As filed with the Securities and Exchange Commission on May 18, 1999
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
Aon CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 36-3051915
(State of incorporation) (I.R.S. Employer Identification No.)
123 North Wacker Drive
Chicago, Illinois 60606
(312) 701-3000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Raymond I. Skilling, Executive Vice President and Chief Counsel
Aon Corporation
123 North Wacker Drive
Chicago, Illinois 60606
(312) 701-3000
(Name, address, including zip code, and telephone number, including area code,
of agent for service) Copy of communications to:
Dennis V. Osimitz, Esq.
Sidley & Austin
One First National Plaza
Chicago, Illinois 60603
(312) 853-7000
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Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective as determined by market
conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount To Offering Aggregate Amount of
Be Price Offering Registration
Title of Each Class of Securities To Be Registered Registered Per Unit Price (2)(3) Fee
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<S> <C>
Debt securities (4)............................... (1)
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Preferred stock, par value $1.00 per share (5).... (1)
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Common stock, par value $1.00 per share (6)....... (1)
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Total (7)......................................... $500,000,000 100% $500,000,000 $139,000
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<FN>
(1) The proposed maximum offering price per unit will be determined at various
times by the registrant in connection with the issuance by the registrant
of the securities registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated only for
the purpose of calculating the registration fee pursuant to Rule 457 under
the Securities Act of 1933, as amended. The aggregate public offering
price of the debt securities, preferred stock and common stock registered
hereby will not exceed $500,000,000 or the equivalent thereof in one or
more foreign currencies, foreign currency units or composite currencies.
(3) Exclusive of accrued interest, distributions and dividends, if any.
(4) Subject to note (7) below, there is being registered hereunder an
indeterminate principal amount of debt securities of Aon Corporation as
may be sold at various times.
(5) Subject to note (7) below, there is being registered hereunder an
indeterminate number of shares of preferred stock of Aon Corporation as at
various times may be issued at indeterminate prices. Includes preferred
stock which may be purchased by underwriters to cover over-allotments, if
any.
(6) Subject to note (7) below, there is being registered hereunder an
indeterminate number of shares of common stock of Aon Corporation as at
various times may be issued at indeterminate prices.
(7) In no event will the aggregate offering price of all securities issued at
various times pursuant to this registration statement exceed $500,000,000
or the equivalent thereof in one or more foreign currencies, foreign
currency units or composite currencies.
</FN>
</TABLE>
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Subject To Completion, Dated _____ __, 1999
Prospectus
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Aon CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
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We will describe the specific terms of these securities in one or more
supplements to this prospectus. You should read this prospectus and the
applicable supplements carefully before you invest.
Our executive offices are located at 123 North Wacker Drive, Chicago,
Illinois 60606, and our telephone number is (312) 701-3000.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
We may offer these securities in any of the following ways:
o directly to purchasers;
o through agents;
o through dealers; or
o through one or more underwriters or a syndicate of
underwriters in an underwritten offering.
Additional information on our plan of distribution can be found inside under
"Plan of Distribution." We will describe the plan of distribution for any
securities in the applicable prospectus supplements.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
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The date of this Prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
Page
----
About This Prospectus...................................................... 2
Where You Can Find More Information........................................ 2
The Company................................................................ 4
Use of Proceeds............................................................ 4
Selected Financial Data.................................................... 4
Ratios..................................................................... 5
Description of Debt Securities............................................. 5
Description of Preferred Stock and Common Stock............................ 15
Plan of Distribution....................................................... 17
Validity of Securities..................................................... 18
Experts.................................................................... 18
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement (No. 333- ) that we
filed with the Securities and Exchange Commission ("SEC") utilizing a "shelf"
registration process. Under this shelf process, we may offer up to $500,000,000
of the debt securities, preferred stock and common stock described in this
prospectus in one or more offerings. In this prospectus we will refer to the
debt securities, preferred stock and common stock collectively as the
"securities." This prospectus provides you with a general description of the
securities we may offer. Each time we offer securities, we will provide you with
a prospectus supplement and, if applicable, a pricing supplement. The prospectus
supplement and any applicable pricing supplement will describe the specific
terms of the securities being offered. The prospectus supplement and any
applicable pricing supplement may also add, update or change the information in
this prospectus. Please carefully read this prospectus, the applicable
prospectus supplement and any applicable pricing supplement, together with the
information contained in the documents referred to under the heading "Where You
Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements, and other
information with the SEC. You may read and copy any document we file with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549 or at the SEC's regional offices located at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and 7 World Trade
Center, Suite 1300, New York, New York 10048. You may obtain further information
on the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330. Our SEC filings are also available to the public over the
Internet at the SEC's Web site at http://www.sec.gov. In addition, you may
inspect our SEC filings at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, the Chicago Stock Exchange, 440 South LaSalle
Street, Chicago, Illinois 60605 and the London Stock Exchange, Old Broad Street,
London, England EC2N1HP. You may find additional information about Aon
Corporation and its subsidiaries at our Web site at http://www.aon.com.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with the SEC, which means that we can disclose important
information to you by referring you to those documents. Any information
referenced this way is considered to be part of this prospectus, and any
information that we file later with the SEC will automatically update and
supersede this information. We incorporate by reference the following documents
that we have filed with the SEC and any future filings that we make with the SEC
under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934
until we complete our sale of the securities to the public:
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o Annual Report on Form 10-K for the year ended December 31, 1998 (common
stock and per share data do not reflect the 3-for-2 stock split
effective May 17, 1999); see "Selected Financial Data" on Page 4 of
this Prospectus;
o Proxy statement for the 1999 Annual Meeting of Stockholders filed
March 8, 1999;
o Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
and
o The description of Aon Corporation's common stock contained in Item 12
of the registration statement on Form 10 filed on February 19, 1980
(when we were called Combined International Corporation), and any
amendment or report which we have filed (or will file after the date of
this prospectus and prior to the termination of this offering) for the
purpose of updating such description, including Aon Corporation's
Current Report on Form 8-K dated April 23, 1987.
This prospectus is part of a registration statement we have filed with the
SEC relating to the securities. As permitted by SEC rules, this prospectus does
not contain all of the information included in the registration statement and
the accompanying exhibits and schedules we file with the SEC. You may refer to
the registration statement and the exhibits and schedules for more information
about us and our securities. The registration statement and exhibits and
schedules are also available at the SEC's Public Reference Room or through its
Web site.
You may obtain a copy of these filings, at no cost, by writing to or
telephoning us at the following address:
Aon Corporation
123 North Wacker Drive
Chicago, Illinois 60606
Telephone (312) 701-3000
Attention: Corporate Secretary
You should rely only on the information incorporated by reference or
provided in this prospectus and the applicable prospectus supplement and in any
pricing supplement. We have not authorized anyone else to provide you with
different information. You should not assume that the information in this
prospectus, any applicable prospectus supplement or any pricing supplement is
accurate as of any date other than the date on the cover of the applicable
document. We are not making an offer of the securities in any state where the
offer or sale is not permitted.
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<PAGE>
THE COMPANY
Aon Corporation is an insurance services holding company for a family of
insurance brokerage, consulting and consumer insurance companies. Through its
insurance brokerage and other services and consulting operations, Aon
Corporation offers commercial insurance brokerage, alternative risk solutions,
risk management, employee benefit and human resources consulting and managing
general underwriting services. In addition, Aon Corporation's insurance
underwriting businesses provide a variety of insurance products, including
accident and health coverage, traditional life insurance and extended
warranties. Aon Corporation's revenues were $6.5 billion in 1998. Based on 1998
insurance brokerage and consulting revenues, management believes that the
Company is the second largest insurance brokerage company in the world.
USE OF PROCEEDS
Unless we state otherwise in the applicable prospectus supplement, we
expect to use the net proceeds from the sale of the securities for general
corporate purposes, including securities repurchase programs, capital
expenditures, working capital, repayment or reduction of long-term and
short-term debt and the financing of acquisitions. We may invest funds that we
do not immediately require in short-term marketable securities.
SELECTED FINANCIAL DATA
The dilutive and basic per share data and common stock data included
in "Selected Financial Data" in our Annual Report on Form 10-K for the year
ended December 31, 1998 is restated below to reflect the three-for-two stock
split effective May 17, 1999.
<TABLE>
<CAPTION>
SELECTED FINANCIAL DATA
1998 1997 1996 1995 1994
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<S> <C> <C> <C> <C> <C>
DILUTIVE PER SHARE DATA
Income from continuing operations
excluding special charges $ 2.07 $ 1.55 $ 1.33 $1.14 $1.01
Income from continuing operations 2.07 1.12 1.10 1.14 1.01
Discontinued operations - - 0.17 0.39 0.38
Net income 2.07 1.12 1.27 1.53 1.39
BASIC PER SHARE DATA
Income from continuing operations 2.11 1.14 1.11 1.15 1.02
Net income 2.11 1.14 1.29 1.55 1.41
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COMMON STOCK DATA
Dividends paid per share $ 0.73 $ 0.68 $ 0.63 $ 0.59 $ 0.56
Stockholders' equity per share 11.83 11.20 10.81 10.12 8.13
Price range 50 3/8-32 3/16 39 1/4-26 13/16 28 3/4-21 1/16 22 9/16-13 15/16 15 15/16-13
Market price at year-end 36.917 39.083 27.583 22.167 14.250
Common stockholders 12,294 12,698 13,030 13,520 14,163
Shares outstanding (in millions) 255.0 252.0 249.6 243.6 242.3
==================================================================================================================================
</TABLE>
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<PAGE>
RATIOS
Our ratios of earnings to fixed charges and of earnings to combined fixed
charges and preferred stock dividends for each of the periods indicated are as
follows:
<TABLE>
<CAPTION>
Fiscal Quarters
Ended March 31, Fiscal Year Ended December 31,
1999 1998 1998 1997 1996 1995 1994
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<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges 3.8 8.5 7.6 5.6 6.7 6.6 5.9
Ratio of earnings to fixed charges (1) 8.6 7.1 7.9
Ratio of earnings to combined fixed 2.5 5.5 5.1 3.3 4.9 4.5 3.7
charges and preferred stock dividends (2)
Ratio of earnings to combined fixed charges 5.7 4.2 5.8
and preferred stock dividends (1)
<FN>
(1) Reflects the exclusion of special charges from income from continuing
operations before provision for income taxes and minority interests for the
first quarter ended March 31, 1999 and for the years ended December 31, 1997 and
1996, respectively.
