
successor.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its
Chairman of the Board, Vice Chairman of the Board, President or a
Vice President and by another Vice President, its Treasurer, its
Secretary, an Assistant Secretary or an Assistant Treasurer, and
delivered to the Trustee.
"Consolidated Current Liabilities" means the aggregate of the
current liabilities of the Company and its Restricted
Subsidiaries (excluding liabilities of Unrestricted Subsidiaries)
appearing on the most recent available consolidated balance sheet
of the Company and its Restricted Subsidiaries, all in accordance
with generally accepted accounting principles; provided, however,
that in no event shall Consolidated Current Liabilities include
any obligation of the Company and its Restricted Subsidiaries
issued under a revolving credit or similar agreement if the
obligation issued under such agreement matures by its terms
within 12 months from the date thereof but by the terms of such
agreement such obligation may be renewed or extended or the
amount thereof reborrowed or refunded at the option of the
Company or any Restricted Subsidiary for a term in excess of 12
months from the date of determination.
"Consolidated Net Tangible Assets" means Consolidated Tangible
Assets after deduction of Consolidated Current Liabilities.
"Consolidated Tangible Assets" means the aggregate of all
assets of the Company and its Restricted Subsidiaries (including
the value of all existing Sale and Leaseback Transactions (as
defined in Section 1105) and any assets resulting from the
capitalization of other long-term lease obligations in accordance
with generally accepted accounting principles but excluding the
value of assets or investment in any Unrestricted Subsidiary or
any non-majority-owned subsidiary) appearing on the most recent
available consolidated balance sheet of the Company and its
Restricted Subsidiaries at their net book values, after deducting
related depreciation, amortization and other valuation reserves
and excluding (a) any capital write-ups resulting from
reappraisals of assets or of other investments after March 1,
1994 (other than a write-up of any assets constituting part of
the assets and business of another corporation made in connection
with the acquisition, direct or indirect, of the assets and
business of such other corporation) except as permitted in
accordance with generally accepted accounting principles, (b)
treasury stock, (c) patent and trademark rights, good will,
unamortized discounts and expenses and any other intangible
items, all in accordance with generally accepted accounting
principles.
"Corporate Trust Office" means an office of the Trustee at
which at any particular time its corporate trust business shall
be administered, which office at the date of execution and
delivery of this Indenture is located at 450 West 33rd Street,
15th Floor, New York, New York 10001, Attn: Corporate Trust
Administration, Telephone 212-971-3347, Telecopy 212-613-7682, or
such other address as the Trustee may notify the Company and the
Holders from time to time.
"corporation" includes any corporation, limited liability
company, association, company, joint-stock company or business
trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Defeasible Series" has the meaning specified in Section 1301.
"Depositary" means, with respect to Securities of any series
issuable in whole or in part in the form of one or more Global
Securities, a clearing agency registered under the Securities
Exchange Act of 1934, as amended, that is designated to act as
Depositary for such Securities as contemplated by Section 301.
"Dollar or $" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time
shall be legal tender for the payment of public and private
debts.
"Event of Default" has the meaning specified in Section 601.
"Funded Debt" means all indebtedness for money borrowed having
a maturity of more than twelve months from the date of the most
recent consolidated balance sheet of the Company and its
Restricted Subsidiaries (excluding indebtedness of Unrestricted
Subsidiaries) or renewable and extendible beyond twelve months at
the option of the borrower and all obligations in respect of
lease rentals which under generally accepted accounting
principles would be shown on a consolidated balance sheet of the
Company as a liability item other than a current liability;
provided, however, that Funded Debt shall not include any of the
foregoing to the extent that such indebtedness or obligations are
not required by generally accepted accounting principles to be
shown on the balance sheet of the Company.
"Global Security" means a Security that evidences all or part
of the Securities of any series and is authenticated and
delivered to, and registered in the name of, the Depositary for
such Securities or a nominee thereof.
"Holder" means any Person in whose name a Security of any
series is registered in the Security Register applicable to
Securities of such series.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof. The term "Indenture" shall also
include the terms of particular series of Securities established
as contemplated by Section 301.
"Indexed Security" means a Security the terms of which provide
that the principal amount thereof payable at Stated Maturity may
be more or less than the principal face amount thereof at
original issuance.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after
maturity, means interest payable after maturity.
"Interest Payment Date", when used with respect to any series
of Securities, means the Stated Maturity of an installment of
interest on such Securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and
payable as therein or herein provided, whether on a Repayment
Date, at the Stated Maturity or by declaration of acceleration,
call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, Vice Chairman of the Board, President or a
Vice President and by another Vice President, the Treasurer, the
Secretary, or an Assistant Treasurer or Assistant Secretary of
the Company, and delivered to the Trustee. Each such certificate
shall contain the statements set forth in Section 102 if and to
the extent required by the provisions of such Section.
"Opinion of Counsel" means a written opinion of counsel, who
may be an employee of or counsel to the Company or who may be
other counsel satisfactory to the Trustee. Each such opinion
shall contain the statements set forth in Section 102 if and to
the extent required by the provisions of such Section.
"Original Issue Discount Security" means any Security which by
its terms provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
of the Maturity thereof.
"Outstanding", when used with respect to Securities or
Securities of any series, means, as of the date of determination,
all such Securities theretofore authenticated and delivered under
this Indenture, except:
(i) such Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided, however, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities as to which Defeasance has been effected
pursuant to Section 1302; and
(iv) such Securities in exchange for or in lieu of which
other such Securities have been authenticated and delivered
pursuant to this Indenture, or such Securities which have been
paid, pursuant to this Indenture, unless proof satisfactory to
the Trustee is presented that any such Securities are held by
Persons in whose hands any of such Securities are a legal, valid
and binding obligation of the Company;
provided, however, that in determining whether the Holders of the
requisite principal amount of such Outstanding Securities have
given any request, demand, authorization, direction, notice,
consent or waiver hereunder or are present at a meeting of
Holders of Securities for quorum purposes, (A) the principal
amount of an Original Issue Discount Security that shall be
deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant
to Section 602, (B) the principal amount of any Indexed Security
that shall be deemed to be Outstanding shall be the principal
face amount of such Indexed Security at original issuance unless
otherwise provided with respect to such Security pursuant to
Section 301, and (C) such Securities owned by the Company or such
other obligor upon such Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not
to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
such Securities which the Trustee knows to be so owned shall be
so disregarded. Such Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Securities and that the
pledgee is not the Company or any other such obligor upon such
Securities or any Affiliate of the Company or such other obligor.
Upon request of the Trustee, the Company shall furnish to the
Trustee promptly an Officers' Certificate listing and identifying
all such Securities, if any, known by the Company to be owned or
held by or for the account of any of the above-described Persons;
and, subject to the provisions of Section 701, the Trustee shall
be entitled to accept and rely upon such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the
fact that all such Securities not listed therein are Outstanding
for the purpose of any such determination.
"Paying Agent" means any Person authorized by the Company to
pay the principal of, premium, if any, or interest on any
Securities on behalf of the Company.
"Periodic Offering" means an offering of Securities of a series
from time to time the specific terms of which Securities,
including, without limitation, the rate or rates of interest or
formula for determining the rate or rates of interest thereon, if
any, the Stated Maturity or Stated Maturities thereof, the
original issue date or dates thereof, the redemption provisions,
if any, with respect thereto, and any other terms specified as
contemplated by Section 301 with respect thereto, are to be
determined by the Company upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of
any series, means the place or places where the principal of (and
premium, if any) and interest on the Securities of that series
are payable as specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security, and for the purposes
of this definition, any Security authenticated and delivered
under Section 306 in lieu of a mutilated, lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
mutilated, lost, destroyed or stolen Security.
"Principal Property" means any manufacturing plant or other
facility of the Company or any Restricted Subsidiary, whether now
owned or hereafter acquired, which, in the opinion of the Board
of Directors, is of material importance to the business conducted
by the Company and its Restricted Subsidiaries as a whole.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price specified in such Security at which
it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Security
on any Interest Payment Date means the date, if any, specified in
such Security as the "Regular Record Date".
"Repayment Date", when used with respect to any Security to be
repaid, means the date fixed for such repayment pursuant to such
Security.
"Repayment Price", when used with respect to any Security to be
repaid, means the price at which it is to be repaid pursuant to
such Security.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of
directors, the chairman or any vice-chairman of the executive
committee of the board of directors, the president, any vice
president or assistant vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or any
assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the
above designated officers and also means, with respect to any
particular corporate trust matter, any other officer to whom such
matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary and (b) any Subsidiary which was an
Unrestricted Subsidiary but which, subsequent to March 1, 1994,
is designated by the Company (by or pursuant to Board Resolution)
to be a Restricted Subsidiary, provided, however, that the
Company may not designate any such Subsidiary to be a Restricted
Subsidiary if the Company would thereby breach any covenant or
agreement herein contained (on the assumptions that any
outstanding Secured Debt of such Subsidiary was incurred at the
time of such designation and that any Sale and Leaseback
Transaction (as defined in Section 1105) to which such Subsidiary
is then a party was entered into at the time of such
designation).
"Secured Debt" means indebtedness for money borrowed and any
Funded Debt which is secured by a mortgage, pledge, lien,
security interest or encumbrance on (a) any Principal Property of
the Company or a Restricted Subsidiary or on (b) any shares of
capital stock or indebtedness of any Restricted Subsidiary.
"Security Register" and "Security Registrar" have the meanings
specified in Sections 305 and 1102, respectively.
"Special Record Date" for the payment of any Defaulted Interest
(as defined in Section 307) means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon, means the date specified in such
Security as the fixed date on which the principal of such
Security, or such installment of interest is due and payable.
"Subsidiary" means any corporation a majority of the Voting
Stock of which is at the time owned directly or indirectly by the
Company or one or more of its other subsidiaries or by the
Company and one or more of its other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean such successor
Trustee or any such successor to such a successor Trustee. If
pursuant to the provisions of this Indenture there shall be at
any time more than one Trustee hereunder, the term "Trustee" as
used with respect to Securities of any series shall mean the
Trustee with respect to Securities of that series.
"Trust Indenture Act" or "TIA" means, subject to Sections
1001(6) and 1005, the Trust Indenture Act of 1939, as amended,
and as in force at the date as of which this Indenture was
executed.
"Unrestricted Subsidiary" means (a) any Subsidiary acquired or
organized after March 1, 1994, provided, however, that such
Subsidiary shall not be a successor, directly or indirectly, to
any Restricted Subsidiary; (b) any Subsidiary whose principal
business or assets are located outside the United States of
America, its territories and possessions, Puerto Rico or Canada;
(c) any Subsidiary the principal business of which consists of
financing or assisting in financing of customer construction
projects or the acquisition or disposition of products by
dealers, distributors or other customers; (d) any Subsidiary
engaged in the insurance business or whose principal business is
the ownership, leasing, purchasing, selling or development of
real property; and (e) any Subsidiary substantially all the
assets of which consist of stock or other securities of a
Subsidiary or Subsidiaries of a character described in clauses
(a) through (d) of this paragraph; unless and until any such
Subsidiary shall have been designated to be a Restricted
Subsidiary pursuant to clause (b) of the definition of
"Restricted Subsidiary".
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in
either case under clauses (i) or (ii) are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or
a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
"U.S. Person" means, unless otherwise specified with respect to
the Securities of any series as contemplated by Section 301, a
citizen, national or resident of the United States, a
corporation, partnership or other entity created or organized in
or under the laws of the United States or any political
subdivision thereof, or an estate or trust the income of which is
subject to United States federal income taxation regardless of
its source.
"Voting Stock" means outstanding shares of capital stock having
under ordinary circumstances (not dependent on the happening of a
contingency) voting power for the election of directors.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each
such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by officers of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any
other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall
include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such
Person or Persons may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect
to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements,
opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be
given or taken by Holders or Holders of Securities of any series
may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing or by the record of the
Holders of Securities voting in favor thereof at any meeting of
such Holders duly called and held in accordance with the
provisions of Article Twelve; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments or any such record are delivered to the
Trustee, and where it is hereby expressly required, to the
Company. Such instrument or instruments or such record (and the
action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or voting at such meeting. Proof of
execution of any such instrument or of a writing appointing any
such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 701) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be
proved in the manner provided in Article Twelve and the record so
proved shall be sufficient for any purpose of this Indenture and
(subject to Section 701) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a
witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgements of
deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in
any other manner that the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security
shall bind every future Holder of the same Security and the
Holder of every Security issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of any thing
done or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the
purpose of determining the Holders of Securities of any series
entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by
Holders of Securities of such action, authorized or permitted to
be given or taken by Holders of Securities of such series. If
not set by the Company prior to the first solicitation of a
Holder of Securities of such series made by any Person in respect
of any such actions, or, in the case of any such vote, prior to
such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 801) prior to
such first solicitation or vote, as the case may be. With regard
to any record date for action to be taken by the Holders of one
or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall
be entitled to give or take, or vote on, the relevant action.