(2) Reflects the inclusion into total fixed charges and preferred stock
dividends for the first quarters ended March 31, 1999 and 1998 and for the years
ended December 31, 1998 and 1997 of $16 million, $16 million, $66 million and
$64 million, respectively, of pre-tax distributions on the 8.205% mandatorily
redeemable preferred capital securities which are classified as "minority
interest" on our condensed consolidated statements of operations.
</FN>
</TABLE>
For these ratios, earnings consist of income from continuing operations
before provision for income taxes and minority interests and before fixed
charges. Fixed charges include interest expense and that portion of rental
expense we deem to represent interest. Combined fixed charges and preferred
stock dividends include preferred stock dividend requirements, interest expense
and that portion of rental expense we deem to represent interest. Preferred
stock dividends consist of the pre-tax earnings required to pay dividends on all
preferred stock. Our earnings, fixed charges and preferred stock dividends
include the earnings, fixed charges and preferred stock dividends of Aon
Corporation and its subsidiaries considered as one enterprise.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of our debt
securities. When we offer to sell a particular series of debt securities, we
will describe the specific terms of the series in a supplement to this
prospectus. We will also indicate in the applicable prospectus supplement the
extent to which the general terms and provisions described in this prospectus
apply to a particular series of debt securities.
The debt securities we may offer pursuant to this prospectus will be
unsecured obligations of Aon Corporation and will be either senior or
subordinated debt. We will issue senior debt under an indenture dated as of
September 15, 1992, as may be supplemented, between us and The Bank of New York,
as the successor senior indenture trustee. We will issue subordinated debt under
an indenture to be dated as of a date before the first issuance of subordinated
debt, as may be supplemented, between us and U.S. Bank Trust National
Association, as the subordinated indenture trustee. The senior debt indenture
and the subordinated debt indenture are sometimes referred to in this prospectus
individually as an "indenture" and collectively as the "indentures" and the
senior indenture trustee and the subordinated indenture trustee are sometimes
referred to in this prospectus individually as a "trustee." We have summarized
selected provisions
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<PAGE>
of the indentures below. This is a summary and is not complete. It does not
describe certain exceptions and qualifications contained in the indentures or
the debt securities. If you would like more information on the provisions of
either of the indentures, you should read the more detailed provisions of the
applicable indenture, both of which have been incorporated by reference as
exhibits to the registration statement for the debt securities. In the summary,
we have included parenthetical references to the section numbers of the
applicable indenture so that you can easily locate those provisions.
GENERAL
The debt securities will be unsecured obligations of Aon Corporation. The
indentures do not limit the amount of debt securities that we may issue under
them. The indentures provide that we may issue debt securities from time to time
in one or more series. We have previously issued debt securities pursuant to the
senior debt indenture.
The debt securities issued under the senior debt indenture will be
unsecured obligations and will rank equally with each other and with all of our
other unsecured and unsubordinated indebtedness. The debt securities issued
under the subordinated debt indenture will be subordinate and junior in right of
payment, as more fully described in the subordinated debt indenture, to all of
our senior indebtedness. See "--Subordination under the Subordinated Debt
Indenture."
Because we are a holding company, the holders of the debt securities may
not receive assets of our subsidiaries in a liquidation or recapitalization
until the claims of our subsidiaries' creditors and insurance policyholders (in
the case of insurance subsidiaries) are paid, except to the extent that we may
have recognized claims against such subsidiaries. In addition, certain
regulatory laws limit some of our subsidiaries, including Combined Insurance
Company of America, from making payments to us of dividends and on loans and
other transfers of funds.
We will include in a supplement to this prospectus and any pricing
supplement the specific terms relating to the debt securities being offered.
These terms will include some or all of the following:
o the title of the debt securities and whether the debt securities
will be senior or subordinated debt;
o the total principal amount of the debt securities;
o the maturity date or dates of the debt securities;
o the interest rate or rates, if any (which may be fixed or
variable) and, if applicable, the method used to calculate the
interest rate;
o the date or dates from which interest will accrue and on which
interest will be payable and the dates used to determine the persons
to whom interest will be paid;
o the place or places where principal of, and any premium or
interest on, the debt securities will be paid;
o whether (and if so, when and under what terms and conditions) the
debt securities may be redeemed by us at our option or at the
option of the holders;
o whether there will be a sinking fund;
o if other than United States dollars and denominations of $1,000 or
any multiple of $1,000, the currency or currencies or currency unit
or currency units and denomination in which the debt securities will
be issued;
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<PAGE>
o if other than the principal amount, the portion of the principal
amount of the debt securities that we will pay upon acceleration
of the maturity date;
o whether we will issue the debt securities in registered or bearer
("unregistered") form or both;
o if we issue debt securities in unregistered form, any
restrictions on the exchange of one form for another and to the
offer, sale and delivery of such unregistered securities;
o whether and under what circumstances and conditions we will pay
additional amounts on the debt securities held by foreign persons in
respect of any tax, assessment or governmental charge imposed on
such holders with respect to the debt securities ("additional
amounts");
o whether we will issue the debt securities in certificated or
book-entry form;
o with respect to subordinated debt securities, whether they will be
convertible into shares of common stock and the terms and conditions
governing such conversion; and
o any other terms of the series being offered, so long as they are not
inconsistent with any provision of the applicable indenture.
(Section 2.01)
If we denominate the purchase price of a series of debt securities in a
foreign currency or currencies or a foreign currency unit or units, or if the
principal of, any premium and interest on, and any additional amounts with
respect to any series of debt securities is payable in a foreign currency or
currencies or a foreign currency unit or units, we will describe any special
United States federal income tax considerations in the applicable prospectus
supplement.
We will pay principal and any interest, premium and additional amounts in
the manner, at the places and subject to the restrictions set forth in the
indentures, the debt securities and the applicable prospectus supplement. We
will not impose a service charge for any transfer or exchange of debt
securities, but we may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed. (Section 2.05) Unregistered debt
securities and any related coupons will be transferable by delivery. (Section
2.05)
Unless otherwise indicated in the applicable prospectus supplement, we
will issue debt securities in fully registered form, without coupons, in
denominations of $1,000 or multiples of $1,000. (Sections 2.01 and 2.04)
We may offer to sell at a substantial discount below their stated
principal amount, debt securities bearing no interest or interest at a rate
that, at the time of issuance, is below the prevailing market rate. We will
describe any special United States federal income tax considerations applicable
to any of those discounted debt securities in the applicable prospectus
supplement.
We may offer to sell debt securities in which the principal or interest
will be determined by reference to one or more currency exchange rates,
commodity prices, equity indices or other factors. The principal amount or
payment of interest applicable to such debt securities may be greater than or
less than the amount of principal or interest otherwise payable, depending upon
the value of the applicable currency, commodity, equity index or other factor on
the date on which such principal or interest is due. We will set forth in the
applicable prospectus supplement information about the methods used to determine
the amount of principal or interest payable on any date, the currencies,
commodities, equity indices or other factors to which the amount payable on that
date is linked and certain additional tax considerations applicable to such debt
securities.
The senior debt indenture limits our ability to incur certain secured
indebtedness. See "--Limitation on Liens under Senior Indenture." The indentures
do not restrict our ability to incur unsecured indebtedness or, subject to the
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restrictions described in "--Consolidation and Merger," to engage in
reorganizations, restructurings, mergers, consolidations or similar transactions
that have the effect of increasing our indebtedness. Accordingly, unless we
state otherwise in the applicable supplement, the debt securities will not
contain any provisions that afford holders protection against us incurring such
indebtedness or engaging in certain reorganizations or transactions. As a
result, we could become highly leveraged.
LIMITATION ON LIENS UNDER SENIOR INDENTURE
Under the senior debt indenture we have agreed, among other things, to
not, directly or indirectly, create, issue, assume, incur or guarantee any
indebtedness for money borrowed which is secured by a mortgage, pledge, lien,
security interest or other encumbrance of any nature on any of the present or
future common stock of Combined Insurance Company of America, one of our
subsidiaries (or any company besides us having direct or indirect control of
such subsidiary). This restriction will not apply if we ensure that the debt
securities (together with, if we decide, any other indebtedness for money
borrowed by us then existing or thereafter created which is not subordinate to
the senior debt securities) will be secured equally and proportionately with
(or, at our option, prior to) such other secured indebtedness for as long as
such indebtedness is secured. (Section 4.05 of senior debt indenture)
EVENTS OF DEFAULT
With respect to any series of debt securities, "event of default" means
any of the following:
o we fail to pay the interest or any additional amount on any debt
security of that series when due and such failure continues for
30 days;
o we fail to pay the principal or any premium on any debt security
of that series when due;
o we fail to comply with any of our other agreements contained in the
applicable indenture and such failure continues for 90 days after
written notice is given to us of that failure from the applicable
trustee (or to us and such trustee from the holders of at least 25%
in principal amount of the outstanding debt securities of that
series);
o certain events of bankruptcy, insolvency or reorganization
relating to us; and
o any other event of default provided with respect to debt
securities of that series that is described in the applicable
prospectus supplement accompanying this prospectus. (Section
6.01)
If there is a continuing event of default with respect to any outstanding
series of debt securities, the applicable trustee or the holders of at least 25%
of the outstanding principal amount of the debt securities of that series may
require us to pay immediately the principal (or, if the debt securities of that
series are discount securities, that portion of the principal amount as may be
specified in the terms of that series) of and accrued and unpaid interest, if
any, on all debt securities of that series. However, at any time after such
trustee or the holders, as the case may be, declare such acceleration with
respect to debt securities of any series, but before the applicable person has
obtained a judgment or decree for payment of the money, the holders of a
majority in principal amount of the outstanding debt securities of that series
may, under certain conditions, cancel such acceleration if we have cured all
events of default (other than the non-payment of accelerated principal and
interest, if any) with respect to debt securities of that series or all such
events of default have been waived as provided in the applicable indenture.
(Section 6.01) For information as to waiver of defaults, see "--Modification and
Waiver." We refer you to the prospectus supplement relating to any series of
debt securities that are discount securities for the particular provisions
relating to acceleration of the maturity of a portion of the principal amount of
such debt securities triggered by an event of default.