With regard to any record date set pursuant to this paragraph,
the Holders of Outstanding Securities of the relevant series on
such record date (or their duly appointed agents), and only such
Persons, shall be entitled to give or take the relevant action,
whether or not such Holders remain Holders after such record
date. With regard to any action that may be given or taken
hereunder only by Holders of a requisite principal amount of
Outstanding Securities of any series (or their duly appointed
agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date
after which no such action purported to be given or taken by any
Holder shall be effective hereunder unless given or taken on or
prior to such expiration date by Holders of the requisite
principal amount of Outstanding Securities of such series on such
record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may,
on one or more occasions at its option, extend such date to any
later date. Nothing in this paragraph shall prevent any Holder
(or any duly appointed agent thereof) from giving or taking,
after any expiration date, any action identical to, or, at any
time, contrary to or different from, any action given or taken,
or purported to have been given or taken, hereunder by a Holder
on or prior to such date, in which event the Company may set a
record date in respect thereof pursuant to this paragraph.
Notwithstanding the foregoing or the Trust Indenture Act, the
Company shall not set a record date for, and the provisions of
this paragraph shall not apply with respect to, any action to be
given or taken by Holders pursuant to Sections 601, 602 or 612.
(f) Without limiting the foregoing, a Holder entitled
hereunder to give or take any action hereunder with regard to any
particular Security may do so with regard to all or any part of
the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such
principal amount.
SECTION 105. Notices etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or
filed with
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (except as provided in
Section 601(4)) if made, given, furnished or filed in writing to
or with the Company at the address of its principal office
specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by
the Company.
SECTION 106. Notices to Holders; Waiver.
Where this Indenture or any Security provides for notice to
Holders of any event, such notice shall be sufficiently given
(unless otherwise herein or in such Securities expressly
provided) if in writing and mailed, first-class postage prepaid,
to each Holder of such Securities, at his address as it appears
on the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such
notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice
by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken
in reliance upon such waiver. In any case where notice to
Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect
to other Holders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly
given.
In case, by reason of the suspension of regular mail service as
a result of a strike, work stoppage or otherwise, it shall be
impractical to mail notice of any event to the Holders of
Securities when such notice is required to be given pursuant to
any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee and the Company
shall be deemed to be a sufficient giving of such notice.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in
the English language, except that any published notice may be in
an official language of the country of publication.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required or deemed to be
included in this Indenture by any of the provisions of the TIA,
such required or deemed provision of the TIA shall control.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience of reference only and shall not
affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or
not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities of
any series shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed or
implied, shall give to any Person, other than the parties hereto
and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK, EXCEPT AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS OF
LAW.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date or Repayment Date
or Redemption Date or the Maturity of any Security or any date on
which any Defaulted Interest is proposed to be paid shall not be
a Business Day, then (notwithstanding any other provision of the
Securities or this Indenture) payment of interest, premium, if
any, or principal on any Securities need not be made on such
date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the nominal date of any
such Interest Payment Date or Repayment Date or Redemption Date
or Maturity or on the date on which Defaulted Interest is
proposed to be paid, and no interest shall accrue for the period
from and after such nominal date.
SECTION 114. Execution in Counterparts.
This Indenture may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
SECTION 115. No Security Interest Created.
Nothing in this Indenture or in the Securities, expressed or
implied, shall be construed to constitute a security interest
under the Uniform Commercial Code or similar legislation, as now
or hereafter enacted and in effect, in any jurisdiction where
property of the Company or its Subsidiaries is located.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series and the certificates of
authentication thereon shall have such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements
placed thereon, as may be required to comply with the rules of
any securities exchange, or as may, consistently herewith, be
determined by the officers executing such Securities, as
evidenced by their signing of such Securities. Any portion of
the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may
be produced in any other manner, all as determined by the
officers executing such Securities, as evidenced by their signing
of such Securities.
SECTION 202. Forms of Securities.
The Securities of each series shall be in one of the forms
approved from time to time by or pursuant to a Board Resolution,
or established in one or more indentures supplemental hereto.
Prior to the delivery of such Securities to the Trustee for
authentication in any form approved by or pursuant to a Board
Resolution, the Company shall deliver to the Trustee the Board
Resolution by or pursuant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a
true and correct copy of the form of such Securities which has
been approved by or pursuant thereto, or, if a Board Resolution
authorizes a specific officer or officers to approve a form of
such Securities, a certificate of such officer or officers
approving the form of such Securities attached thereto.
SECTION 203. Form of Trustee's Certificate of Authentication.
The following is the form of the Certificate of Authentication
of the Trustee to be endorsed on the face of all Securities
substantially as follows:
This is one of the Securities of the series designated herein
issued under the within-mentioned Indenture.
CHEMICAL BANK, as Trustee
By:_____________________________________
Authorized Officer
SECTION 204. Form of Legend for Global Securities.
Any Global Security authenticated and delivered hereunder may
bear any legend required to comply with the requirements of any
Depositary.
ARTICLE THREE
THE SECURITIES
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued up to the aggregate principal amount
of Securities from time to time authorized by or pursuant to a
Board Resolution.
The Securities may be issued in one or more series. All
Securities of each series issued under this Indenture shall in
all respects be equally and ratably entitled to the benefits
hereof with respect to such series without preference, priority
or distinction on account of the actual time or times of the
authentication and delivery or Maturity of the Securities of such
series. There shall be established in or pursuant to a Board
Resolution, and set forth, or determined in the manner provided,
in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of
Securities of any series:
(1) the title of the Securities of the series (which title
shall distinguish the Securities of the series from all other
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (which limit shall not pertain to Securities
authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series
pursuant to Sections 304, 305, 306, 407, or 1006);
(3) the date or dates on which the principal of the
Securities of the series is payable or the method of
determination thereof;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating such
rate or rates of interest, the date or dates from which such
interest shall accrue or the method by which such date or dates
shall accrue or the method by which such date or dates shall be
determined, and the Interest Payment Dates on which any such
interest shall be payable;
(5) the place or places where, subject to the provisions of
Section 1102, the principal of, premium, if any, and interest, if
any, on Securities of the series shall be payable;
(6) the period of periods within which, the price or prices
at which, and the other terms and conditions upon which,
Securities of the series may be redeemed, in whole or in part, at
the option of the Company and, if other than as provided in
Section 403, the manner in which the particular Securities of
such series (if less than all Securities of such series are to be
redeemed) are to be selected for redemption;
(7) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or upon the happening of a specified event
or at the option of a Holder thereof and the period or periods
within which, the price or prices at which, and the other terms
and conditions upon which, Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such
Securities;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the
series shall be issuable;
(9) if other than Dollars, the currency or currencies
(including currency units) in which the principal of, premium, if
any, and interest, if any, on the Securities of the series shall
be payable, or in which the Securities of the series shall be
denominated, the particular provisions applicable thereto, and
whether the Securities of the series may be satisfied and
discharged other than as provided in Article Five;
(10) if the payments of principal of, premium, if any, or
interest, if any, on the Securities of the series are to be made,
at the election of the Company or a Holder, in a currency or
currencies (including currency units) other than that in which
such Securities are denominated or designated to be payable, the
currency or currencies (including currency units) in which such
payments are to be made, the terms and conditions of such
payments and the manner in which the exchange rate with respect
to such payments shall be determined, the particular provisions
applicable thereto, and whether the Securities of the series may
be satisfied and discharged other than as provided in Article
Five;
(11) if the amount of payments of principal of, premium, if
any, and interest, if any, on the Securities of the series shall
be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation,
on a currency or currencies (including currency units) other than
that in which the Securities of the series are denominated or
designated to be payable), the index, formula or other method by
which such amounts shall be determined;
(12) if other than the principal amount thereof, the portion
of the principal amount of such Securities of the series which
shall be payable upon declaration of acceleration thereof
pursuant to Section 602 or the method by which such portion shall
be determined;
(13) if other than as provided in Section 307, the Person to
whom any interest on any Security of the series shall be payable,
and the extent to which, or the manner in which (including any
certification requirement and other terms and conditions under
which), any interest payable on a temporary or permanent Global
Security on an Interest Payment Date will be paid if other than
in the manner provided herein;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(15) any deletions from, modifications of or additions to
the Events of Default set forth in Section 601 or covenants of
the Company set forth in Article Eleven pertaining to the
Securities of the series;
(16) under what circumstances, if any, the Company will pay
additional amounts on the Securities of that series held by a
Person who is not a U.S. Person in respect of taxes or similar
charges withheld or deducted and, if so, whether the Company will
have the option to redeem such Securities rather than pay such
additional amounts (and the terms of any such option);
(17) the applicability, if any, to the Securities of or
within the series of Article Thirteen or such other means of
defeasance or covenant defeasance as may be specified for the
Securities, and whether, for the purpose of such defeasance or
covenant defeasance, the term "U.S. Government Obligation" shall
include obligations referred to in the definition of such term
which are not obligations of the United States or an agency or
instrumentality of the United States;
(18) if other than the Trustee, the identity of the Security
Registrar and any Paying Agent;
(19) if and as applicable, that the Securities of the series
shall be issuable in whole or in part in the form of one or more
Global Securities and, in such a case, the Depositary or
Depositaries for such Global Security or Global Securities and
any circumstances other than those set forth in Section 305 in
which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name
of, a Person other than the Depositary for such Global Security
or a nominee thereof and in which any such transfer may be
registered;
(20) the terms and conditions upon which Securities of the
series will be convertible into shares of Common Stock or other
securities of the Company, including the conversion price, the
conversion period and other conversion terms and provisions; and
(21) any other term of the series (which term shall not be
inconsistent with the provisions of this Indenture), including,
but not limited to, any terms which may be required by or
advisable under United States laws or regulations or advisable in
connection with the marketing of Securities of the series.
All Securities of any one series shall be substantially
identical except as to denomination and the rate or rates of
interest, if any, and Stated Maturity, the date from which
interest, if any, shall accrue and except as may otherwise be
provided in or pursuant to an Officers' Certificate pursuant to
this Section 301 or in an indenture supplemental hereto. All
Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without
the consent of the Holders, for issuances of additional
Securities of such series or for the establishment of additional
terms with respect to the Securities of such series.
The principal of, premium, if any, and interest on the
Securities shall be payable at the office or agency maintained by
the Company for such purposes as provided in Section 1102 (herein
called the "Place of Payment"); provided, however, that, unless
otherwise provided in or pursuant to an Officers' Certificate
pursuant to this Section 301 or in an indenture supplemental
hereto, payment of interest may be made at the option of the
Company by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated in Section
301. In the absence of any specification with respect to the
Securities of any series, the Securities of such series shall be
issuable in denominations of $1,000 and any integral multiple
thereof.
SECTION 303. Execution, Authentication, Dating and Delivery.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, Vice Chairman of the Board, President
or one of its Vice Presidents under its corporate seal reproduced
thereon and attested by its Secretary or one of its Assistant
Secretaries. The signatures of any or all of these officers on
the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who are, at any time on or after the date as of which
this Indenture is dated, the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication
and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time, the Company may deliver
Securities of any series executed by the Company to the Trustee
for authentication, together with a Company Order for the
authentication and make available for delivery such Securities,
and the Trustee in accordance with the Company Order shall
authenticate and deliver such Securities; provided, however, that
in the case of Securities offered in a Periodic Offering, the
Trustee shall authenticate and deliver such Securities from time
to time in accordance with such other procedures (including,
without limitation, the receipt by the Trustee of oral or
electronic instructions from the Company or its duly authorized
agents, promptly confirmed in writing) acceptable to the Trustee
as may be specified by or pursuant to a Company Order delivered
to the Trustee prior to the time of the first authentication of
Securities of such series.
If the form or terms of the Securities of a series have been
established by or pursuant to one or more Officers' Certificates
as permitted by Section 301, in authenticating such Securities
and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating,
(1) that the forms and terms of such Securities have been
established in conformity with the provisions of this Indenture;
and
(2) that such Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms,
subject to customary exceptions;
provided, however, that, with respect to Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to
receive such Opinion of Counsel only once at or prior to the time
of the first authentication of Securities of such series and that
the Opinion of Counsel above may state:
(x) that the forms of Securities have been, and the terms
of such Securities (when established in accordance with such
procedures as may be specified from time to time in a Company
Order, all as contemplated by and in accordance with a Board
Resolution or an Officers' Certificate pursuant to Section 301,
as the case may be) will have been, established in conformity
with the provisions of this Indenture; and
(y) that such Securities, when (1) executed by the
Company, (2) completed, authenticated and delivered by the
Trustee in accordance with this Indenture, and (3) issued by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance
with their respective terms, subject to customary exceptions.
With respect to Securities of a series subject to a Periodic
Offering, the Trustee may conclusively rely, as to the
authorization by the Company of any of such Securities, the form
and terms thereof and the legality, validity, binding effect and
enforceability thereof, upon the Opinion of Counsel and other
documents delivered pursuant to Section 201 or 301, at or prior
to the time of the first authentication of Securities of such
series unless and until it has received written notification that
such opinion or other documents have been superseded or revoked.
In connection with the authentication and delivery of Securities
of a series subject to a Periodic Offering, the Trustee shall be
entitled to assume that the Company's instructions to
authenticate and deliver such Securities do not violate any
rules, regulations or orders of any governmental agency or
commission having jurisdiction over the Company.