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<PAGE>
Each indenture provides that, subject to the duties of the trustee to act
with the required standard of care if there is a continuing event of default,
the trustee need not exercise any of its rights or powers under the indenture at
the request or direction of any of the holders of debt securities, unless such
holders have offered to the trustee reasonably security or indemnity. (Section
6.04) Subject to such provisions for security or indemnification of each trustee
and certain other conditions, the holders of the majority in principal amount of
the outstanding debt securities of any series will have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the applicable trustee or exercising any trust or power such trustee holds with
respect to the debt securities of that series. (Section 6.06)
No holder of any debt security of any series will have any right to
institute any proceeding with respect to either indenture or for any remedy
under the applicable indenture unless:
o the applicable trustee has failed to institute such proceeding for
60 days after the holder has previously given to such trustee
written notice of a continuing event of default with respect to debt
securities of that series;
o the holders of at least 25% in principal amount of the outstanding
debt securities of that series have made written request, and
offered reasonable security or indemnity, to the applicable trustee
to institute such proceeding as trustee; and
o the applicable trustee has not received from the holders of a
majority in principal amount of the outstanding debt securities of
that series a direction inconsistent with such request.
(Section 6.04)
However, the holder of any debt security will have an absolute and unconditional
right to receive payment of the principal of, and any premium or interest on,
and any additional amounts with respect to, such debt security on or after the
date or dates they are to be paid as expressed in such debt security and to
institute suit for the enforcement of any such payment. (Section 6.04)
We are required to furnish to the each trustee annually a statement as to
the existence or absence of certain defaults under each indenture. (Section
4.06) Each indenture provides that the trustee need not provide holders of debt
securities of any series notice of any default (other than the non-payment of
principal or any premium, interest or additional amounts) if it considers it in
the interest of the holders of debt securities of that series not to provide
such notice. (Section 6.07)
CONSOLIDATION AND MERGER
Each indenture provides that we may consolidate with or merge into, or
transfer or lease our assets substantially as an entirety to, another person
without the consent of any debt security holders if, along with certain other
conditions in the indentures:
o the person (if other than us) formed by such consolidation or into
which we merge or which acquires or leases our assets is a
corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia and expressly
assumes our obligations on the debt securities and under the
applicable indenture; and
o after giving effect to such transaction, there is no event of
default, and no event which, after notice or passage of time or
both, would become an event of default. (Section 11.01)
DEFEASANCE
Defeasance and Discharge. Unless the debt securities of any series provide
otherwise, we may be discharged
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from any and all obligations in respect of the debt securities of that series
(except for certain obligations to register the transfer or exchange of debt
securities of that series, to replace stolen, destroyed, lost or mutilated debt
securities of that series, to maintain paying agencies, to compensate and
indemnify the applicable trustee or to furnish such trustee (if the trustee is
not the registrar) with the names and addresses of holders of debt securities of
that series). This discharge, referred to as defeasance, will occur only if:
o we irrevocably deposit with the applicable trustee, in
trust, money and/or securities of the government which
issues the currency in which the debt securities of that
series are payable or securities of agencies backed by the
full faith and credit of such government, which, through
the payment of interest and principal in accordance with
their terms, will provide enough money to pay each
installment of principal of, and any premium and interest
on, and any additional amounts and any mandatory sinking
fund payments in respect of, the debt securities of that
series on the applicable due dates for those payments in
accordance with the terms of those debt securities; and
o we deliver to the applicable trustee an opinion of counsel
confirming that the holders of the debt securities of that
series will not recognize income, gain or loss for United
States federal income tax purposes as a result of such
defeasance and will be subject to United States federal
income tax on the same amounts and in the same manner and
at the same times as would have been the case if the
discharge had not occurred.
That opinion must state that we have received from, or there has been published
by, the United States Internal Revenue Service a ruling or, since the date of
execution of the applicable indenture, there has been a change in the applicable
United States federal income tax law, in any case, in support of that opinion.
(Sections 13.03 and 13.04)
In addition, we may also obtain a discharge of either indenture with
respect to all debt securities issued under such indenture by depositing with
the applicable trustee, in trust, enough money to pay all amounts due on the
debt securities on the date such payments are due or upon redemption of all of
such debt securities, so long as such debt securities are by their terms to
become due and payable within one year or are to be called for redemption within
one year. (Section 12.01)
Defeasance of Certain Covenants and Certain Events of Default. Unless the
debt securities of any series provide otherwise, upon compliance with certain
conditions:
o we may omit to comply with the covenants described under
"---Limitation on Liens under Senior Indenture" (with respect to
senior debt securities) and "--Consolidation and Merger"; and
o any omission to comply with those covenants will not constitute an
event of default with respect to the debt securities of that series
("covenant defeasance"). (Sections 13.03 and 13.04)
The conditions include:
o depositing with the applicable trustee money and/or securities of
the government which issues the currency in which the debt
securities of that series are payable or securities of agencies
backed by the full faith and credit of such government, which,
through the payment of interest and principal in accordance with
their terms, will provide enough money to pay each installment of
principal of, any premium and interest on, and any additional
amounts and any mandatory sinking fund payments in respect of, the
debt securities of that series on the due dates for those payments
in accordance with the terms of those debt securities; and
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o delivering to the applicable trustee an opinion of counsel to the
effect that the holders of the debt securities of that series will
not recognize income, gain or loss for United States federal income
tax purposes as a result of the deposit and related covenant
defeasance and will be subject to United States federal income tax
on the same amounts and in the same manner and at the same times as
would have been the case if the deposit and related covenant
defeasance had not occurred. (Section 13.04)
Covenants Defeasance and Certain Other Events of Default. If we exercise
our option to effect a covenant defeasance with respect to the debt securities
of any series as described above and the debt securities of that series are
thereafter declared due and payable because of an event of default (other than
an event of default caused by failing to comply with the covenants that are
defeased), the amount of money and securities we have deposited with the
applicable trustee would be sufficient to pay amounts due on the debt securities
of that series on their respective due dates but may not be sufficient to pay
amounts due on the debt securities of that series at the time of acceleration
resulting from such event of default. However, we would remain liable for such
payments.
MODIFICATION AND WAIVER
Each indenture provides that we may enter into supplemental indentures
with the trustee without the consent of the holders of debt securities to:
o document the fact that a successor corporation has assumed our
obligations;
o add covenants or events of default for the protection of the
holders of debt securities,
o add or change provisions as are necessary to permit issuance of
global debt securities or unregistered securities and
exchangeability of such debt securities with registered securities,
o cure any ambiguity or correct any inconsistency in the indenture;
o document the fact that a successor trustee has been appointed; or
o establish the forms and terms of debt securities of any series.
(Section 10.01)
In addition, the subordinated debt indenture provides that we may enter
into a supplemental indenture with the trustee without the consent of the
holders of subordinated debt securities to provide for the terms and conditions
of conversion into common stock if such terms and conditions are different than
those provided in the subordinated debt indenture. (Section 10.01 of the
subordinated debt indenture)
We may modify either indenture with the consent of the trustee and holders
of at least a majority in principal amount of outstanding debt securities of
each series affected by such modification. However, we may not modify either
indenture without the consent of the holders of all then outstanding debt
securities of the affected securities to:
o change the due date of the principal of, or any installment of
principal of or interest on, or payment of additional amounts
with respect to, the debt securities of that series;
o reduce the principal amount of, or any premium or interest rate
on, or any additional amount with respect to, the debt securities
of that series;
o reduce the amount due and payable upon acceleration or make payments
thereon payable in any currency other than that provided in such
debt security;
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o impair the right to institute suit for the enforcement of any
such payment on or after it is due; or
o reduce the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is necessary
to effect any such modification or amendment of the indenture, for
waiver of compliance with certain covenants and provisions in the
indenture or for waiver of certain defaults.
(Section 10.02)
In the case of the subordinated debt indenture, no modification may adversely
affect the rights of any holder of senior indebtedness under the subordination
provisions of the subordinated debt indenture without the consent of such
holder. (Section 10.02 of the subordinated debt indenture)
The holders of a majority in aggregate principal amount of the outstanding
debt securities of any series issued under the senior debt indenture may on
behalf of the holders of all debt securities of that series waive, insofar as
that series is concerned, compliance by us with the restrictive covenant of the
senior debt indenture described above under "--Limitation on Liens under Senior
Indenture." (Section 4.07 of senior debt indenture) The holders of at least a
majority in principal amount of the outstanding debt securities of any series
may on behalf of the holders of all debt securities of that series waive any
past default under either indenture with respect to that series, except a
default in the payment of the principal of or any premium or any interest on,
any debt security of that series or in respect of a provision which under the
indenture cannot be modified or amended without the consent of the holder of
each outstanding debt security of that affected series. (Section 6.09)
GLOBAL SECURITIES
The registered debt securities of a series may be issued in the form of
one or more fully registered global securities (each, a "global security") that
will be deposited with The Depository Trust Company, New York, New York ("DTC")
or its nominee. This means that we will not issue certificates to each holder.
Each global security will be issued to DTC, who will keep a computerized record
of its participants (for example, your broker) whose clients have purchased debt
securities. The participant will then keep a record of its clients who purchased
the debt securities. Unless it is exchanged in whole or in part for a
certificate, a global security may not be transferred, except that DTC, its
nominees, and their successors may transfer a global security as a whole to one
another.
Beneficial interests in global securities will be shown on, and transfers
of global securities will be made only through, records maintained by DTC and
its participants. If you are not a participant in DTC, you may beneficially own
debt securities held by DTC only through a participant.
The laws of some states 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.
DTC has provided us the following information: DTC is a limited-purpose
trust company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the United States
Federal Reserve System, a "clearing corporation" within the meaning of the New
York Uniform Commercial Code and a "clearing agency" registered under the
provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants deposit with DTC. DTC also records the
settlement among participants of securities transactions, such as transfers and
pledges, in deposited securities through computerized records for participants'
accounts. This eliminates the need to exchange certificates. Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations.
DTC's book-entry system is also used by other organizations such as
securities brokers and dealers, banks and trust companies that work through a
participant. The rules that apply to DTC and its participants are on file with
the SEC.
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DTC is owned by a number of its participants and by the New York Stock
Exchange, Inc., The American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc.