Notwithstanding the provisions of Section 301 and of the two
preceding paragraphs, if all of the Securities of any series are
not to be issued at one time, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to
Section 301 at or prior to the time of the authentication of each
Security of such series if such Officers' Certificate is
delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
The Trustee shall not be required to authenticate such
Securities if the issue thereof will adversely affect the
Trustee's own rights, duties or immunities under the Securities
and this Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee or such action would expose
the Trustee to personal liability to existing Holders.
Unless otherwise provided in the form of Security for any
series, all Securities shall be dated the date of their
authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there
appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and
shall not be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order, the Trustee
shall authenticate and deliver, such temporary Securities which
may be printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denominations,
substantially of the tenor of such definitive Securities in lieu
of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers
executing such temporary Securities may determine, as evidenced
by their execution of such temporary Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive
Securities of any series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series,
upon surrender of the temporary Securities of such series at any
office or agency maintained by the Company for such purposes as
provided in Section 1102, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of such series
having the same interest rate and Stated Maturity and bearing
interest from the same date of any authorized denominations.
Until so exchanged the temporary Securities of such series shall
in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 305. Registration, Transfer and Exchange.
The Company shall cause to be kept at the offices or agencies
to be maintained by the Company as provided in Section 1102 of
this Indenture a register for each series of Securities issued
hereunder (herein sometimes referred to as a "Security Register"
and all such registers for each series of Securities herein
sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of
Securities and the registration of transfers and exchanges of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at any office or agency to be maintained by the
Company as provided in Section 1102, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Securities of such series having the same interest rate and
Stated Maturity and bearing interest from the same date of any
authorized denominations of a like aggregate principal amount,
all as requested by the transferor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of such series having the same
interest rate and Stated Maturity and bearing interest from the
same date of any authorized denominations, of a like aggregate
principal amount, upon surrender of the Securities to be
exchanged at any such office or agency, and upon payment, if the
Company shall so require, of the charges hereinafter provided.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued in exchange for or upon transfer of
Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered for such exchange
or transfer.
Every Security presented or surrendered for registration of
transfer or 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 Trustee duly executed by the Holder thereof or his attorney
duly authorized in writing.
Unless otherwise provided in the Securities to be transferred
or exchanged, no service charge shall be made for any transfer or
exchange of Securities, but the Company may (unless otherwise
provided in such Securities) require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed
in connection with any transfer or exchange of Securities, other
than exchanges expressly provided in this Indenture to be made at
the Company's own expense or without expense or without charge to
Holders.
The Company shall not be required (i) to issue, transfer or
exchange any Securities of any series during a period beginning
at the opening of business 15 days before the day of the mailing
of a notice of redemption of Securities of such series to be
redeemed under Section 403 and ending at the close of business on
the day of the mailing of a notice of redemption of Securities of
such series so selected for redemption, or (ii) to transfer or
exchange any Securities so selected for redemption in whole or
that portion of any Security selected for redemption in part.
Notwithstanding any other provision in this Indenture, any
Global Security shall be exchangeable pursuant to this Section
305 for Securities registered in the names of Persons other than
the Depositary for such Global Security or its nominee only when
(i) such Depositary notifies the Company and the Trustee in
writing that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time such Depositary ceases
to be a clearing agency registered under the Securities Exchange
Act of 1934, as amended, and a successor Depositary is not
appointed by the Company within 90 days, (ii) the Company in its
sole discretion determines that Securities shall no longer be
represented by a Global Security and executes and delivers to the
Trustee a Company Order that such Global Security shall be so
exchangeable, (iii) 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 the Securities represented by such Global
Security or (iv) there shall exist such other circumstances, if
any, as shall be specified for this purpose as contemplated by
Section 301. Any Global Security that is exchangeable pursuant
to clause (i), (ii), (iii) or (iv) above, shall be surrendered by
the Depositary, or such other depositary as shall be specified in
the Company Order with respect thereto, to the Trustee, as the
agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such
permanent Global Security, an equal aggregate principal amount of
definitive Securities, executed by the Company, of the same
series of authorized denominations and of like tenor as the
portion of such Global Security to be exchanged, which shall be
in the form of registered Securities as provided in the Company
Order.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security
other than pursuant to clauses (i), (ii), (iii) or (iv) in the
preceding paragraph, whether pursuant to this Section, Section
304, 306, 407 or 1006 or otherwise, shall be authenticated and
delivered in the form of, and shall be, a Global Security.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
A mutilated Security may be surrendered and, after the delivery
to the Company and the Trustee of such security or indemnity as
may be required by them to save each of them harmless, the
Company may execute and the Trustee may authenticate and deliver
in exchange therefor a new Security of the same series of like
tenor and principal amount and bearing a number or other
identifying mark not contemporaneously Outstanding.
If there be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft
of any Security, and (ii) such security or indemnity as may be
required by them to save each of them harmless, then, the Company
may execute and upon its request the Trustee may authenticate and
deliver in lieu of any such destroyed, lost or stolen Security a
new Security of the same series of like tenor and principal
amount and bearing a number or other identifying mark not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in
its discretion may instead of issuing a new Security, pay such
Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any
and all other Securities of the same series duly issued
hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date, on any Security,
shall unless otherwise provided in such Security be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest.
In the case of Securities represented by a Global Security
registered in the name of or held by a Depositary or its nominee,
unless otherwise specified by Section 301, payment of principal,
premium, if any, and interest, if any, will be made to the
Depositary or its nominee, as the case may be, as the registered
owner or Holder of such Global Security.
Unless otherwise stated in the form of Security of a series,
interest on the Securities of any series shall be computed on the
basis of a 360-day year comprised of twelve 30-day months.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the registered Holder on the relevant Regular
Record Date by virtue of having been such Holder; and such
Defaulted Interest may be paid by the Company, at its election in
each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names any such Securities (or
their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of
such Defaulted Interest which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security
and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in
this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of such Securities,
at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. The Trustee may,
in its discretion, in the name and at the expense of the Company,
cause a similar notice to be published at least once in an
Authorized Newspaper, but such publication shall not be a
condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall
no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements
of any securities exchange on which the Securities of that series
may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon transfer of or in
exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of any 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, premium, if any, and (subject
to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company, or
the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee or any agent of the Company,
or the Trustee shall have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Security, or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests. Notwithstanding the
foregoing, with respect to any Global Security, nothing herein
shall prevent the Company, or the Trustee, or any agent of the
Company, or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any
depository (or its nominee), as a Holder, with respect to such
Global Security or impair, as between such depository and owners
of beneficial interests in such Global Security, the operation of
customary practices governing the exercise of the rights of such
Depository (or its nominee) as Holder of such Global Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, transfer or exchange
shall, if surrendered to the Company or any agent of the Company,
be delivered to the Trustee and shall be promptly cancelled by it
or if surrendered to the Trustee shall be cancelled by it. The
Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and
all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be destroyed by
the Trustee and a certificate of such destruction shall be
delivered to the Company.
ARTICLE FOUR
REDEMPTION OF SECURITIES; SINKING FUNDS
SECTION 401. Applicability of Article.
The Company may reserve the right to redeem and pay before
Stated Maturity all or any part of the Securities of any series,
either by optional redemption, sinking fund (mandatory or
optional) or otherwise, by provision therefor in the form of
Security for such series approved or established pursuant to
Section 202 and on such terms as are specified in such form or
the Officers' Certificate delivered pursuant to Section 301 or
the indenture supplemental hereto as provided in Section 301 with
respect to Securities of such series. Redemption of Securities
of any series shall be made in accordance with the terms of such
Securities and, to the extent that this Article does not conflict
with such terms, in accordance with this Article.
SECTION 402. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities redeemable
at the option of the Company shall be evidenced by an Officers'
Certificate. In case of any redemption at the election of the
Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such
series to be redeemed. In case of any redemption at the election
of the Company of all the Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date.
SECTION 403. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by
the Trustee from the Outstanding Securities of such series not
previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal of
Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of such series.
Unless otherwise provided by the terms of the Securities of any
series so selected for partial redemption, the portions of the
principal amount which remains Outstanding shall not be less than
the minimum authorized denomination for Securities of such
series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of
Securities shall relate, in the case of any Security redeemed or
to be redeemed only in part, to the portion of the principal of
such Security which has been or is to be redeemed.
SECTION 404. Notice of Redemption.
Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of
partial redemption, the respective principal amounts) of the
Securities to be redeemed from the Holder to whom the notice is
given;
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the
holder will receive, without a charge, a new Security or
Securities of authorized denominations for the principal amount
thereof remaining unredeemed;
(5) that on the Redemption Date, the Redemption Price will
become due and payable upon each such Security, and that
interest, if any, thereon shall cease to accrue on said date;
(6) the place where such Securities are to be surrendered
for payment of the Redemption Price, which shall be the office or
agency maintained by the Company for such purposes as provided in
Section 1102; and
(7) that the redemption is on account of a sinking fund, if
that be the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, on
Company Request, by the Trustee in the name and at the expense of
the Company.
Unless any Security by its terms prohibits any sinking fund
payment obligation from being satisfied by delivering and
crediting Securities (including Securities redeemed otherwise
than through a sinking fund), the Company may deliver such
Securities to the Trustee for crediting against such payment
obligation in accordance with the terms of such Securities and
this Indenture.
SECTION 405. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided
in Section 1103) an amount of money sufficient to pay the
Redemption Price of, which shall include any premium and interest
payable on, all the Securities which are to be redeemed on that
date.
SECTION 406. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified
and on such date (unless the Company shall default in the payment
of the Redemption Price) such Securities shall cease to bear
interest. Upon surrender of such Securities for redemption in
accordance with said notice, such Securities shall be paid by the
Company at the Redemption Price together with accrued interest to
the Redemption Date. Installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities on the relevant Regular Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until
paid, bear interest from the Redemption Date at the rate borne by
such Security, or as otherwise provided in such Security.
SECTION 407. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at the office or agency maintained by the Company for
such purposes as provided in Section 1102 (with, if the Company
or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder of such Security or his
attorney duly authorized in writing) and the Company shall
execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge, a new Security or
Securities of the same series having the same interest rate and
Stated Maturity and bearing interest from the same date of any
authorized denominations as requested by such Holder, in
aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so
surrendered.
SECTION 408. Provisions with Respect to any Sinking Funds.
If the form or terms of any series of Securities shall provide
that, in lieu of making all or any part of any mandatory sinking
fund payment with respect to such series of Securities in cash,
the Company may at its option (1) deliver to the Trustee for
cancellation any Securities of such series theretofore acquired
by the Company, or (2) receive credit for any Securities of such
series (not previously so credited) acquired by the Company and
theretofore delivered to the Trustee for cancellation, then
Securities so delivered or credited shall be credited at the
applicable sinking fund Redemption Price with respect to
Securities of such series.
On or before the 60th day next preceding each sinking fund
Redemption Date, the Company will deliver to the Trustee a
certificate signed by the Treasurer or any Assistant Treasurer of
the Company specifying (i) the portion of the mandatory sinking
fund payment to be satisfied by deposit of funds, by delivery of
Securities theretofore purchased or otherwise acquired by the
Company (which Securities shall accompany such certificate) and
by credit for Securities acquired by the Company and theretofore
delivered to the Trustee for cancellation redeemed by the Company
and stating that the credit to be applied has not theretofore
been so applied or applied in lieu of retiring Funded Debt
pursuant to Section 1105 and (ii) whether the Company intends to
exercise its right, if any, to make an optional sinking fund
payment, and if so, the amount thereof. Such certificate shall
also state that no Event of Default has occurred and is
continuing. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the payment or
payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. In case of the failure of
the Company on or before the 60th day next preceding each sinking
fund Redemption Date to deliver such certificate (or to deliver
the Securities specified in this paragraph), the sinking fund
payment due on the next succeeding sinking fund payment date
shall be paid entirely in funds and shall be sufficient to redeem
the principal amount of Securities as a mandatory sinking fund
payment, without the option to deliver or credit Securities as
provided in the first paragraph of this Section 408 and without
the right to make an optional sinking fund payment as provided
herein.
If the sinking fund payment or payments (mandatory or optional)
with respect to any series of Securities made in cash plus any
unused balance of any preceding sinking fund payments with
respect to Securities of such series made in cash shall exceed
$100,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of
Securities, said cash shall be applied by the Trustee on the
sinking fund Redemption Date with respect to Securities of such
series next following the date of such payment to the redemption
of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series,
together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 406. The Trustee
shall select, in the manner provided in Section 403, for
redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize said
cash and shall thereupon cause notice of redemption of the
Securities of such series for the sinking fund to be given in the
manner provided in Section 404 (and with the effect provided in
Section 406) for the redemption of Securities in part at the
option of the Company. Any sinking fund moneys not so applied or
allocated by the Trustee to the redemption of Securities of such
series shall be added to the next cash sinking fund payment with
respect to Securities of such series received by the Trustee and,
together with such payment, shall be applied in accordance with
the provisions of this Section 408. Any and all sinking fund
moneys with respect to Securities of any series held by the
Trustee at the Maturity of Securities of such series, and not
held for the payment or redemption of particular Securities of
such series, shall be applied by the Trustee, together with other
moneys, if necessary, to be deposited sufficient for the purpose,
to the payment of the principal of the Securities of such series
at Maturity.