We will wire principal and interest payments to DTC's nominee. We and the
trustee under each indenture will treat DTC's nominee as the owner of the global
securities for all purposes. Accordingly, we, each trustee and any paying agent
will have no direct responsibility or liability to pay amounts due on the global
securities to owners of beneficial interests in the global securities.
It is DTC's current practice, upon receipt of any payment of principal or
interest, to credit participants' accounts on the payment date according to
their respective holdings of beneficial interests in the global securities as
shown on DTC's records. In addition, it is DTC's current practice to assign any
consenting or voting rights to participants whose accounts are credited with
debt securities on a record date, by using an omnibus proxy. Payments by
participants to owners of beneficial interests in the global securities, and
voting by participants, will be governed by the customary practices between the
participants and owners of beneficial interests, as is the case with debt
securities held for the account of customers registered in "street name."
However, payments will be the responsibility of the participants and not of DTC,
either trustee or us.
So long as DTC or its nominee is the registered owner of a global
security, DTC or that nominee, as the case may be, will be considered the sole
owner or holder of the debt securities represented by that global security for
all purposes under the indentures. Except as set forth in the next paragraph,
owners of beneficial interests in a global security will not be entitled to have
the debt securities represented by that global security registered in their
names, will not receive or be entitled to receive physical delivery of the debt
securities in definitive form and will not be considered the owners or holders
of the debt securities under the indentures.
We will issue debt securities of any series then represented by global
securities in definitive form in exchange for those global securities if:
o DTC notifies us that it is unwilling or unable to continue as
depositary or if DTC ceases to be a clearing agency registered under
applicable law and a successor depositary is not appointed by us
within 90 days; or
o we determine not to require all of the debt securities of a
series to be represented by a global security.
If we issue debt securities in definitive form in exchange for a global
security, an owner of a beneficial interest in the global security will be
entitled to have debt securities equal in principal amount to the beneficial
interest registered in its name and will be entitled to physical delivery of
those debt securities in definitive form. Debt securities issued in definitive
form will, except as set forth in the applicable prospectus supplement, be
issued in denominations of $1,000 and any multiple of $1,000 in excess thereof
and will be issued in registered form only, without coupons.
The debt securities of a series may also be issued in the form of one or
more bearer global securities (a "bearer global security") that will be
deposited with a common depositary for Euroclear and CEDEL, or with a nominee
for such depositary identified in the applicable prospectus supplement relating
to such series. The applicable prospectus supplement will describe the specific
terms and procedures, including the specific terms of the depositary
arrangement, with respect to any portion of a series of debt securities to be
represented by a bearer global security.
SUBORDINATION UNDER THE SUBORDINATED DEBT INDENTURE
The subordinated debt securities issued under the subordinated debt
indenture will be subordinate and junior in right of payment to all senior
indebtedness to the extent provided in the subordinated debt indenture. (Section
14.03 of the subordinated debt indenture) We may not make any payments on
account of principal or any premium,
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redemption, interest or other amount on the subordinated debt securities at any
time when we have defaulted with respect to payment of principal or any premium,
interest, sinking fund or other payment due on the senior indebtedness. (Section
14.02 of the subordinated debt indenture) If we make any payment described in
the foregoing sentence under the subordinated debt indenture before all senior
indebtedness is paid in full, such payment or distribution will be applied to
pay off the senior indebtedness which remains unpaid. Subject to the condition
that the senior indebtedness is paid in full, if any such payments are made on
the senior indebtedness as described above, the subordinated debt security
holders will be subrogated to the rights of the senior debt security holders.
(Section 14.03 of the subordinated debt indenture)
The subordinated debt indenture defines the term "senior indebtedness" to
mean:
o all indebtedness of Aon Corporation, whether outstanding on the
date of the subordinated debt indenture or created later, for
money borrowed or otherwise evidenced by a note or similar
instrument given in connection with the acquisition of any
business, property or assets (other than inventory or other
similar property acquired in the ordinary course of business),
including securities or for the payment of money relating to a
capitalized lease obligation (as defined in the subordinated debt
indenture);
o any indebtedness of others described in the preceding bullet
point which we have guaranteed or which is otherwise our legal
obligation;
o any of our indebtedness under interest rate swaps, caps or similar
hedging agreements and foreign exchange contracts, currency swaps or
similar agreements; and
o renewals, extensions, refundings, restructurings, amendments and
modifications of any indebtedness or guarantee described above.
(Section 1.01 of subordinated debt indenture)
"Senior indebtedness" does not include:
o any of our indebtedness to any of our subsidiaries; or
o any of our indebtedness which by its terms is equal or
subordinated to the subordinated debt securities in rights of
payment or upon liquidation. (Section 1.01 of subordinated debt
indenture)
Because of the subordination provisions described above, some of our
general creditors may recover proportionately more than holders of the
subordinated debt securities if our assets are distributed as a result of
insolvency or bankruptcy. The subordinated debt indenture provides that the
subordination provisions will not apply to money and securities held in trust
pursuant to the satisfaction and discharge and the legal defeasance provisions
of the subordinated debt indenture. (Section 14.03 of the subordinated debt
indenture) See "-- Defeasance.
We will set forth (or incorporate by reference) the approximate amount of
senior indebtedness outstanding as of a recent date in any prospectus supplement
under which we offer to sell subordinated debt securities.
CONVERSION RIGHTS
We will include in a supplement to this prospectus the terms and
conditions, if any, on which debt securities being offered are convertible into
common stock. Such terms will include the conversion price, the conversion
period, provisions as to whether conversion will be at our option or the option
of the holder, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of such debt
securities.
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REGARDING THE TRUSTEES
We have commercial deposits and custodial arrangements with the senior
indenture trustee and have borrowed money from such trustee in the normal course
of business. We also have commercial deposits with the subordinated indenture
trustee. In addition, we have provided brokerage and other insurance services in
the ordinary course of their respective businesses for each trustee. The senior
indenture trustee is also trustee with respect to other debt securities we have
issued.
DESCRIPTION OF PREFERRED STOCK AND COMMON STOCK
Our second restated certificate of incorporation, as amended, authorizes
us to issue 300,000,000 shares of common stock, par value $1.00 per share, and
25,000,000 shares of serial preferred stock, par value $1.00 per share. In
general, any series of preferred stock is afforded preferences regarding
dividends and liquidation rights over the common stock. The second restated
certificate of incorporation, as amended, empowers the board of directors of Aon
Corporation, without approval of the stockholders, to cause preferred stock to
be issued in one or more series, with the numbers of shares of each series and
the rights, preferences and limitations of each series to be determined by it.
The description set forth below is only a summary and is not complete. For more
information regarding the preferred stock and common stock which may be offered
by this prospectus, please refer to the applicable prospectus supplement and our
second restated certificate of incorporation, as amended, which is incorporated
by reference as an exhibit to the registration statement. In addition, a more
detailed description of the common stock may be found in the documents referred
to in the fourth bullet point in the second paragraph of "Where You Find More
Information."
Because we are a holding company, the holders of the preferred and common
stock may not receive assets of our subsidiaries in a liquidation or
recapitalization of the subsidiaries until the claims of our subsidiaries'
creditors and insurance policyholders (in the case of insurance subsidiaries)
are paid, except to the extent that we may have recognized claims against such
subsidiaries. In addition, certain regulatory laws limit some of our
subsidiaries from making payments to us of dividends and on loans and other
transfers of funds.
PREFERRED STOCK
We will in include in a supplement to this prospectus the terms relating
to the preferred stock being offered. These terms will include some or all of
the following:
o the number of shares;
o the designation of the series;
o the initial offering price;
o any liquidation preference per share;
o any dividend rights and the specific terms relating thereto;
o whether and upon what terms the shares will be redeemable;
o whether and upon what terms the shares will have a sinking fund
to be used to purchase or redeem the shares of any series;
o whether and upon what terms the shares will be convertible;
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o the relative priority of such shares to other classes or series
of preferred stock with respect to rights and preferences;
o any provisions for the auction or remarketing of the preferred
stock;
o the restrictions, if any, on the issue or reissue of any additional
preferred stock, including increases or decreases in the number of
shares of any series subsequent to the issue of shares of that
series;
o any voting rights;
o whether or not the shares are or will be listed on any securities
exchange;
o any additional terms, preferences, rights, limitations or
restrictions applicable to the shares; and
o a discussion of Federal income tax considerations applicable to
the shares.
COMMON STOCK
We will include in a supplement to this prospectus the terms relating to
the common stock being offered, including the number of shares offered, the
initial offering price, market price and dividend information.
Common stock holders will receive dividends as may be declared at various
times by the board of directors out of funds legally available for that purpose.
Common stock holders are entitled to one vote per share on all matters submitted
to a vote of stockholders and do not have cumulative voting rights. Common stock
holders will receive, upon any liquidation of Aon Corporation, all remaining
assets available for distribution to stockholders after we satisfy our
liabilities relating to, and make payments in respect of preferential
obligations of, any preferred stock that may then be issued and outstanding.
Common stock holders have no preemptive rights. The common stock is listed on
the New York, Chicago and London Stock Exchanges. First Chicago Trust Company is
the registrar and transfer agent for the common stock.
CERTAIN ANTI-TAKEOVER PROVISIONS
Our second restated certificate of incorporation, as amended, contains
provisions, summarized below, that could have the effect of delaying, deferring
or preventing a change of control of Aon Corporation. Because this is a summary,
it does not contain all of the information that may be important to you. You
should read carefully the provisions of our second restated certificate of
incorporation, as amended, as well as the provisions of any applicable laws.
Our second restated certificate of incorporation, as amended, provides
that the approval of a voluntary liquidation or dissolution of Aon Corporation
and certain business combinations (including mergers, consolidations, sales,
leases and exchanges), requires the affirmative vote of at least two-thirds of
all of the securities of Aon Corporation then entitled to vote at a meeting of
stockholders, considered as one class. Our second restated certificate of
incorporation, as amended, also permits our board of directors, in response to
certain acquisition proposals (including tender or exchange offers, mergers,
consolidations and sales), to consider not only the best interests of the
stockholders, but also such other factors as the board of directors deems
relevant, including social, legal and economic effects upon employees, field
sales agents, suppliers, customers, policyholders and business. In addition,
unless the board of directors decides otherwise with respect to any series of
preferred stock, stockholders may not take any action by written consent if such
action is the type that must or may be taken at any annual or special meeting of
stockholders.