On or before each sinking fund Redemption Date provided with
respect to Securities of any series, the Company shall pay to the
Trustee in cash a sum equal to all accrued interest, if any, to
the date fixed for redemption on Securities to be redeemed on
such sinking fund Redemption Date pursuant to this Section 408.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 501. Satisfaction and Discharge of Indenture.
This Indenture upon Company Request shall cease to be of
further effect (except as to (i) remaining rights of registration
of transfer, substitution and exchange of Securities, (ii) rights
hereunder of Holders to receive payments of principal of,
premium, if any, and interest on, the Securities, and other
rights, duties and obligations of the Holders as beneficiaries
hereof with respect to the amounts, if any, so deposited with the
Trustee and (iii) the rights, obligations and immunities of the
Trustee hereunder), and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 306 and (ii) Securities for which payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company including money so deposited in trust or so
segregated and held in trust and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1103) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company
and the Company, in the case of (i), (ii), or (iii) above,
has deposited or caused to be deposited with the Trustee as trust
funds in trust an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal, premium, if any,
and interest to the date of such deposit (in the case of
Securities which have become due and payable), or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 707
shall survive and the Company hereby agrees to reimburse the
Trustee for any costs or expenses hereafter reasonably and
properly incurred in connection with this Indenture or the
Securities.
SECTION 502. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 501
shall be held in trust and applied by it to the payment, either
directly or through any Paying Agent, as the Trustee may
determine, to the Holders of the Securities for whose payments
such money has been deposited with the Trustee, of all sums due
and to become due thereon for principal, premium, if any, and
interest; but such money need not be segregated from other funds
except to the extent required by law.
ARTICLE SIX
REMEDIES
SECTION 601. Events of Default.
"Event of Default", with respect to any series of Securities,
wherever used and herein, means any one of the following events
(whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or
governmental body), unless such event is either inapplicable to a
particular series or it is specifically deleted or modified in
the supplemental indenture under or the Board Resolution under or
pursuant to which such series of Securities is issued or in the
form of Security for such series:
(1) default in the payment of any installment of interest
upon any Security of such series when it becomes due and payable,
and continuance of such default for a period of 30 days after its
due date; or
(2) default in the payment of principal of or premium, if
any, on any Security of such series at its Maturity; or
(3) default in the making or satisfaction of any sinking
fund payment or analogous obligation with respect to the
Securities of such series when the same becomes due by the terms
of the Securities of such series; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in respect of the Securities of such
series in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default
or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) if an event of default with respect to any other series
of Securities issued or hereafter issued pursuant to this
Indenture or as defined in any mortgage, indenture or instrument,
under which there may be issued, or by which there may be secured
or evidenced, any indebtedness of the Company, whether such
indebtedness now exists or shall hereafter be created, shall
happen and shall result in such other series of Securities or
such indebtedness, as the case may be, becoming or being declared
due and payable prior to the date on which it would otherwise
become due and payable, and such acceleration shall not be
rescinded or annulled within 30 days after written notice to the
Company from the Trustee or to the Company and to the Trustee
from the Holders of not less than 25% in principal amount of the
Securities of such series at the time Outstanding; provided,
however, that the aggregate principal amount of indebtedness
outstanding with respect to which such default or defaults relate
exceeds $5,000,000; and provided further, however, that, subject
to the provisions of Section 701 and Section 703, the Trustee
shall not be charged with knowledge of any such default unless
written notice thereof shall have been given to a Responsible
Officer by the Holder or an agent of the Holder of any Securities
of any such other series or of any such indebtedness, as the case
may be, or by the Trustee then acting under this Indenture with
respect to such other series of Securities or under any indenture
or other instrument, as the case may be, under which such default
shall have occurred, or by the Holders of not less than 25% in
the aggregate principal amount of the Securities of such series
at the time Outstanding; and provided, further, that if such
event of default with respect to such other series of Securities
or such indebtedness, as the case may be, pursuant to this
Indenture or such indenture or instrument, as the case may be,
shall be remedied or cured by the Company or waived by the
Holders of such other series of Securities or the holders of such
indebtedness, as the case may be, pursuant to this Indenture or
such indenture or instrument, as the case may be, then unless the
maturity of the Securities of such series shall have been
accelerated as provided herein, the Event of Default hereunder by
reason thereof shall be deemed likewise to have been thereupon
remedied, cured or waived without further action upon the part of
either the Trustee or the Holders of Securities of such series;
or
(6) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in
respect of the Company under the Federal Bankruptcy Code or any
other applicable Federal or State law, or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 90 consecutive days; or
(7) the institution by the Company of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under the Federal Bankruptcy Code or any
other applicable Federal or State law, or the consent by it to
the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due and its willingness to
be adjudicated a bankrupt, or the taking of corporate action by
the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 602. Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to any series of Securities
for which there are Securities Outstanding occurs and is
continuing, then and in every such case the Trustee or the
Holders of not less than 25% in principal amount of the
Outstanding Securities of such series may declare the principal
(or, if the Securities of that series are Original Issue Discount
Securities or Indexed Securities, such portion of the principal
amount as may be specified in the terms of that series) of all
the Securities of such series to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if
given by Holders), and upon any such declaration such principal
(or, in the case of Original Issue Discount Securities or Indexed
Securities, such specified amount) shall become immediately due
and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a
judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the
Holders of a majority in principal amount of the Outstanding
Securities of such series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue installments of interest on all Securities
of such series,
(B) the principal of and premium, if any, on any Securities
of such series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Securities of such series or as otherwise provided
in the form of Security of such series,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate borne
by the Securities of such series or as otherwise provided in the
form of Security of such series, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of
the principal of Securities of such series which have become due
solely by such acceleration, have been cured or waived as
provided in Section 613.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 603. Collection of Indebtedness and
Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes
due and payable and such default continues for a period of 30
days, or
(2) default is made in payment of the principal of or
premium, if any, on any Security of any series at the Maturity
thereof, or
(3) default is made in the making or satisfaction of any
sinking fund payment or analogous obligation with respect to the
Securities of any series when the same becomes due by the terms
of the Securities of any series,
the Company will, upon demand of the Trustee, pay to it, for the
benefit of the Holders of any such Security (or Holders of
Securities of any such series in the case of Clause (3) above),
the whole amount then due and payable on any such Security (or
Securities of any such series in the case of Clause (3) above),
for principal, premium, if any, and interest, with interest upon
the overdue principal and premium, if any, and, to the extent
that payment of such interest shall be legally enforceable, upon
overdue installments of interest, at the rate borne by the
Securities of such series or as otherwise provided in the form of
Security of such series; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to
judgment or final decree, and may enforce the same against the
Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor
upon such Securities, wherever situated.
If any Event of Default with respect to any series of
Securities occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the
rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 604. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company
or any other obligor upon the Securities of any series or the
property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of
the Securities of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise
(1) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in
respect of the Securities of such series and to file such other
papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) and of the Holders of the
Securities of such series allowed in such judicial proceeding,
and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same,
and any receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee,
and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel, and all other amounts due the Trustee under Section 707.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept, or adopt on behalf
of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of
the claim of any Holder (except, as aforesaid, for the election
of a trustee in bankruptcy or other person performing similar
functions) in any such proceeding.
SECTION 605. Trustee May Enforce Claims without Possession of
Securities.
All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the
Trustee without the possession of any of the Securities of such
series or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities of such series
in respect of which such judgment has been recovered.
SECTION 606. Application of Money Collected.
Any money collected by the Trustee with respect to any series
of Securities pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee, and,
in the case of the distribution of such money on account of
principal, premium, if any, or interest, upon presentation of the
Securities of such series and the notation thereof of the payment
if only partially paid and upon surrender thereof if fully paid;
FIRST: To the payment of all amounts due the Trustee
under Section 707;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities of such series for principal, premium, if
any, and interest, in respect of which or for the benefit of
which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable
on such Securities, for principal, premium if any, and interest,
respectively, and
THIRD: The balance, if any, to the Company.
SECTION 607. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to
Securities of such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities
to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute
any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the
Holders of a majority in principal amount of the Outstanding
Securities of such series;
it being understood and intended that no one or more Holders of
such series shall have any right in any manner whatever by virtue
of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other Holders of
Securities of such series, or to obtain or to seek to obtain
priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders
of such series.
SECTION 608. Unconditional Right of Holders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of,
premium, if any, and (subject to Section 307) interest on such
Security on the respective Stated Maturities expressed in such
Security (or in the case of redemption or repayment, on the
Redemption Date or Repayment Date, as the case may be) and to
institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 609. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or
has been determined adversely to the Trustee or to such Holder,
then and in every such case the Company, the Trustee and the
Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee
and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 610. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen securities in the
last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 611. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of a
Security of any series to exercise any right or remedy accruing
upon any Event of Default with respect to the Securities of such
series shall impair any such right or remedy or constitute a
waiver of any such Event of Default with respect to the
Securities of such series or an acquiescence therein. Every
right and remedy given by this Article or by law to the Trustee
or to the Holders of the Securities of any series may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of the Securities of
such series, as the case may be.
SECTION 612. Control by Holders.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities
of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee, in its good faith determination subject to
Sections 701 and 703 hereof, does not find that the obeyance by
it of such direction shall be unduly prejudicial to the Holders
of the Securities of such series not joining in such direction or
expose the Trustee to personal liability, and
provided, further, that the Trustee may take any other action
which in its discretion it deems proper and which is not
inconsistent with such direction.
SECTION 613. Waiver of Past Defaults.
The Holders of a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series waive any past default
hereunder and its consequences, except a default
(1) in the payment of the principal of, premium, if any, or
interest on any Securities of such series, or in the payment of
any sinking fund payment or analogous obligation with respect to
Securities of such series, or
(2) in respect of a covenant or provision hereof which
under Article Ten cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of the Security of such series
under the Indenture, but no such waiver shall extend to any
subsequent or other default or impair any right consequent
thereon.
SECTION 614. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the cost of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any
suit instituted by any Holder for the enforcement of the payment
of the principal of, premium, if any, or interest on any Security
on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption or repayment, on or after
the Redemption Date or Repayment Date).
ARTICLE SEVEN
THE TRUSTEE
SECTION 701. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default
with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with
respect to Securities of such series, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether
they conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to any series
of Securities has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this
Indenture with respect to Securities of such series, and use the
same degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that,
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount or such lesser principal amount as permitted in
this Indenture of the Outstanding Securities of any series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture with respect to Securities of such series.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if
there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) Whether or not herein expressly so provided, every
provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee as
between the Trustee and the Holders shall be subject to the
provisions of this Section.
SECTION 702. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to Securities of any series known to a Responsible
Officer of the Trustee, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and
addresses appear in the Security Register, notice of such
default, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the
payment of the principal of, premium, if any, or interest on any
Security of such series, or in the payment of any sinking fund
payment or analogous obligation with respect to Securities of
such series, the Trustee shall be protected in withholding such
notice if and so long as the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee
in good faith determines that the withholding of such notice is
in the interests of the Holders of Securities of such series; and
provided, further, that in the case of any default of the
character specified in Section 601(4) with respect to Securities
of such series, no such notice to Holders of Securities of such
series shall be given until at least 60 days, but in any event
within 90 days, after the occurrence thereof. For the purpose of
this Section, the term "default" with respect to the Securities
of any series means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 703. Certain Rights of Trustee.
Subject to the provisions of Section 701:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be provided or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make an investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or
document but the Trustee, in its discretion, may make such
further inquiry or investigation into such fact or matters as it
may see fit, and, if the Trustee shall determine to make further
inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by
agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture.
SECTION 704. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 705. May Hold Securities.
The Trustee, any Paying Agent, the Security Registrar or any
other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and,
subject to Sections 708 and 713, may otherwise deal with, or
collect obligations owed to it by the Company with the same
rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION 706. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the
Company.
SECTION 707. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust or
the performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers
or duties hereunder. As security for the performance of the
obligations of the Company under this Section the Trustee shall
have a claim prior to the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in
trust for the payment of principal of, premium, if any, or
interest on particular Securities.
SECTION 708. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall
either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture. Nothing herein shall
prevent the Trustee from filing with the Commission the
application referred to in the last paragraph of Section 310(b)
of the Trust Indenture Act.
SECTION 709. Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to each
series of Securities hereunder which shall be a corporation
organized and doing business under the laws of the United States
of America or of any State thereof, authorized under such laws to
exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority. If such corporation
publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published. Neither the Company nor any
Person directly or indirectly controlling, controlled by, or
under common control with the Company shall serve as Trustee for
the Securities of any series issued hereunder. If at any time
the Trustee with respect to any series of Securities shall cease
to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 710. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the
successor Trustee under Section 711.
(b) The Trustee may resign at any time with respect to any
series of Securities by giving written notice thereof to the
Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities
of such series.