Under Section 203 of the Delaware General Corporation Law, we may not
engage in certain business combinations (as defined in such section) with any
interested stockholders (as defined therein) for a period of three years
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following the date that such stockholder became an interested stockholder,
unless:
o prior to such date our board of directors approved the business
combination with the interested stockholder;
o the interested stockholder owned at least 85% of our voting stock
upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder; or
o the business combination is approved by the affirmative vote of
at least two-thirds of the outstanding voting stock.
Our board of directors has adopted a resolution making the provisions of Section
203 inapplicable to transactions involving Mr. Patrick G. Ryan, our Chairman and
Chief Executive Officer. In addition, the insurance laws and regulations of the
jurisdictions in which our subsidiaries do business may impede or delay a
business combination involving Aon Corporation.
PLAN OF DISTRIBUTION
We may sell the securities in any of the following ways:
o directly to purchasers;
o through agents;
o through dealers; or
o through one or more underwriters or a syndicate of
underwriters in an underwritten offering.
The applicable prospectus supplement will set forth the names of any
underwriters or agents involved in the sale of the securities being offered and
any applicable commissions or discounts.
Underwriters, dealers or agents may offer and sell the securities at a fixed
price or prices, which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices or at negotiated prices. In connection with the sale of the securities,
underwriters or agents may be deemed to have received compensation from us in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of the securities for whom they may act as agent.
Underwriters or agents may sell the securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters or commissions from the purchasers for whom
they may act as agent.
If we do not list the securities being offered on a national securities
exchange, any underwriters or agents to or through whom such securities are sold
by us for public offering and sale may make a market in such securities, but
such underwriters or agents will not be obligated to do so and may discontinue
any market making at any time without notice. We give no assurances as to the
liquidity of the trading market for any of the securities being offered.
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Any underwriters, dealers or agents participating in the distribution of the
securities may be deemed to be underwriters and any discounts and commissions
received by them and any profit realized by them on resale of the securities may
be deemed to be underwriting discounts and commissions under the Securities Act
of 1933. We may enter into agreements with underwriters, dealers or agents under
which we agree to indemnify against, or contribute payments made in respect of,
certain civil liabilities incurred by such persons, including liabilities under
the Securities Act of 1933.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters or agents to solicit offers by certain institutions to purchase
securities from us pursuant to contracts providing for payment and delivery on a
future date. These contracts may be made with commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must be
approved by us. The obligations of any purchaser under any such contract will be
subject to the condition that the purchase of the securities is at the time of
delivery not prohibited under the laws of the jurisdiction to which such
purchaser is subject. The underwriters and such other persons will not have any
responsibility in respect of the validity or performance of such contracts.
VALIDITY OF SECURITIES
The validity of the securities will be passed upon for us by Jerome S.
Hanner, our Senior Counsel and Assistant Secretary. As of May 17, 1999 Mr.
Hanner owned 7,011 shares of Aon Corporation common stock and held restricted
stock awards of 37,800 shares. In addition, 2008 shares of Aon Corporation
common stock held by its employee stock ownership plan was attributable to Mr.
Hanner.
EXPERTS
The consolidated financial statements of Aon Corporation incorporated by
reference in Aon Corporation's Annual Report (Form 10-K) for the year ended
December 31, 1998, have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon incorporated by reference therein and
incorporated herein by reference. Such consolidated financial statements are
incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
With respect to the unaudited condensed consolidated interim financial
information for the three-month periods ended March 31, 1999 and March 31, 1998,
incorporated by reference in this prospectus, Ernst & Young LLP have reported
that they have applied limited procedures in accordance with professional
standards for a review of such information. However, their separate report,
included in Aon Corporation's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999, and incorporated herein by reference, states that they did
not audit and they do not express an opinion on that interim financial
information. Accordingly, the degree of reliance on their report on such
information should be restricted considering the limited nature of the review
procedures applied. The independent auditors are not subject to the liability
provisions of Section 11 of the Securities Act of 1933 for their report on the
unaudited interim financial information because that report is not a "report" or
a "part" of the registration statement prepared or certified by the auditors
within the meaning of Sections 7 and 11 of the Securities Act of 1933.
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II-10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Securities and Exchange Commission registration fee.......... $139,000
Accounting fees.............................................. 50,000
Trustee's fees and expenses.................................. 3,000
Printing, distribution, and engraving fees................... 30,000
Rating agency fees........................................... 260,000
Legal fees and expenses...................................... 50,000
State qualification fees and expenses ....................... 5,000
Miscellaneous................................................ 13,000
---------
Total................................................. $550,000
=========
*All amounts are estimated except for the Securities and Exchange
Commission registration fee.
Item 15. Indemnification of Directors and Officers.
The registrant was organized under and is subject to the Delaware General
Corporation Law. Delaware law provides that officers and directors may receive
indemnification from their corporations for certain actual or threatened
lawsuits. The Delaware law sets out the standard of conduct which the officers
and directors must meet in order to be indemnified, the parties who are to
determine whether the standard has been met, and the types of expenditures which
will be indemnified. Delaware law further provides that a corporation may
purchase indemnification insurance, such insurance providing indemnification for
the officers and directors whether or not the corporation would have the power
to indemnify them against such liability under the provisions of Delaware law.
The registrant has adopted an article within its second restated certificate
of incorporation, as amended, which provides that it will indemnify its officers
and directors to the full extent permitted by Delaware law.
Furthermore, the registrant is covered by insurance which will reimburse it
within the policy limits for amounts it is obligated to pay in lawsuits
involving officers and directors serving in such capacities in which the
damages, judgments, settlements, costs, charges or expenses incurred in
connection with the defense of the action, suit or proceeding are reimbursable
pursuant to the law and the second restated certificate of incorporation, as
amended.
The registrant expects that any underwriting agreement or distribution
agreement relating to the securities will provide for indemnification of
directors and officers of the registrant by the underwriters or agents, as the
case may be, against certain liabilities.
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ITEM 16. EXHIBITS.
Exhibits marked with an asterisk (*) are incorporated by reference to
documents previously filed by the registrant with the Securities and Exchange
Commission, as indicated. All other documents listed are or will be filed with
this registration statement.
NUMBER DESCRIPTION
1(a) Form of Underwriting Agreement.
*3(a) Second Restated Certificate of Incorporation of
the registrant -incorporated by reference to
Exhibit 3(a) to the registrant's Annual Report on
Form 10-K for the year ended December 31, 1991,
file no.
1-7933.
*3(b) Certificate of Amendment of the registrant's
Second Restated Certificate of Incorporation --
incorporated by reference to Exhibit 3 to the
registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31,
1994, file no. 1-7933.
*3(c) By-laws of the registrant. -- incorporated by
reference to Exhibit (d) to the registrant's
Annual Report on Form 10-K for the year ended
December 31, 1982, file no. 1-7933.
*4(a) Certificate of Designation for the registrant's
Series C Cumulative Preferred Stock - incorporated
by reference to Exhibit 4.1 to the registrant's
Current Report on Form 8-K dated February 9, 1994,
file no.
1-7944.
*4(b) Indenture dated September 15, 1992 between the
registrant and The Bank of New York (successor to
Continental Bank, National Association which is
now known as Bank of America National Trust and
Savings Association), as trustee, relating to the
registrant's senior debt securities -incorporated
by reference to Exhibit 4(a) to the registrant's
Current Report on Form 8-K dated September 23,
1992, file no. 1-7933.
*4(c) Form of senior debt securities -- incorporated by
reference to Exhibit 4(b) to the registrant's
Current Report on Form 8-K dated September 23,
1992, file no.
1-7933.
*4(d) Resolutions establishing terms of 6.875% Notes Due
1999 and 7.40% Notes Due 2002 -- incorporated by
reference to Exhibit 4(d) to the registrant's
Annual Report on Form 10-K for the year ended
December, 31,
1992, file no. 1-7933.
*4(e) Resolutions establishing the terms of 6.70% Notes
Due 2003 and 6.30% Notes Due 2004 -- incorporated
by reference to Exhibits 4(c) and 4(d) of the
registrant's Annual report on Form 10-K for the
year ended December 31, 1993, file no. 1-7933.
4(f) Form of Indenture relating to the Company's
subordinated debt securities.
II-2
<PAGE>
4(g) Form of subordinated debt securities. The form or
forms of the subordinated debt securities with
respect to each particular offering will be filed
as an exhibit subsequently included or
incorporated by reference herein.
*4(h) Junior Subordinated Indenture dated as of January
13, 1997 between the registrant and The Bank of
New York, as trustee -- incorporated by reference
to Exhibit 4.1 of the registrant's Amendment No. 1
to Registration Statement on Form S-4 No.
333-21237 dated March 27, 1997 (the "Capital
Securities Registration").
*4(i) First Supplemental Indenture dated as of January
13, 1997 between the registrant and the Bank of
New York, as trustee -- incorporated by reference
to Exhibit 4.2 of the Capital Securities
Registration.
*4(j) Certificates of Trust of Aon Capital A --
incorporated by reference to Exhibit 4.3 of the
Capital Securities Registration.
*4(k) Amended and Restated Trust Agreement of Aon
Capital A dated as of January 13, 1997 among the
registrant, as depositor, The Bank of New York, as
property trustee, The Bank of New York (Delaware),
as Delaware trustee, the administrative trustees
named therein and the holders, from time to time,
of the capital securities -- incorporated by
reference to Exhibit 4.5 of the Capital Securities
Registration.
*4(l) Capital Securities Guarantee Agreement dated as of
January 13, 1997 between the registrant and The
Bank of New York, as guarantee trustee --
incorporated by reference to Exhibit 4.8 of the
Capital Securities
Registration.
*4(m) Capital Securities Exchange and Registration
Rights Agreement dated as of January 13, 1997
among the registrant, Aon Capital A and Morgan
Stanley & Co. Incorporated and Goldman, Sachs &
Co. -- incorporated by reference to Exhibit 4.10
of the Capital Securities Registration.
*4(n) Debenture Exchange and Registration Rights
Agreement dated as of January 13, 1997 among the
registrant, Aon Capital A and Morgan Stanley & Co.
Incorporated and Goldman, Sachs & Co. --
incorporated by reference to Exhibit 4.11 of the
Capital Securities Registration.
*4(o) Guarantee Exchange and Registration Rights
Agreement dated as of January 13, 1997 among the
registrant, Aon Capital A and Morgan Stanley & Co.
Incorporated and Goldman, Sachs & Co. --
incorporated by reference to Exhibit 4.12 of the
Capital Securities Registration.
5 Opinion of Jerome S. Hanner, Senior Counsel and
Assistant Secretary of the registrant.
*12(a) Statement of computation of ratio of earning to
fixed charges --
II-3
<PAGE>
incorporated by reference to Exhibit 12(a) to the
registrant's Annual Report on Form 10-K for the
year ended December 31, 1998 (the "1998 Form
10-K") and to Exhibit 12(a) to the registrant's
Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999 (the "1999 First Quarter Form
10-Q"), file no. 1-7944.
*12(b) Statement of computation of ratio of earnings to
combined fixed charges and preferred stock
dividends -- incorporated by reference to Exhibit
12(b) to the 1998 Form 10-K and to Exhibit 12(b)
to the 1999 First Quarter Form 10-Q, file no.
1-7944.
23(a) Consent of Jerome S. Hanner (included in Exhibit
5).
23(b) Consent of Ernst & Young LLP.
23(c) Acknowledgment of Ernst & Young LLP.
24 Powers of Attorney.
25(a) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act of
1939 of The Bank of New York relating to the
senior debt securities.
25(b) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act of
1939 of U.S. Bank Trust National Association
relating to the subordinated debt securities.
ITEM 17. UNDERTAKINGS.
The registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
II-4
<PAGE>
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing this registration statement on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Chicago, State of
Illinois, as of May 18, 1999.
Aon CORPORATION
By: *
--------------------------------
Patrick G. Ryan
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities indicated as of May 18, 1999.
SIGNATURE TITLE
--------- -----
* Chairman and Chief Executive
---------------------------- Officer and Director
Patrick G. Ryan (Principal Executive Officer)
*
---------------------------- Director
Daniel T. Carroll
*
---------------------------- Director
Franklin A. Cole
*
---------------------------- Director
Edgar D. Jannotta
*
---------------------------- Director
Lester B. Knight
*
---------------------------- Director
Perry J. Lewis
*
---------------------------- Director
Andrew J. McKenna
*
---------------------------- Director
Newton N. Minow
*
---------------------------- Director
Richard C. Notebaert
II-6
<PAGE>
* President and Chief Operating
---------------------------- Officer
Michael D. O'Halleran and Director
*
---------------------------- Director
Donald S. Perkins
*
---------------------------- Director
John W. Rogers, Jr.
*
---------------------------- Director
George A. Schaefer
/s/ RAYMOND I. SKILLING
---------------------------- Director
Raymond I. Skilling
*
---------------------------- Director
Fred L. Turner
*
---------------------------- Director
Arnold R. Weber
*
---------------------------- Director
Carolyn Y. Woo
* Executive Vice President and
---------------------------- Chief Financial Officer
Harvey N. Medvin (Principal Financial and Accounting
Officer)
* By: /s/ RAYMOND I. SKILLING
----------------------------
Raymond I. Skilling
Attorney-in-Fact
II-7
<PAGE>
EXHIBIT INDEX
TO REGISTRATION STATEMENT
ON FORM S-3
Aon CORPORATION
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
- -------------- ----------------------
1(a) Form of Underwriting Agreement.
*3(a) Second Restated Certificate of Incorporation of
the registrant -- incorporated by reference to
Exhibit 3(a) to the registrant's Annual Report on
Form 10-K for the year ended December 31,
1991, file no. 1-7933.
*3(b) Certificate of Amendment of the registrant's
Second Restated Certificate of Incorporation
-incorporated by reference to Exhibit 3 to the
registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1994, file no.
1-7933.
*3(c) By-laws of the registrant. -- incorporated by
reference to Exhibit (d) to the registrant's
Annual Report on Form 10-K for the year ended
December 31, 1982, file no. 1-7933.
*4(a) Certificate of Designation for the registrant's
Series C Cumulative Preferred Stock incorporated
by reference to Exhibit 4.1 to the registrant's
Current Report on Form 8-K dated February 9, 1994,
file no. 1-7944.
*4(b) Indenture dated September 15, 1992 between the
registrant and The Bank of New York (successor to
Continental Bank, National Association which is
now known as Bank of America National Trust and
Savings Association), as trustee, relating to the
registrant's senior debt securities --
incorporated by reference to Exhibit 4(a) to the
registrant's Current Report on Form 8-K dated
September 23, 1992, file no. 1-7933.
*4(c) Form of senior debt securities -- incorporated
by reference to Exhibit 4(b) to the
registrant's Current Report on Form 8-K dated
September 23, 1992, file no. 1-7933.
*4(d) Resolutions establishing terms of 6.875% Notes Due
1999 and 7.40% Notes Due 2002 -incorporated by
reference to Exhibit 4(d) to the registrant's
Annual Report on Form 10-K for the year ended
December, 31, 1992, file no.
1-7933.
*4(e) Resolutions establishing the terms of 6.70% Notes
Due 2003 and 6.30% Notes Due 2004 -incorporated by
reference to Exhibits 4(c) and 4(d) of the
registrant's Annual report on Form 10-K for the
year ended December 31, 1993, file
no. 1-7933.
II-8
<PAGE>
4(f) Form of Indenture relating to the Company's
subordinated debt securities.
4(g) Form of subordinated debt securities. The form or
forms of the subordinated debt securities with
respect to each particular offering will be filed
as an exhibit subsequently included or
incorporated by reference herein.
*4(h) Junior Subordinated Indenture dated as of
January 13, 1997 between the registrant and The
Bank of New York, as trustee -- incorporated by
reference to Exhibit 4.1 of the registrant's
Amendment No. 1 to Registration Statement on
Form S-4 No. 333-21237 dated March 27, 1997
(the "Capital Securities Registration").
*4(i) First Supplemental Indenture dated as of January
13, 1997 between the registrant and the Bank of
New York, as trustee -- incorporated by reference
to Exhibit 4.2 of the Capital Securities
Registration.
*4(j) Certificates of Trust of Aon Capital A
-incorporated by reference to Exhibit 4.3 of the
Capital Securities Registration.
*4(k) Amended and Restated Trust Agreement of Aon
Capital A dated as of January 13, 1997 among
the registrant, as depositor, The Bank of New
York, as property trustee, The Bank of New York
(Delaware), as Delaware trustee, the
administrative trustees named therein and the
holders, from time to time, of the capital
securities -- incorporated by reference to
Exhibit 4.5 of the Capital Securities
Registration.
*4(l) Capital Securities Guarantee Agreement dated as of
January 13, 1997 between the registrant and The
Bank of New York, as guarantee trustee
-incorporated by reference to Exhibit 4.8 of the
Capital Securities Registration.
*4(m) Capital Securities Exchange and Registration
Rights Agreement dated as of January 13, 1997
among the registrant, Aon Capital A and Morgan
Stanley & Co. Incorporated and Goldman, Sachs &
Co. -- incorporated by reference to Exhibit
4.10 of the Capital Securities Registration.
*4(n) Debenture Exchange and Registration Rights
Agreement dated as of January 13, 1997 among
the registrant, Aon Capital A and Morgan
Stanley & Co. Incorporated and Goldman, Sachs &
Co. -- incorporated by reference to Exhibit
4.11 of the Capital Securities Registration.
*4(o) Guarantee Exchange and Registration Rights
Agreement dated as of January 13, 1997 among
the registrant, Aon Capital A and Morgan
Stanley & Co. Incorporated and Goldman, Sachs &
Co. -- incorporated by reference to Exhibit
4.12 of the Capital Securities Registration.
5 Opinion of Jerome S. Hanner, Senior Counsel and
Assistant Secretary of the registrant.
II-9
<PAGE>
*12(a) Statement of computation of ratio of earning to
fixed charges -- incorporated by reference to
Exhibit 12(a) to the registrant's Annual Report on
Form 10-K for the year ended December 31, 1998
(the "1998 Form 10-K") and to Exhibit 12(a) to the
registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999 (the "1999 First
Quarter Form 10-Q"), file no. 1-7944.
*12(b) Statement of computation of ratio of earnings to
combined fixed charges and preferred stock
dividends -- incorporated by reference to Exhibit
12(b) to the 1998 Form 10-K and to Exhibit 12(b)
to the 1999 First Quarter Form 10-Q, file no.
1-7944.
23(a) Consent of Jerome S. Hanner (included in Exhibit
5).
23(b) Consent of Ernst & Young LLP.
23(c) Acknowledgment of Ernst & Young LLP.
24 Powers of Attorney
25(a) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act of
1939 of The Bank of New York.
25(b) Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture Act of
1939 of U.S. Bank Trust National Association
relating to the subordinated debt securities.
Exhibits marked with an asterisk (*) are incorporated by reference to documents
previously filed by the registrant with the Securities and Exchange Commission,
as indicated.
II-10
Exhibit 1(a)
Aon CORPORATION
SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
---------------------------------------
-------------, -----
1. Introductory. Aon Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell from time to time senior debt securities,
subordinated debt securities, convertible subordinated debt securities
(collectively, "Debt Securities"), preferred stock and common stock registered
under the registration statement referred to in Section 2(a) ("Registered
Securities"). If specified in a Terms Agreement referred to in Section 3, the
Company proposes to grant to the underwriters an option to purchase up to that
amount of Registered Securities specified in such Terms Agreement (the "Option
Securities"). The Debt Securities will be issued under indentures (as they may
be amended or supplemented from time to time, the "Indentures"), more
particularly described in a Terms Agreement, between the Company and the
trustees named therein (the "Trustee(s)"), in one or more series, which series
may vary as to interest rates, maturities, redemption provisions, selling prices
and other terms, with all such terms for any particular series of the Debt
Securities being determined at the time of sale. The preferred stock will be
issued in one or more series, which series may vary as to voting rights,
dividends, optional and mandatory redemption provisions, liquidation preference
and conversion provisions and other terms, with all such terms for any
particular series or issue of the preferred stock being determined at the time
of issue. The Registered Securities will be sold pursuant to a Terms Agreement,
for resale in accordance with terms of offering determined at the time of sale.