(c) The Trustee may be removed at any time with respect to
any series of Securities by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 708(a)
with respect to any series of Securities after written request
therefor by the Company or by any Holder who has been a bona fide
Holder of a Security of such series for at least six months, or
(2) the Trustee shall cease to be eligible under Section
709 with respect to any series of Securities and shall fail to
resign after written request therefor by the Company or by any
such Holder of a Security of such series, or
(3) the Trustee shall become incapable of acting with
respect to any series of Securities or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to such series, or (ii) subject
to Section 614, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee with respect to such series.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or
if a vacancy shall occur in the office of Trustee with respect to
any series of Securities for any cause, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee with
respect to such series. If, within one year after such
resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to such series shall be
appointed by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee with respect to such series, the
successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with
respect to such series and supersede the successor Trustee
appointed by the Company with respect to such series. If no
successor Trustee with respect to such series shall have been so
appointed by the Company or the Holders of Securities of such
series and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee
with respect to such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to any series and each
appointment of a successor Trustee with respect to any series by
written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of such series, as their
names and addresses appear in the Security Register. Each notice
shall include the name of the successor Trustee with respect to
such series and the address of its Corporate Trust Office.
SECTION 711. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become
effective with respect to all or any series as to which it is
resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with
respect to all or any such series; but, on request of the Company
or such successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee with respect to all or any such
series, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring
Trustee hereunder with respect to all or any such series, subject
nevertheless to its prior claim, if any, provided for in Section
707. Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
In case the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of any applicable series shall execute
and deliver an indenture supplemental hereto which 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 any series as
to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and 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.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified
and eligible under this Article to the extent operative.
SECTION 712. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article to the extent
operative, without the execution or filing of any paper or any
further act on the part of any of the parties hereto. In case
any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities.
SECTION 713. Preferential Collection of Claims against Company.
The Trustee shall comply with Section 311(a) of the Trust
Indenture Act, excluding any creditor relationship listed in
Section 311(b) of the Trust Indenture Act. A Trustee who has
resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 714. Authenticating Agents.
The Trustee may (and at the request of the Company shall)
appoint one or more Authenticating Agents with power to act on
its behalf and subject to its direction in the authentication and
delivery of any series of Securities pursuant to Sections 303,
304, 305, 306, 407 and 1006 as fully to all intents and purposes
as though any such Authenticating Agent had been expressly
authorized by said Sections to authenticate and deliver such
Securities. One such Authenticating Agent shall at all times be
organized and doing business under the laws of the United States
of America or of any State or Territory thereof or of the
District of Columbia authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of at
least $50,000,000 and being subject to supervision or examination
by Federal, State, Territorial or District of Columbia authority.
If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority,
then for the purposes of this Section 714 the combined capital
and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent
report of condition so published.
Whenever reference is made in this Indenture to the
authentication and delivery of Securities of any series by the
Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication and delivery
on behalf of the Trustee by its Authenticating Agent appointed
with respect to the Securities of such series and a certificate
of authentication executed on behalf of the Trustee by its
Authenticating Agent appointed with respect to the Securities of
such series.
Any corporation into which any Authenticating Agent may be
merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, consolidation or
conversion to which any Authenticating Agent shall be a party, or
any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 714, without the execution
or filing of any paper or any further act on the part of the
parties hereto or such Authenticating Agent or such successor
corporation.
Any Authenticating Agent may at any time resign as
Authenticating Agent with respect to any series of Securities by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent with respect to any series of Securities by
giving written notice of termination to such Authenticating Agent
and to the Company. Upon receiving such a notice of resignation
or upon such a termination, or in case at any time any
Authenticating Agent shall cease to be eligible under this
Section 714, the Trustee may, and upon the request of the Company
shall, promptly appoint a successor Authenticating Agent eligible
under this Section 714, shall give written notice of such
appointment to the Company and shall mail notice of such
appointment to all Holders of each series of Securities with
respect to which such appointment has been made as their names
and addresses appear on the Security Register. Any successor
Authenticating Agent with respect to any series of Securities
upon acceptance of its appointment hereunder shall become vested
with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as
Authenticating Agent herein with respect to such series.
The Company agrees to pay to any Authenticating Agent from time
to time reasonable compensation for its services. The provisions
of Sections 308, 703, 704 and 705 shall be applicable to any
Authenticating Agent.
If an appointment is made pursuant to this Section 714 with
respect to the Securities of any series, the Securities of such
series shall have endorsed thereon in lieu of the Certificate of
Authentication, an alternate Certificate of Authentication in the
following form:
This is one of the Securities of the series designated herein
issued under the within-mentioned Indenture.
CHEMICAL BANK, as Trustee
By:_____________________________________
As Authenticating Agent
By:_____________________________________
Authorized Signatory
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 801. Company to Furnish Trustee
Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date with respect to the Securities of any series, a list,
in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities of such series as of
such Regular Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee is the Security
Registrar with respect to the Securities of any series, no such
list described in (a) or (b) need be furnished to the Trustee
with respect to the Securities of such series.
SECTION 802. Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of
Securities contained in the most recent list furnished to the
Trustee as provided in Section 801 and the names and addresses of
Holders of Securities received by the Trustee in its capacity as
the Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 801 upon receipt of a new
list so furnished.
(b) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security of such series for a period
of at six months preceding the date of such application, and such
application states that the applicants desire to communicate with
other Holders of Securities of such series or with Holders of all
Securities with respect to their rights under this Indenture or
under such Securities and is accompanied by a copy of the form of
proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after
the receipt of such application, at its election, either
(1) afford such applicants access to the information
preserved at the time by the Trustee in accordance with Section
802(a), or
(2) inform such applicants as to the approximate number of
Holders of Securities of such series or of all Securities, as the
case may be, whose names and addresses appear in the information
preserved at the time by the Trustee in accordance with Section
802(a), and as to the approximate cost of mailing to such Holders
the form of proxy or other communication, if any, specified in
such application.
If the Trustee shall elect not to afford such applicants access
to such information, the Trustee shall, upon the written request
of such applicants, mail to each Holder of a Security of such
series or all Holders of Securities, as the case may be, whose
names and addresses appear in the information preserved at the
time by the Trustee in accordance with Section 802(a), a copy of
the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision
for the payment, of the reasonable expenses of mailing, unless
within five days after such tender, the Trustee shall mail to
such applicants and file with the Commission together with a copy
of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be
contrary to the best interests of the Holders of Securities of
such series or of all Securities, as the case may be, or would be
in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order
sustaining one or more of such objections, the Commission shall
find, after notice and opportunity for hearing, that all the
objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all
such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every Holder of the Securities, by receiving
and holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any Paying Agent nor
the Security Registrar shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the Holders of the Securities in accordance with Section
802(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under
Section 802(b).
SECTION 803. Reports by Trustee.
(a) Within 60 days after May 15 in each year, beginning in
1995, the Trustee shall transmit to Holders of Securities, as
their names and addresses appear in the Security Register, a
brief reportin accordance with and to the extent required under
the TIA.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange upon which any Securities are listed and also with the
Commission. The Company will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 804. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities and
Exchange Act of 1934 shall be filed with the Trustee within 15
days after the same is so required to be filed with the
Commission.
SECTION 805. Reports by Security Registrar.
If the Company shall appoint a Person other than the Trustee to
serve as the Security Registrar, the Security Registrar shall be
required to deliver to the Trustee reports in such form as the
Trustee may reasonably require. Such reports shall be sent to
the Trustee by facsimile within one Business Day after each
Interest Payment Date and after the principal of any Security
becomes due, upon maturity, by redemption or otherwise (the
"Payment Dates"), and a copy of such reports shall also be
delivered to the Trustee by overnight courier or shall be hand
delivered. Upon three days prior written notice from the
Trustee, the Security Registrar may also be required to provide
additional reports reasonably requested by the Trustee on dates
other than Payment Dates. The reports which the Security
Registrar shall be required to provide to the Trustee shall
include the following information:
(1) the Outstanding amount of all such Securities issued
pursuant to the Indenture as of the Regular Record Date last
preceding the date such report is finished, including information
as to the Outstanding amount of such Securities;
(2) a complete list of the names and addresses of the
Holders of such Outstanding Securities as of the Regular Record
Date last preceding the date such report is furnished, including
information as to the type and amount of such Securities held by
each such Holder and the amount of payments made to each such
Holder on the Payment Date last preceding the date of such
report; and
(3) such additional information, documents and reports as
the Trustee may reasonably request;
provided, however, that if any payment of principal or interest
is not made by 4:00 p.m. Eastern Standard Time on a required
Payment Date with respect to any Securities at the time
Outstanding, the Paying Agent will be required to provide notice
of such nonpayment to the Trustee by telephone by 5:00 p.m.
Eastern Standard Time on the date upon which such nonpayment
occurs and to deliver to the Trustee on the day following the
date upon which such nonpayment occurs the information required
pursuant to (1) and (2) above.
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 901. Company May Consolidate, etc., Only on Certain
Terms.
The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation with or
into which the Company is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America or any
State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee,
the due and punctual payment of the principal of, premium, if
any, and interest on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall have
happened and be continuing;
(3) if any Principal Property of the Company or any
Restricted Subsidiary would as a result of such consolidation,
merger, sale or conveyance become subject to any mortgage,
pledge, lien, security interest or other encumbrance not
permitted by Section 1104, the Company shall make effective
provisions whereby the Securities of each series then Outstanding
shall be secured by a lien on the Company or Restricted
Subsidiary's Principal Property that becomes subject to such
mortgage, pledge, lien, security interest or other encumbrance
not permitted by Section 1104 that is equal and ratable in rank
to all such resulting mortgages, pledges, liens, security
interests or other encumbrances not permitted by Section 1104;
and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 902. Successor Corporation Substituted.
Upon any consolidation or merger, or any conveyance or transfer
of the properties and assets of the Company substantially as an
entirety in accordance with Section 901, the successor
corporation formed by such consolidation or into which the
Company is merged or to which such conveyance or transfer is made
shall succeed to, and be fully substituted for, and may exercise
every right and power of, the Company under this Indenture with
the same effect as if such successor corporation had been named
as the Company herein; and in the event of any such conveyance or
transfer, other than a transfer by way of a lease, the Company
(which term shall for this purpose mean the Person named as the
"Company" in the first paragraph of this Indenture or any
successor corporation which shall theretofore become such in the
manner prescribed in Section 901) shall be discharged from all
liability under this Indenture and in respect of the Securities
and may be dissolved and liquidated.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 1001. Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders of any Securities, the
Company, when authorized by a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more
indentures supplemental hereto for any of the following purposes:
(1) to evidence the succession of another corporation to
the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities contained;
or
(2) to add to the covenants of the Company, for the benefit
of the Holders of Securities of all or any series, or to
surrender any right or power herein conferred upon the Company;
or
(3) to secure the Securities of all series in accordance
with the provisions of Sections 901 and 1104; or
(4) to cure any formal defect, ambiguity, to correct or
supplement any provision herein which may be inconsistent with
any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture
provided such provision shall not adversely affect the interest
of the Holders of Securities of any series; or
(5) to evidence and provide for the acceptance of
appointment by another corporation as a successor Trustee
hereunder with respect to one or more series of Securities 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
Section 711; or
(6) to modify, amend or supplement this Indenture in such a
manner as to permit the qualification of any indenture supplement
hereto under the Trust Indenture Act of 1939 as then in effect,
except that nothing herein contained shall permit or authorize
the inclusion in any indenture supplemental hereto of the
provisions referred to in Section 316(a)(2) of the Trust
Indenture Act; or
(7) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to facilitate the
issuance of Global Securities; or
(8) to provide for the issuance of Securities in coupon form
(including Securities registrable as to principal only) and to
provide for exchangeability of such Securities with Securities of
the same series issued hereunder in fully registered form and to
make all appropriate changes for such purpose; or
(9) to establish any additional form of Security, as
permitted by Section 202, and to provide for the issuance of any
additional series of Securities, as permitted by Section 301, and
to set forth the terms thereof.
SECTION 1002. Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series
affected by such supplemental indenture (all such Holders voting
as a single class), by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of modifying in any manner the
rights of the Holders of Securities of each such series under
this Indenture; provided, however,
(1) that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected
thereby, change the Maturity or the principal of, or the Stated
Maturity of or the premium, if any, on or any installment of
interest on, any Security, or reduce the principal amount thereof
or any premium thereon or the interest thereon; and
(2) that no such supplemental indenture shall, without the
consent of the Holders of all of the Outstanding Securities of
each series affected:
(A) reduce the percentage of the principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(B) modify any of the provisions of this Section or Section
613, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding
Security of such series affected thereby or impair the right of
any Holder to institute suit under Section 608.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders
of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
SECTION 1003. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section
701) shall be fully protected in relying upon, an Officers'
Certificate and Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which adversely affects the
Trustee's own rights, duties or immunities under this Indenture
or otherwise.
SECTION 1004. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 1005. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the TIA as in effect on the
date of execution of such supplemental indenture.
SECTION 1006. Reference in Securities to Supplemental
Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and
shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE ELEVEN
COVENANTS
SECTION 1101. Payment of Principal, Premium and Interest.