The Registered Securities (together with the Option
Securities) involved in any such offering are hereinafter referred to as the
"Securities." The firm or firms which agree to purchase the Securities are
hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement are hereinafter referred to as the "Representatives"; provided,
however, that if the Terms Agreement does not specify any representative of the
Underwriters, the term "Representatives," as used in this Agreement (other than
in Section 2(b) and 7 and the second sentence of Section 3) shall mean the
Underwriters.
2. Representations, Warranties and Agreements of the Company.
The Company represents warrants and agrees that:
(a) A registration statement on Form S-3 with respect to the
Registered Securities and more particularly described in the Terms Agreement
relating to the Securities has (i) been
-1-
<PAGE>
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "Securities Act"), and the rules and regulations
(the "Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder and (ii) been filed with the Commission under the
Securities Act. Such registration statement has become effective under the
Securities Act. If any post-effective amendment to such registration statement
has been filed with the Commission prior to the date of the applicable Terms
Agreement, the most recent such amendment has been declared effective by the
Commission. Copies of such registration statement and any amendments thereto
have been delivered by the Company to the Representatives. 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 such registration statement, or amendments thereof, before it became
effective under the Securities Act and any prospectus filed with the Commission
by the Company with the consent of the Representatives pursuant to Rule 424(a)
of the Rules and Regulations; "Registration Statement" means such registration
statement, as amended at the Effective Time, including all information
incorporated by reference therein and, if the date of the Terms Agreement is on
or before the fifteenth business day after the Effective Date, including all
information contained in the final prospectus filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations in accordance with Section 4(a)
hereof and deemed to be a part of the registration statement as of the Effective
Time pursuant to paragraph (b)of Rule 430A of the Rules and Regulations; and
"Prospectus" means such final prospectus, as first filed with the Commission
pursuant to Rule 424(b)(1) or (4) of the Rules and Regulations or, if the date
of the Terms Agreement is after the fifteenth business day after the Effective
Date, pursuant to Rule 424(b)(2) or (5), as supplemented as contemplated by
Section 3 to reflect the terms of the Securities and the terms of offering
thereof, including all documents incorporated by reference therein. The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus.
(b) On the Effective Date, such Registration Statement
complied in all material respects with the Securities Act, the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), if applicable, and the
applicable rules and regulations under said Acts, and did not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
-2-
<PAGE>
misleading, and on the date of the applicable Terms Agreement, and at the time
of filing of the Prospectus pursuant to Rule 424(b)(1) and (4), the Registration
Statement and the Prospectus will comply in all material respects with the
Securities Act, the Trust Indenture Act, if applicable, and the applicable rules
and regulations under said Acts, and neither of such documents will include any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading;
provided that no representation or warranty is made as to (i) 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 Representatives by or on behalf of any Underwriter
specifically for inclusion therein; and the Indenture, if any, described in the
Term Agreement will comply in all material respects with the Trust Indenture Act
and the applicable rules and regulations thereunder.
(c) The Company and each of its Significant Subsidiaries (as
defined in Section 13) have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective jurisdictions
of incorporation, are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification and in which the failure to so qualify would reasonably be
expected to have material adverse effect on the Company and its subsidiaries,
taken as a whole, and have all corporate power and authority necessary to own
their respective properties and to conduct the businesses in which they are
engaged.
(d) All of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued and are
fully paid, non-assessable and are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims.
(e) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement) by the Company and the
consummation of the transactions contemplated hereby and thereby and compliance
by the Company with the provisions of the Indenture, if any, described in the
Terms Agreement and the Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company or
any of its subsidiaries, or any agreement or other instrument binding upon the
Company or any of its subsidiaries
-3-
<PAGE>
(as defined in Section 13) that is material to the Company and its subsidiaries,
taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary; and
except for the registration of the Securities under the Securities Act and such
consents, approvals, authorizations, registration or qualifications as may be
required under the Trust Indenture Act or the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and applicable state or foreign securities laws
in connection with the purchase and distribution of the securities by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required for
the execution, delivery and performance of the Terms Agreement (including the
provisions of this Agreement) and the Indenture, if any, described in the Terms
Agreement, by the Company and the consummation of the transactions contemplated
hereby and thereby.
(f) No holders of the Company's securities have registration
rights with respect thereto other than the registration rights granted pursuant
to ________________________ (collectively, the "Registration Rights Agreements")
and all such registration rights have been waived, or are not otherwise
exercisable, with respect to the Registration Statement.
(g) The Indenture, if any, described in the Terms Agreement
has been duly authorized and, when executed by the proper officers of the
Company (assuming the due execution and delivery thereof by the Trustee under
the Indenture) and delivered by the Company, will have been duly executed and
delivered by the Company and the Trustee and will constitute the valid and
legally binding obligation of the Company, enforceable in accordance with its
terms except in each case as such enforceability may be limited by applicable
bankruptcy, moratorium, insolvency, reorganization or other similar laws
affecting or limiting the enforcement of creditors' rights generally and by the
effect of general principles of equity (whether such enforceability is
considered in a proceeding in equity or at law) or by an implied covenant of
good faith and fair dealing; the Debt Securities, if any, described in the Terms
Agreement have been duly authorized, and, upon payment therefor as provided
herein, will be validly issued and outstanding and will constitute the valid and
legally binding obligations of the Company, enforceable in accordance with their
terms and entitled to the benefits of the Indenture except in each case as such
enforceability may be limited by applicable bankruptcy, moratorium, insolvency,
fraudulent conveyance, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by the effect of
general
-4-
<PAGE>
principles of equity (whether such enforceability is considered in a proceeding
in equity or at law) or by an implied covenant of good faith and fair dealing;
if any Securities to be issued are convertible, the shares of common stock
issuable upon conversion thereof are duly and validly authorized, have been duly
reserved for issuance upon conversion of the Securities and, when issued upon
the conversion of the Securities, will be duly and validly issued, fully paid
and non-assessable; the common stock and preferred stock, if any, described in
the Terms Agreement have been duly and validly authorized and, when issued and
paid pursuant to the Terms Agreement, will be fully paid and non-assessable; no
further approval or authority of the stockholders or the Board of Directors of
the Company will be required for the issuance and sale of the Securities as
contemplated herein or the issuance of the shares of common stock upon
conversion of the Securities; and the Securities, the Indenture, if any,
described in the Terms Agreement and the capital stock of the Company will
conform to the descriptions thereof contained in the Registration Statement and
the Prospectus.
(h) Other than as set forth or contemplated in the Prospectus,
there has not occurred any material adverse change, or any development which
would be reasonably likely to result in a material adverse change, in the
condition, financial or otherwise, or in the earnings, business or operations of
the Company and its subsidiaries, taken as a whole.
(i) There are no legal or governmental proceedings pending or,
to the actual knowledge of the Company, threatened, to which the Company or any
of its subsidiaries is a party or to which any property of the Company or any of
its subsidiaries is subject, that are required to be described in the
Registration Statement or the Prospectus and are not so described, or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement that are not described or filed as
required.
(j) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits of and
from, and has made all declarations and filings with, all federal, state, local
and other governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its properties and
assets and to conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain or file would not have a
material adverse effect on the Company and its subsidiaries, taken as a whole.
-5-
<PAGE>
3. Purchase and Offering of the Securities by the
Underwriters. The obligation of the Underwriters to purchase the Securities will
be evidenced by an exchange of a telegram, telex or other written communications
("Terms Agreement") at each time the Company determines to sell the Securities.
Each Terms Agreement will be in the form of Annex II(A) or (B) attached hereto
and will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the amount to be purchased by
each Underwriter, the purchase price to be paid by the Underwriters and certain
terms of the Securities and whether any of the Securities may be sold to
institutional investors pursuant to Delayed Delivery Contracts (as defined
below). The Terms Agreement will also specify the time and date of delivery and
payment (such time and date, or such other time not later than seven full
business days thereafter as the Representatives and the Company agree as the
time for payment and delivery, being herein and in the Terms Agreement referred
to as the "Closing Date"), the place of delivery and payment and any details of
the terms of public offering that should be reflected in the prospectus
supplement relating to the offering of the Securities. The obligations of the
Underwriters to purchase the Securities will be several and not joint. It is
understood that the Underwriters propose to offer the Securities for sale as set
forth in the Prospectus. Unless otherwise provided in the Terms Agreement, the
Debt Securities, if any, delivered to the Underwriters on the Closing Date will
be in definitive fully registered form, in such denominations and registered in
such names as the Underwriters may request.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants herein contained, and subject to the
terms and conditions herein set forth, the Company grants an option to the
several Underwriters to purchase, severally and not jointly, up to the amount of
the Option Securities as shall be specified in the Terms Agreement from the
Company at the same price as the Underwriters shall pay for the Registered
Securities. Said option may be exercised only to cover over-allotments in the
sale of the Registered Securities by the Underwriters and may be exercised in
whole or in part at any time on or before the thirtieth day after the date of
the Terms Agreement upon written or telegraphic notice by the Representatives to
the Company setting forth the amount of the Option Securities as to which the
several Underwriters are exercising the option. The amount of Option Securities
to be purchased by each Underwriter shall be the same percentage of the total
amount of the Option Securities to be purchased by the
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<PAGE>
several Underwriters as such Underwriter is purchasing of the Registered
Securities, as adjusted by the Representatives in such manner as the
Representatives deem advisable to avoid fractional shares/units.
If the Terms Agreement provides for the sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contract") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are only to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the Closing
Date the Company will pay, as compensation, to the Representatives for the
accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate amount of Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the amount of
Securities set forth opposite each Underwriter's name in such Terms Agreement,
except to the extent that the Representatives determine that such reduction
shall be otherwise than pro rata and so advise the Company. The Company will
advise the Representatives not later than the business day prior to the Closing
Date of the amount of Contract Securities.