With respect to each series of Securities, the Company will
duly and punctually pay the principal of, premium, if any, and
interest on the Securities of such series in accordance with the
terms of the Securities of such series and this Indenture.
SECTION 1102. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of
transfer or exchange, where Securities may be surrendered for
conversion and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of
any such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands. The Company
hereby initially appoints Chemical Bank and its successor from
time to time as "Security Registrar" for the purpose of
registering Securities and transfers of Securities as provided in
Article Three.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more
series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of
any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
SECTION 1103. Money for Security Payments to be Held in
Trust.
If the Company shall at any time act as its own Paying Agent
for any series of Securities, it will, on or before each due date
of the principal of, premium, if any, or interest on, any of the
Securities of such series, segregate and hold in trust for the
benefit of the Holders of Securities of such series a sum
sufficient to pay the principal, premium or interest so becoming
due until such sums shall be paid to such Holders or otherwise
disposed of as herein provided and will promptly notify the
Trustee of any failure so to act.
Whenever the Company shall have appointed one or more Paying
Agents for any series of Securities, it will, prior to each due
date of the principal of, premium, if any, or interest on, any
Securities of such series, deposit with a designated Paying Agent
a sum sufficient to pay the principal, premium or interest, so
becoming due, such sum to be held in trust for the benefit of the
Holders of Securities of such series, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the
Trustee of any failure so to act.
The Company will cause each Paying Agent other than the Trustee
for any series of Securities to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such
Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on Securities of such
series in trust for the benefit of the Holders of Securities of
such series until such sums shall be paid to such Holders or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of such series) in the
making of any payment of principal, premium or interest on the
Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to
the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent or
then held by the Company in trust for the payment of the
principal of, premium, if any, or interest on any Security of any
series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by
the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be
published once, in an Authorized Newspaper or mailed to the
registered Holder, if any, or both, notice that such money
remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication
or mailing, any unclaimed balance of such money then remaining
will be repaid to the Company.
Unless specified otherwise in the form of Security of any
series, the Company hereby appoints the Trustee as initial Paying
Agent with respect to Securities of each series.
SECTION 1104. Limitation on Liens.
(a) So long as the Securities shall remain Outstanding, the
Company will not at any time create, assume or guarantee, and
will not cause, suffer or permit a Restricted Subsidiary to
create, assume or guarantee, any Secured Debt without making
effective provision (and the Company covenants that in such case
it will make or cause to be made effective provision) whereby the
Securities of each series then Outstanding and any other
indebtedness of or guaranteed by the Company or such Restricted
Subsidiary then entitled thereto, subject to applicable
priorities of payment, shall be secured by such mortgage, pledge,
lien, security interest or encumbrance equally and ratably with
any and all other obligations and indebtedness which shall be so
secured; provided, however, that the foregoing covenants shall
not be applicable to the following:
(l)(a) any mortgage, pledge, lien, security interest or
encumbrance (collectively in this Article Eleven referred to as
"lien") on any property hereafter acquired or constructed by the
Company or a Restricted Subsidiary to secure or provide for the
payment of all or any part of the purchase price or construction
cost of such property, including, but not limited to, any
indebtedness incurred by the Company or a Restricted Subsidiary
prior to, at the time of, or within 365 days after the later of
the acquisition, the completion of construction (including any
improvements on an existing property) or the commencement of
commercial operation of such property, which indebtedness is
incurred for the purpose of financing all or any part of the
purchase price thereof or construction or improvements thereon;
or (b) the acquisition of property subject to any lien upon such
property existing at the time of acquisition thereof, whether or
not assumed by the Company or such Restricted Subsidiary; or (c)
any lien existing on the property or on the outstanding shares of
capital stock or indebtedness of a corporation at the time such
corporation shall become a Restricted Subsidiary; or (d) liens on
property or shares of capital stock or indebtedness of a
corporation existing at the time such corporation is merged into
or consolidated with the Company or a Restricted Subsidiary or at
the time of a sale, lease or other disposition of the properties
of a corporation or firm as an entirety or substantially as an
entirety to the Company or a Restricted Subsidiary; provided,
however, that no such lien shall extend to any other Principal
Property of the Company or such Restricted Subsidiary prior to
such acquisition or to other Principal Property thereafter
acquired other than (a) additions to such acquired property or
(b) other Principal Property which, together with such acquired
property, is part of a single construction or development
program;
(2) liens on property of the Company or a Restricted
Subsidiary in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any
State thereof, or in favor of any other country, or any
department, agency or instrumentality or political subdivision
thereof (including, without limitation, liens to secured
indebtedness of the pollution control or industrial revenue bond
type), in order to permit the Company or a Restricted Subsidiary
to perform any contract or subcontract made by it with or at the
request of any of the foregoing, or to secure partial, progress,
advance or other payments pursuant to any contract or statute or
to secure any indebtedness incurred for the purpose of financing
all or any part of the purchase price or the cost of constructing
or improving the property subject to such liens;
(3) any lien on any property or assets of any Restricted
Subsidiary to secured indebtedness owing by it to the Company or
to a Restricted Subsidiary;
(4) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
lien permitted by subsection (a) of this Section 1104; provided,
however, that the principal amount of Secured Debt secured
thereby shall not exceed the principal amount of Secured Debt so
secured at the time of such extension, renewal or replacement,
and that such extension, renewal or replacement shall be limited
to the property which secured the lien so extended, renewed or
replaced and additions or improvements to such property;
(5) the sale or other transfer of crude oil, natural gas or
other petroleum hydrocarbons in place for a period of time until,
or in an amount such that, the transferee will realize therefrom
a specified amount (however determined) of money or such crude
oil, natural gas or other petroleum hydrocarbons, or the sale or
other transfer of any other interest in property of the character
commonly referred to as a production payment or as an overriding
royalty.
(b) Notwithstanding the provisions of subsection (a) of
this Section 1104, the Company and any one or more Restricted
Subsidiaries may issue, assume or guarantee Secured Debt which
would otherwise be subject to the foregoing restrictions in an
aggregate amount which, together with all other Secured Debt of
the Company and its Restricted Subsidiaries which would otherwise
be subject to the foregoing restrictions (not including Secured
Debt permitted to be secured under subsection (a) above) and the
aggregate value of the Sale and Leaseback Transactions (as
defined in Section 1105) in existence at such time (not including
Sale and Leaseback Transactions the proceeds of which have been
or will be applied in accordance with Section 1105(b)), does not
exceed 10% of Consolidated Net Tangible Assets, determined as of
a date not more than 90 days prior thereto.
(c) In the event that the Company shall hereafter secure
the Securities of each series equally and ratably with any other
obligation or indebtedness pursuant to the provisions of this
Section 1104, the Trustee is hereby authorized to enter into an
indenture or agreement supplemental hereto and to take such
action, if any, as it may deem advisable to enable it to enforce
effectively the rights of the Holders of the Securities so
secured, equally and ratably with such other obligation or
indebtedness.
SECTION 1105. Sale and Leaseback Transactions.
So long as the Securities shall remain Outstanding, the Company
will not, and will not permit any Restricted Subsidiary to, sell
or transfer (except to the Company or one or more Restricted
Subsidiaries, or both) any Principal Property owned by it and in
full operation for more than 365 days with the intention of
taking back a lease on such Property (except a lease for a term
of no more than three years entered into with the intent that the
use by the Company or such Restricted Subsidiary of such property
will be discontinued on or before the expiration of such term)
(herein referred to as a "Sale and Leaseback Transaction") unless
either (a) the Company or such Restricted Subsidiary would be
entitled, pursuant to the provisions of Section 1104 hereof, to
incur Secured Debt equal in amount to the amount realized or to
be realized upon such sale or transfer secured by a lien on the
property to be leased without equally and ratably securing the
Securities, or (b) the Company or a Restricted Subsidiary shall
apply an amount equal to the value of the property so leased to
the retirement (other than any mandatory retirement), within 120
days of the effective date of any such arrangement, of Funded
Debt as shown on the most recent consolidated balance sheet of
the Company and which, in the case of such Funded Debt of the
Company, is not subordinate and junior in right of payment to the
prior payment of the Securities; provided, however, that in lieu
of applying all or any part of such amount to such retirement,
the Company may at its option (x) deliver to the Trustee
Securities theretofore purchased or otherwise acquired by the
Company, or (y) receive credit for Securities theretofore
redeemed at its option pursuant to Section 401 hereof, which
Securities have not theretofore been made the basis for the
reduction of a sinking fund payment pursuant to Section 408. If
the Company shall so deliver Securities to the Trustee (or
receive credit for Securities so delivered), the amount which the
Company shall be required to apply to the retirement of
indebtedness pursuant to this Section 1105 shall be reduced by an
amount equal to the aggregate principal amount of such
Securities.
The term "value" shall mean, with respect to a Sale and
Leaseback Transaction, as of any particular time, the amount
equal to the greater of (i) the Capitalized Rent with respect
thereto or (ii) the fair value of such property at the time of
entering into such Sale and Leaseback Transaction as determined
by the Board of Directors.
SECTION 1106. Annual Statement.
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, a certificate of the
principal accounting officer, principal financial officer or
principal executive officer of the Company stating that to the
best of the signer's knowledge, the Company has fulfilled all its
obligations under this Indenture throughout such year, or, if
there has been a default in the fulfillment of any such
obligation and such default is continuing, specifying each such
default of which such officer has knowledge, and the nature and
status thereof. For purposes of this Section 1106, default shall
be determined without regard to any grace period or requirement
of notice provided pursuant to the terms of this Indenture.
SECTION 1107. Waiver of Certain Covenants.
The Company may omit, in respect of any series of Securities,
in any particular instance to comply with any covenant or
condition set forth in Section 1104 and Section 1105, inclusive,
if before or after the time for such compliance the Holders of at
least a majority in principal amount of the Securities of such
series at the time Outstanding, shall, by Act of such Holders,
either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to
the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company shall remain in
full force and effect.
ARTICLE TWELVE
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1201. Purposes of Meetings.
A meeting of Holders of Securities of all or any series may be
called at any time and from time to time pursuant to the
provisions of this Article for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or
to give any directions to the Trustee, or to waive any default
hereunder and its consequences, or to take any other action
authorized to be taken by the Holders of Securities pursuant to
any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor Trustee
pursuant to the provisions of Article Seven;
(3) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the provisions of
Section 1002; or
(4) to take any other action authorized to be taken by or
on behalf of the Holders of any specified percentage in aggregate
principal amount of the Securities of all or any series, as the
case may be, under any other provision of this Indenture or under
applicable law.
SECTION 1202. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of Holders of
Securities of all or any series to take any action specified in
Section 1201, to be held at such time and at such place in The
City of New York, the Borough of Manhattan, as the Trustee shall
determine. Notice of every meeting of the Holders of Securities
of all or any series, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at
such meeting, shall be mailed, first-class postage prepaid, to
all Holders of Securities of each series that may be affected by
the action proposed to be taken at such meeting at their
addresses as they shall appear in the Security Register, no less
than 20 nor more than 60 days prior to the date fixed for the
meeting. Any meeting of Holders of Securities of all or any
series shall be valid without notice if the Holders of all such
Securities Outstanding, the Company and the Trustee are present
in person or by proxy or shall have waived notice thereof before
or after the meeting.
SECTION 1203. Call of Meetings by Company or Holders.
In case at any time the Company, by Board Resolution, or the
Holders of at least 10% in aggregate principal amount of the
Securities then Outstanding of each series that may be affected
by the action proposed to be taken at the meeting shall have
requested the Trustee to call a meeting of Holders of Securities
of all series that may be so affected to take any action
authorized in Section 1201 by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have mailed the notice of such meeting
within the time period specified under Section 1202, then the
Company or the Holders in the amount above specified may
determine the time and the place in The City of New York, the
Borough of Manhattan, for such meeting and may call such meeting
by mailing notice thereof as provided in Section 1202.
SECTION 1204. Qualifications for Voting.
To be entitled to vote at any meeting of Holders of Securities
a Person shall (a) be a Holder of one or more Securities of a
series affected by the action proposed to be taken, or (b) be a
Person appointed by an instrument in writing as proxy by the
Holder of one or more such Securities. The right of Holders of
Securities to have their votes counted shall be subject to the
proviso in the definition of "Outstanding" in Section 101. The
only Persons who shall be entitled to be present or to speak at
any meeting of Holders of Securities shall be the Persons
entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 1205. Quorum; Adjourned Meetings.
At any meeting of Holders of Securities, the presence of
Persons holding or representing Securities in an aggregate
principal amount sufficient to take action on the business for
the transaction of which such meeting was called shall be
necessary to constitute a quorum. No business shall be
transacted in the absence of a quorum unless a quorum is
represented when the meeting is called to order. In the absence
of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of the
Holders of Securities (as provided in Section 1203), be
dissolved. In any other case the Persons holding or representing
a majority in aggregate principal amount of the Securities
represented at the meeting may adjourn such a meeting for a
period of not less than 10 days with the same effect, for all
intents and purposes, as through a quorum had been present. In
the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be similarly further adjourned for a period
of not less than 10 days. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1202
except that such notice may be mailed not less than five days
prior to such date.
Any Holder of a Security who has executed an instrument in
writing complying with the provisions of Section 104 shall be
deemed to be present for the purposes of determining a quorum and
be deemed to have voted; provided, however, that such Holder
shall be considered as present or voting only with respect to the
matters covered by such instrument in writing.
Any resolution passed or decision taken at any meeting of the
Holders of Securities of any series duly held in accordance with
this Section shall be binding on all Holders of such series of
Securities whether or not present or represented at the meeting.
SECTION 1206. Regulations.
Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities, in regard to
proof of the holding of Securities and of the appointment of
proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall
think fit.
The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have
been called by the Company or by Holders of Securities as
provided in Section 1203, in which case the Company or the
Holders of Securities calling the meeting, as the case may be,
shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be
elected by vote of the Holders of a majority in principal amount
of the Securities represented at the meeting.
At any meeting each Holder of a Security of a series entitled
to vote at such meeting, or proxy therefor, shall be entitled to
one vote for each $1,000 principal amount of Securities of such
series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote except as a Holder of
Securities of such series or proxy therefor. Any meeting of
Holders of Securities duly called pursuant to the provisions of
Sections 1202 or 1203 at which a quorum is present may be
adjourned from time to time, and the meeting may be held as so
adjourned without further notice.
SECTION 1207. Voting Procedure.
The vote upon any resolution submitted to any meeting of
Holders of Securities shall be by written ballot on which shall
be subscribed the signatures of the Holders of Securities
entitled to vote at such meeting, or proxies therefor, and on
which shall be inscribed an identifying number or numbers or to
which shall be attached a list of identifying numbers of the
Securities so held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of
each meeting of Holders of Securities shall be prepared by the
secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more
Persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as
provided in Section 1202 and, if applicable, Section 1205. The
record shall be signed and verified by the permanent chairman and
secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
SECTION 1208. Written Consent in Lieu of Meetings.
The written authorization or consent by the Holders of the
requisite percentage in aggregate principal amount of Securities
of one or more series herein provided, entitled to vote at any
such meeting, evidenced as provided in Section 104 and filed with
the Trustee, shall be effective in lieu of a meeting of the
Holders of Securities of such series, with respect to any matter
provided for in this Article Twelve.
SECTION 1209. No Delay of Rights by Meeting.
Nothing in this Article contained shall be deemed or construed
to authorize or permit, by reason of any call of a meeting of
Holders of Securities of any or all series or any rights
expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or the Holders of
Securities of any or all such series under any provisions of this
Indenture or the Securities.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or
Covenant Defeasance.
The Company may elect, at its option by Board Resolution at any
time, to have either Section 1302 or Section 1303 applied to the
Outstanding Securities of any series designated pursuant to
Section 301 as being defeasible pursuant to this Article Thirteen
(hereinafter called "Defeasible Series"), upon compliance with
the conditions set forth below in this Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section
1301 to have this Section 1302 applied to the Outstanding
Securities of any Defeasible Series, the Company shall be deemed
to have been discharged from its obligations with respect to the
Outstanding Securities of such series as provided in this Section
on and after the date the conditions set forth in Section 1304
are satisfied (hereinafter called "Defeasance"). For this
purpose, such Defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have
satisfied all of its other obligations under the Securities of
such series and this Indenture insofar as the Securities of such
series are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of
Holders of Securities of such series to receive, solely from the
trust fund described in Section 1304 and as more fully set forth
in such Section, payments in respect of the principal of and any
premium and interest on such Securities of such series when
payments are due, (2) the Company's obligations with respect to
the Securities of such series under Section 304, 305, 306, 1102
and 1103, (3) the rights, powers, trusts, duties and immunities
of the Trustee hereunder, including, without limitation, Section
707, and (4) this Article Thirteen. Subject to compliance with
this Article Thirteen, the Company may exercise its option
provided in Section 1301 to have this Section 1302 applied to the
Outstanding Securities of any Defeasible Series notwithstanding
the prior exercise of its option provided in Section 1301 to have
Section 1303 applied to the Outstanding Securities of such
series.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section
1301 to have this Section 1303 applied to the Outstanding
Securities of any Defeasible Series: (i) the Company shall be
released from its obligations under Sections 1104 and 1105, and
(ii) the occurrence of any event specified in Sections 601(4)
(with respect to Sections 1104 and 1105), 601(5) and 601(8) shall
be deemed not to be or result in an Event of Default, in each
case with respect to the Outstanding Securities of such series as
provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means
that the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set
forth in any such specified Section (to the extent so specified
in the case of Section 601(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of
this Indenture and the Securities of such series shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance of Covenant Defeasance.
The following shall be the conditions to application of either
Section 1302 or Section 1303 to the Outstanding Securities of any
Defeasible Series:
(1) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee that
satisfies the requirements contemplated by Section 709 and agrees
to comply with the provisions of this Article Thirteen applicable
to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of Outstanding
Securities of such series, (A) money in an amount, or (B) U.S.
Government Obligations that through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (C) a combination
thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or any
such other qualifying trustee) to pay and discharge each
installment of principal (including mandatory sinking fund
payments) of, and premium (not relating to optional redemption),
if any, and interest on, the Outstanding Securities of such
series on the dates such installments of principal of, and
premium (not relating to optional redemption), if any, or
interest are due.
(2) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (A) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling or (B) since
the date first set forth hereinabove, there has been a change in
the applicable Federal income tax law, in either case (A) or (B)
to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of such series
will not recognize gain or loss for Federal income tax purposes
as a result of the deposit, Defeasance and discharge to be
effected with respect to the Securities of such series and will
be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee as Opinion of Counsel
to the effect that the Holders of the Outstanding Securities of
such series will not recognize gain or loss for Federal income
tax purposes as a result of the deposit and Covenant Defeasance
to be effected with respect to the Securities of such series and
will be subject to Federal income tax on the same amount, in the
same manner and at the same times as would be the case if such
deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Securities of such
series, if then listed on any securities exchange will not be
delisted as a result of such deposit.
(5) No Event of Default or event that (after notice or
lapse of time or both) would become an Event of Default shall
have occurred and be continuing at the time of such deposit or,
with regard to any Event of Default or any such event specified
in Sections 601(6) and (7), at any time on or prior to the 90th
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 90th
day).
(6) Such Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest within the meaning of
the Trust Indenture Act (assuming all Securities are in default
within the meaning of the such Act).
(7) Such Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or
by which it is bound.
(8) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent with respect to such Defeasance or
Covenant Defeasance have been complied with.
(9) Such Defeasance or Covenant Defeasance shall not result
in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of 1940,
as amended, unless such trust shall be qualified under such Act
or exempt from regulation thereunder.
(10) Such deposit pursuant to such Defeasance or Covenant
Defeasance will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement
or instrument to which the Company is a party or by which it is
bound.
SECTION 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions.
Subject to the provisions of the next to the last paragraph of
Section 1103, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or
other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred
to collectively as the "Trustee") pursuant to Section 1304 in
respect of the Securities of any Defeasible Series shall be held
in trust and applied by the Trustee, in accordance with the
provisions of the Securities of such series and this Indenture,
to the payment, either directly or through any such Paying Agent
(including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of Securities of such
series, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in
trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 1304 or the
principal and interest received in respect thereof other than any
such tax, fee or other charge that by law is for the account of
the Holders of Outstanding Securities.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 1304
with respect to Securities of any Defeasible Series that, in the
opinion of a nationally recognized firm of independent public
accountants expressed in written certification thereof delivered
to the Trustee, are in excess of the amount hereof that would
then be required to be deposited to effect as equivalent
Defeasance or Covenant Defeasance with respect to the Securities
of such series.
SECTION 1306. Reinstatement.
If the Trustee of the Paying Agent is unable to apply any money
in accordance with this Article Thirteen with respect to the
Securities of any series by reason of any order or judgement of
any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Securities of such
series shall be revived and reinstated as though no deposit had
occurred pursuant to this Article Thirteen with respect to
Securities of such series until such time as the Trustee or
Paying Agent is permitted to apply all money held intrust
pursuant to Section 1305 with respect to Securities of such
series in accordance with this Article Thirteen; provided,
however, that if the Company makes any payment of principal of or
any premium or interest on any Security of such series following
the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of Securities of such
series to receive such payment from the money so held in trust.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but
all such counterparts shall together constitute but one and the
same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
CBI INDUSTRIES, INC.
Corporate Seal By:________________________________
[Authorized Officer]
Attest:
By:________________________________
Its:_______________________________
CHEMICAL BANK, as Trustee
Corporate Seal By:________________________________
[Authorized Officer]
Attest:
By:____________________________
Its:___________________________
<PAGE>
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
On this _______ day of March, 1994 before me appeared
_________________________________________, to me personally
known, who, being by me duly sworn, did say that he is
_________________________________________ of CBI INDUSTRIES,
INC., one of the corporations described in and which executed the
instrument; that one of the seals affixed to said instrument is
the corporate seal of said corporation, and that said instrument
was signed and sealed on behalf of said corporation by authority
of its Board of Directors; and said _____________________________
acknowledged said instrument to be the free act and deed of said
corporation.
[NOTARIAL SEAL]
________________________________________
Notary Public
My Commission Expires _____________
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this ______ day of _______________, 1994 before me,
___________________________________, a Notary Public in and for
said State, residing therein, duly commissioned and sworn,
personally appeared __________________________________, known to
me to be a ______________________, and ______________________,
known to me to be a _______________________ of CHEMICAL BANK, a
New York corporation described in and that executed the within
instrument and also known to me to be the persons who executed
the within instrument on behalf of said corporation therein
named, and acknowledged to me that such corporation executed the
same pursuant to its By-Laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above
written.
[NOTARIAL SEAL]
________________________________________
Notary Public,
No. _________
Qualified in New York County
Commission Expires ________________
<PAGE>
STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
On this _____ day of_____, 1994 before me appeared
______________________________________, to me personally known,
who, being by me duly sworn, did say that he is ____________ of
CBI INDUSTRIES, INC., one of the corporations described in which
executed the instrument; that one of the seals affixed to said
instrument is the corporate seal of said corporation, and that
said instrument was signed and sealed on behalf of said
corporation by authority of its Board of Directors; and said
___________________________________ acknowledged said instrument
to be the free act and deed of said corporation.
[NOTARIAL SEAL]
________________________________________
Notary Public
My Commission Expires_________________
STATE OF NEW YORK )
) SS:
COUNTY OF NEW YORK )
On this ______ day of ____________________ , 1994 before me,
_______________________________________, a Notary Public in and
for said State, residing therein, duly commissioned and sworn,
personally appeared __________________________________________
known to me to be an __________________________, and
_____________________________, known to me to be an
_____________________________, of CHEMICAL BANK, a New York
corporation described in and that executed the within instrument
and also known to me to be the persons who executed the within
instrument on behalf of said corporation therein named, and
acknowledged to me that such corporation executed the same
pursuant to its By-Laws or a resolution of its Board of
Directors.
IN WITNESS WHEREOF, I have hereunto sent my hand and affixed my
official seal the day and year in this certificate first above
written.
[NOTARIAL SEAL]
________________________________________
Notary Public, State of New York
No. _____________________
Qualified in New York County
Commission Expires ____________________
EXHIBIT (5)
[CBI Letterhead]
March 18, 1994
Board of Directors
CBI Industries, Inc.
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
Re: CBI Industries, Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
I am General Counsel of CBI Industries, Inc., a Delaware
corporation ("CBI"), and have acted as such in connection with
the preparation of a Registration Statement on Form S-3 filed by
CBI with the Securities and Exchange Commission (the
"Commission") on March 18, 1994 (such registration statement
being hereinafter referred to as the "Registration Statement").
The Registration Statement relates to the registration under the
Securities Act of 1933, as amended (the "1933 Act"), of (i) debt
securities of CBI, consisting of debentures, notes and/or other
unsecured evidences of indebtedness in one or more series
(collectively, the "Debt Securities"), (ii) common stock, par
value $2.50 per share, of CBI (the "Common Stock"; references
herein to the "Common Stock" include any preferred stock purchase
rights associated with such Common Stock), and (iii) preferred
stock, par value $1.00 per share, of CBI in one or more series
(the "Preferred Stock"). The Debt Securities, the Common Stock
and the Preferred Stock are collectively referred to herein as
the "Securities".
The Securities are being registered for offering and sale on
a delayed or continuous basis pursuant to Rule 415 promulgated
under the 1933 Act. The aggregate offering price of the
Securities will not exceed $300,000,000. The Debt Securities are
to be issued under an Indenture (the "Indenture"), dated as of
March 1, 1994, between CBI, as issuer, and Chemical Bank, as
trustee.
In connection with this opinion, I have examined originals
or copies, certified or otherwise identified to my satisfaction,
of such documents as I have deemed necessary or appropriate as a
basis for the opinions set forth herein, including (i) the
Registration Statement, together with the prospectus forming a
part thereof (the "Prospectus"), (ii) the Indenture, included as
Exhibit 4(a) to the Registration Statement, (iii) the Certificate
of Incorporation and By-Laws of CBI, each as amended to date, and
(iv) copies of certain resolutions adopted by the Board of
Directors of CBI, relating to the issuance of the Securities, the
filing of the Registration Statement and any amendments or
supplements thereto and related matters.
In my examination, I have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals, the
conformity to original documents of all documents submitted to me
as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In
making my examination of documents executed by parties other than
CBI, I have assumed that such parties had the power, corporate or
other, to enter into and perform all obligations thereunder and
have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of
such documents and the validity and binding effect thereof.
In rendering the opinions expressed below, I express no
opinion as to the applicability or effect of any fraudulent
transfer or similar law on the Indenture or any transactions
contemplated thereby. I am admitted to the practice of law in
the State of Illinois, and I express no opinion as to the laws of
any other jurisdiction, other than the General Corporation Law of
the State of Delaware and the Federal laws of the United States
of America. The Securities may be issued from time to time on a
delayed or continuous basis, and this opinion is limited to the
laws as in effect on the date hereof.
Based upon and subject to the foregoing, I am of the opinion
that:
1. With respect to shares of the Common Stock, when (i)
the Registration Statement, as finally amended (including all
necessary post-effective amendments), becomes effective; (ii) an
appropriate supplement to the Prospectus with respect to such
shares has been prepared, delivered and filed in compliance with
the 1933 Act and the applicable rules and regulations thereunder;
(iii) the directors and appropriate officers of CBI have taken
all necessary corporate action to approve the issuance of such
shares and related matters; and (iv) certificates representing
such shares are duly executed, countersigned, registered and
delivered upon payment of the agreed-upon consideration therefor,
then such shares will be duly authorized, validly issued, fully
paid and nonassessable.
2. With respect to shares of the Preferred Stock, when (i)
the Registration Statement, as finally amended (including all
necessary post-effective amendments), becomes effective, (ii) an
appropriate supplement to the Prospectus with respect to such
shares has been prepared, delivered and filed in compliance with
the 1933 Act and the applicable rules and regulations thereunder,
(iii) the directors and appropriate officers of CBI have taken
all necessary corporate action to approve the issuance and terms
of such shares and related matters, including the adoption of a
Certificate of Designations relating to such Preferred Stock (the
"Certificate") and the filing of the Certificate with the
Secretary of State of the State of Delaware, and (iv)
certificates representing such shares are duly executed,
countersigned, registered and delivered upon payment of the
agreed-upon consideration therefor, then (a) such shares will be
duly authorized, validly issued, fully paid and nonassessable,
and (b) if applicable, the Common Stock issuable upon conversion
of such Preferred Stock will be duly authorized, validly issued,
fully paid and non-assessable, assuming the execution,
authentication, issuance and delivery of such Preferred Stock and
the conversion of such Preferred Stock in accordance with the
terms of the Certificate.
3. With respect to Debt Securities, when (i) the
Registration Statement, as finally amended (including all
necessary post-effective amendments), becomes effective, (ii) an
appropriate supplement to the Prospectus with respect to such
Debt Securities has been prepared, delivered and filed in
compliance with the 1933 Act and the applicable rules and
regulations thereunder, (iii) the directors and appropriate
officers of CBI have taken all necessary corporate action to
approve the issuance and terms of such Debt Securities, the
Conversion Securities (as defined below, if any) and related
matters, (iv) the Indenture pursuant to which such Debt
Securities are to be issued shall have been qualified under the
Trust Indenture Act of 1939, as amended, and duly executed and
delivered by CBI to the trustee under such Indenture, and (v)
such Debt Securities have been duly executed and authenticated in
accordance with the provisions of the Indenture and duly
delivered to the purchasers thereof upon payment of the agreed-
upon consideration therefor, then (1) such Debt Securities, when
issued and sold in accordance with the Indenture, will be valid
and binding obligations of CBI, enforceable against CBI in
accordance with their terms, except as such enforceability may be
subject to or limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally, (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding in equity or at law), (c) public
policy considerations which may limit the rights of parties to
obtain certain remedies, (d) requirements that a claim with
respect to any securities denominated other than in United States
dollars (or a judgment denominated other than in United States
dollars in respect of such claim) be converted into United States
dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law, and (e) governmental authority to
limit, delay or prohibit the making of payments outside the
United States or in foreign currency or composite currency,
(2) the Common Stock or other securities of CBI (the "Conversion
Securities"), if any, issuable upon conversion of such Debt
Securities will be validly issued, fully paid and nonassessable,
assuming the execution, authentication, issuance and delivery of
such Debt Securities and the conversion of such Debt Securities
in accordance with the terms of the Indenture relating thereto
and (3) the Common Stock or other securities of CBI, if any,
issuable upon conversion of such Conversion Securities will be
validly issued, fully paid and nonassessable, assuming the
execution, authentication, issuance and delivery of such
Conversion Securities and the conversion of such Conversion
Securities in accordance with the terms of the Certificate (or
other evidence of terms) relating thereto.
I hereby consent to the filing of this opinion with the
Commission as Exhibit 5 to the Registration Statement. I also
consent to the reference to me under the heading "Validity of
Securities" in the Registration Statement. In giving this
consent, I do not thereby admit that I am in the category of
persons whose consent is required under Section 7 of the 1933 Act
or the rules and regulations of the Commission.
Very truly yours,
/S/ Charles O. Ziemer
Charles O. Ziemer, General Counsel
EXHIBIT (12) (Page 1 of 2)
Ratio of Earnings to Fixed Charges and Preferred Stock Dividends
(Dollars in Thousands)
<TABLE>
<CAPTION>
Years Ended December 31,
1993 1992 1991 1990 1989
<S>
Earnings:
<C> <C> <C> <C> <C>
Income/(Loss) before Income Taxes $(2,235) $145,500 $136,965 $122,849 $ 87,036
Plus: Fixed Charges and Preferred Stock Dividends (Below) 55,473 49,268 53,842 64,619
64,717
Less: Capitalized Interest (5,935) (6,117) (725) (709)
(2,750)
Less: ESOP Debt Service Not Included in Pre-Tax
Income/(Loss) (8,744) (8,647) (8,383) (8,175)
(8,057)
Less: Equity Earnings from Unconsolidated Affiliates (1,480) (6,665) (7,259) (7,942)
(11,477)
Plus: Dividends Received from Unconsolidated Affiliates 4,624 8,052 10,393 26,381
11,380
Total Defined Earnings $41,703 $181,391 $184,833 $197,023 $140,849
Fixed Charges and Preferred Stock Dividends:
Interest Expense $28,380 $ 20,780 $ 30,568 $ 40,856 $ 40,185
Preferred Stock Dividends * 8,448 8,638 8,718 8,843 8,948
Less: Preferred Stock Dividends Used to Meet ESOP Debt
Service Requirements * (8,448) (8,638) (8,718) (8,843) (8,948)
Plus: Capitalized Interest 5,935 6,117 725 709 2,750
Plus: ESOP Interest 8,896 9,621 10,081 10,467 10,538
Plus: Interest within Rental Expense 12,262 12,750 12,468 12,587 11,244
Total Defined Fixed Charges and Preferred Dividends $55,473 $ 49,268 $ 53,842 $ 64,619 $
64,717
Ratio of Earnings to Fixed Charges and Preferred
Stock Dividends .75 to 1 3.68 to 1 3.43 to 1 3.05 to 1
2.18 to 1
* Dividends on the Series C preferred shares, which are held by the ESOP Trust, are used to meet ESOP
debt service requirements.
/TABLE
<PAGE>
EXHIBIT (12) (Page 2 of 2)
Ratio of Earnings to Fixed Charges
(Dollars in Thousands)
<TABLE>
<CAPTION>
Years Ended December 31,
1993 1992 1991 1990 1989
<S>
Earnings:
<C> <C> <C> <C> <C>
Income/(Loss) before Income Taxes $(2,235) $145,500 $136,965 $122,849 $ 87,036
Plus: Fixed Charges (Below) 55,473 49,268 53,842 64,619 64,717
Less: Capitalized Interest (5,935) (6,117) (725) (709)
(2,750)
Less: ESOP Debt Service Not Included in Pre-Tax
Income/(Loss) (8,744) (8,647) (8,383) (8,175)
(8,057)
Less: Equity Earnings from Unconsolidated Affiliates (1,480) (6,665) (7,259) (7,942)
(11,477)
Plus: Dividends Received from Unconsolidated Affiliates 4,624 8,052 10,393 26,381
11,380
Total Defined Earnings $41,703 $181,391 $184,833 $197,023 $140,849
Fixed Charges:
Interest Expense $28,380 $ 20,780 $ 30,568 $ 40,856 $ 40,185
Plus: Capitalized Interest 5,935 6,117 725 709 2,750
Plus: ESOP Interest 8,896 9,621 10,081 10,467 10,538
Plus: Interest within Rental Expense 12,262 12,750 12,468 12,587 11,244
Total Defined Fixed Charges $55,473 $ 49,268 $ 53,842 $ 64,619 $ 64,717
Ratio of Earnings to Fixed Charges .75 to 1 3.68 to 1 3.43 to 1 3.05 to 1
2.18 to 1
/TABLE
<PAGE>
EXHIBIT (23)(a)
CONSENT OF ARTHUR ANDERSEN & CO.
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our
reports dated February 17, 1994 included and incorporated by
reference in CBI Industries, Inc.'s Form 10-K for the year ended
December 31, 1993 and to all references to our Firm included in
this registration statement.
/S/ ARTHUR ANDERSEN & CO.
ARTHUR ANDERSEN & CO.
Chicago, Illinois,
March 18, 1994
EXHIBIT 25
_______________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal (Zip Code)
executive offices)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
CBI Industries, Inc.
(Exact name of obligor as specified in its charter)
Delaware 36-3009343
(State or other (I.R.S. employer
jurisdiction of identification No.)
incorporation or organization)
800 Jorie Boulevard
Oak Brook, Illinois 60521-2268
(Address of principal (Zip Code)
executive offices)
___________________________________________
Debt Securities
(Title of the indenture securities)
_____________________________________________________
<PAGE>
<PAGE>
GENERAL
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.
New York State Banking Department, State House, Albany, New
York 12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551 and Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C.,
20429.
(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.
None.
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, including the Organization Certificate and the
Certificates of Amendment dated February 17, 1969, August 31,
1977, December 31, 1980, September 9, 1982, February 28, 1985 and
December 2, 1991 (see Exhibit 1 to Form T-1 filed in connection
with Registration Statement No. 33-50010, which is incorporated
by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection
with Registration Statement No. 33-50010, which is incorporated
by reference).
3. None, authorization to exercise corporate trust powers
being contained in the documents identified above as Exhibits 1
and 2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration
Statement No. 33-46892, which is incorporated by reference).
6. The consent of the Trustee required by Section 321(b) of
the Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference).
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.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939
the Trustee, Chemical Bank, a corporation organized and existing
under the laws of the State of New York, has duly caused this
statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New
York and State of New York, on the 17th day of March, 1994.
CHEMICAL BANK
By /s/ James M. Foley
James M. Foley
Assistant Vice President
<PAGE>
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1993, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin $ 4,371
Interest-bearing balances 5,829
Securities 21,834
Federal Funds sold and securities
purchased under agreements to resell
in domestic offices of the bank and
of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold 2,125
Securities purchased under agreements
to resell 900
Loans and lease financing receivables:
Loans and leases, net of unearned
income $60,826
Less: Allowance for loan and lease
losses 2,326
Less: Allocated transfer risk
reserve 121
Loans and leases, net of unearned income,
allowance, and reserve 58,379
Assets held in trading accounts 8,556
Premises and fixed assets (including
capitalized leases) 1,238
Other real estate owned 713
Investments in unconsolidated subsidiaries
and associated companies 112
Customer's liability to this bank on
acceptance outstanding 1,063
Intangible assets 526
Other assets 9,864
TOTAL ASSETS $115,510
=========
LIABILITIES
Deposits
In domestic offices $ 51,611
Noninterest-bearing $ 19,050
Interest-bearing 32,561
In foreign offices, Edge and Agreement
subsidiaries, and IBF's 24,886
Noninterest-bearing $ 136
Interest-bearing 24,750
Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of
its Edge and Agreement subsidiaries,
and in IBF's
Federal funds purchased 8,496
Securities sold under agreements to
repurchase 514
Demand notes issued to the U.S. Treasury 1,501
Other Borrowed money 8,538
Mortgage indebtedness and obligations
under capitalized leases 20
Bank's liability on acceptances executed
and outstanding 1,084
Subordinated notes and debentures 3,500
Other liabilities 7,419
TOTAL LIABILITIES 107,569
EQUITY CAPITAL
Common stock 620
Surplus 4,501
Undivided profits and capital reserves 2,663
Less: Net unrealized loss on marketable
equity securities (159)
Cumulative foreign currency translation
adjustments (2)
TOTAL EQUITY CAPITAL 7,941
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL $115,510
==========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the
above-named bank, do hereby declare that this Report of
Condition is true and correct to the best of my knowledge
and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this statement of resources and liabilities. We
declare that it has been examined by us, and to the best
of our knowledge and belief has been prepared in confor-
mance with the instructions and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