4. Further Agreements of the Company. The Company
agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus (i) pursuant to Rule 424(b)(1) (or,
if applicable and if consented to by the Representatives, pursuant to Rule
424(b)(4)) not later than the Commission's close of business on the earlier of
(A) the second business day following the date of the Terms Agreement or (B) the
fifteenth business day after the Effective Date, or (ii) if the date of the
Terms Agreement is after the fifteenth business day after the Effective Date,
pursuant to Rule 424(b)(2) (or, if applicable and if consented to by the
Representatives, pursuant to Rule 424(b)(5)) not later than the second business
day following the date of a Terms Agreement; to advise the
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Representatives, promptly after it receives notice thereof, of the time when the
Registration Statement, or any amendment thereto, has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish the Representatives with copies thereof; to advise the
Representatives, promptly after it receives notice thereof, of the issuance by
the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use
of any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to
counsel for the Underwriters a conformed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith;
(c) To furnish promptly to each of the Representatives copies
of the Registration Statement, including all exhibits, any Preliminary
Prospectus, the Prospectus and all amendments and supplements to such documents,
in each case as soon as available and in such quantities as are reasonably
requested;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Representatives, be
required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any (i) amendment to
the Registration Statement or supplement to the Prospectus or (ii) any
Prospectus pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Representatives and counsel for the Underwriters;
(f) As soon as practicable after the date of each Terms
Agreement, but in no event later than twelve months after the later of (i) the
effective date of the registration statement relating to the Registered
Securities, (ii) the effective date of the most recent post-effective amendment
to the Registration Statement to become effective prior to the date of such
Terms
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Agreement and (iii) the date of the Company's most recent Annual Report on Form
10-K filed with the Commission prior to the date of such Terms Agreement, to
make generally available to its security holders an earnings statement which
will satisfy the provisions of Section 11(a) of the Securities Act (including,
at the option of the Company, Rule 158), it being intended that the Company will
satisfy the foregoing obligation by making available copies of its quarterly
reports on Form 10-Q;
(g) Promptly from time to time, to take such action as the
Representatives may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the continuance of
sales and dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Securities; provided that in connection
therewith the Company shall not be required to qualify as a foreign corporation
or to file a general consent to service of process in any jurisdiction or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject; and
(h) For the period specified in the Terms Agreement, to not
(A) in the event of an offering of common stock, preferred stock or convertible
debt securities, directly or indirectly, offer for sale, sell, grant any option
for the sale of, or otherwise dispose of, any securities that are of the same or
similar class as the Securities or any common stock or any security exchangeable
for, or convertible into, common stock (other than the Securities and shares
issued pursuant to (i) agreements in effect on the date of the Terms Agreement
and (ii) employee benefit plans, qualified stock option plans or other employee
compensation plans existing on the date of such Terms Agreement), without, in
any case, the prior written consent of a majority of the Representatives;
provided, however, the Company may, without such consent, offer and sell shares
of common stock of the Company in transactions exempt from the registration
requirements of the Securities Act, provided that the purchasers in such
transactions are prohibited from offering for sale, selling or otherwise
disposing of, directly or indirectly, any of the shares of common stock of the
Company so acquired by them for the remainder of the period, if any, specified
in the Terms, Agreement and, (B) in the event of an offering of Debt
Insecurities, offer for sale, sell or cause to be offered for sale or sold,
without the prior written consent of a majority of the Representatives, any debt
securities which are substantially similar to the Securities.
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5. Expenses. The Company agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Securities and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits thereto; (c) the costs of distributing the
Registration Statement as originally filed and each amendment thereto and any
post-effective amendments thereto (including, in each case, exhibits), any
Preliminary Prospectus, the Prospectus and any amendment or supplement to the
Prospectus and any documents incorporated by reference in any of the foregoing,
all as provided in this Agreement; (d) the costs of reproducing and distributing
this Agreement; (e) the filing fees incident to securing any required review by
the National Association of Securities Dealers, Inc. of the terms of sale of the
Securities, if necessary; (f) any applicable stock exchange listing or other
fees; (g) the fees and expenses of filings, if any, with foreign securities
administrators and of qualifying the Securities under the securities laws of the
several jurisdictions as provided in Section 4(g) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters up to a maximum of $________); (h) the fees paid to
rating agencies in connection with the rating of the Securities; (i) the costs
of printing and issuance of certificates, if any; (j) transfer agent's fees, if
any; and (k) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement; provided that except as
provided in this Section 5 and in Section 10, the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Securities which they may sell and the expenses of
advertising any offering of the Securities made by the Underwriters, and the
Company shall pay the fees and expenses of its counsel and any transfer taxes
payable in connection with its sale of Securities to the Underwriters.
6. Conditions of Underwriter's Obligations. The respective
obligations of the Underwriters herewith are subject to the accuracy, when made
and at the time of delivery of any Securities pursuant to a Terms Agreement, of
the representations and warranties of the Company contained herein, to the
performance by the Company of it obligations hereunder, and to each of the
following additional terms and conditions;
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 4(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that
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<PAGE>
purpose shall have been initiated or threatened by the Commission.
(b) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Terms Agreement,
the Indenture, if any, described in the Terms Agreement, the Securities, the
Registration Statement and the Prospectus, and all other legal matters relating
to this Agreement and the Terms Agreement and the transactions contemplated
hereby and thereby shall be satisfactory in all material respects to counsel for
the Underwriters, and the Company shall have furnished to such counsel, all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(c) Sidley & Austin, counsel to the Company, or other counsel
to the Company acceptable to the Representatives, shall have furnished to the
Representatives their written opinion, as counsel to the Company, addressed to
the Underwriters and dated the Closing Date, and, if Option Securities are
purchased, at any date after the Closing Date as specified in a Terms Agreement,
additional opinions from such counsel, in form and substance satisfactory to the
Representatives to the effect that:
(i) The Indenture, if any, described in the Terms Agreement
has been duly authorized, executed and delivered by the Company and
duly qualified under the Trust Indenture Act and, assuming due
authorization, execution and delivery thereof by the Trustee,
constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms;
(ii) The Debt Securities, if any, described in the Terms
Agreement have been duly authorized and, when duly executed and
delivered by the Company, and assuming due execution and authentication
thereof by the Trustee and upon payment and delivery in accordance with
this Agreement, the Debt Securities, other than any Contract
Securities, and any Contract Securities when duly executed,
authenticated, issued and delivered in the manner provided in the
Indenture and sold pursuant to the Delayed Delivery Contracts, will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture;
(iii) If any Securities to be issued are convertible into
common stock, the shares of common stock into which the Securities
initially will be convertible are duly and validly authorized, have
been duly reserved for issuance
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upon conversion of the Securities, and when duly issued upon the
conversion of the Securities will be duly and validly issued, fully
paid and non-assessable;
(iv) If the Securities to be issued are common stock or
preferred stock, the Securities, when certificates therefor have been
duly executed, countersigned and registered and delivered to and paid
for by the Underwriters in accordance with the Terms Agreement, will
constitute shares of common stock or preferred stock, as the case may
be, which have been duly authorized and validly issued, fully paid and
non assessable;
(v) The Registration Statement has become effective under the
Securities Act and, to the knowledge of such counsel, no stop order
suspending effectiveness of the Registration Statement has been issued
and, to the knowledge of such counsel, no proceeding for that purpose
has been instituted or threatened by the Commission;
(vi) The Registration Statement and the Prospectus (excluding
all documents incorporated by reference therein) and any further
amendments or supplements thereto made by the Company prior to the
Closing Date (other than the financial statements, financial data,
statistical data and supporting schedules included therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the applicable
rules and regulations under said Act;
(vii) The Securities, other than any Contract Securities, the
Indenture and the capital stock of the Company, and any Contract
Securities, when issued, delivered and sold, will conform in all
material respects to the description thereof included in the
Registration Statement;
(viii) The Terms Agreement (including the terms of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company; and
(ix) Except for the registration of the Securities under the
Securities Act and such consents, approvals, authorizations,
registration or qualifications as may be required under the Trust
Indenture Act or the Exchange Act, and applicable state or foreign
securities laws in connection with the purchase and distribution of the
Securities by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required
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<PAGE>
for the execution, delivery and performance of the Terms Agreement
(including the provisions of this Agreement) and the Indenture, if any,
described in the Terms Agreement, by the Company and the consummation
of the transactions contemplated hereby and thereby.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants for
the Company and the Representatives at which the contents of the
Registration Statement and Prospectus and related matters were
discussed, and although such counsel is not passing upon and does not
assume any responsibility for, and shall not be deemed to have
independently verified the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Registration
Statement and Prospectus, and has relied as to materiality, to a large
extent, upon the judgment of officers and representatives of the
Company, on the basis of the foregoing, nothing has come to the
attention of such counsel which causes them to believe that the
Registration Statement, as of the Effective Time, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of such
opinion, contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading (except that, in each case, such counsel
need express no comment with respect to the financial statements,
financial data, statistical data and supporting schedules included in
the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may (1) state that their
opinion is limited to the laws of the United States, the laws of the
State of New York and the General Corporation Law of the State of
Delaware, (2) rely as to matters of fact upon certificate of officers
of the Company, its subsidiaries and public officers; and (3) state
that their opinions set forth in subparagraphs (i) and (ii) above are
subject to the qualification that the enforceability of the Company's
obligations under the Indenture and the Securities may be limited by
bankruptcy, moratorium, insolvency, fraudulent conveyance,
reorganization and other similar laws relating to or affecting
creditors' rights generally and by the effect of general principles of
equity (whether such enforceability is considered in a proceeding
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<PAGE>
in equity or at law) or by an implied covenant of good faith
and fair dealing.
(d) Raymond I. Skilling, Executive Vice President and Chief
Counsel of the Company, shall have furnished to the Representatives his written
opinion, addressed to the Underwriters and dated the Closing Date, and, if
Option Securities are purchased, at any date after the Closing Date as specified
in the Terms Agreement, additional opinions from such counsel, in form and
substance satisfactory to the Representatives to the effect that:
(i) The Company and each of its Significant Subsidiaries have
been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation and have corporate power and authority necessary to own
or hold their respective properties and conduct the businesses in which
they are engaged, and are duly qualified to transact business and are
in good standing in each jurisdiction in which the conduct of business
or ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(ii) All of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and issued
and are fully paid, non-assessable and owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or
claims;
(iii) To such counsel's knowledge, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or to which any property of the Company or any
of its subsidiaries is the subject, that are required be described in
the Registration Statement or the Prospectus and are not so described,
or any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
that are not described or filed as required;
(iv) The Registration Statement and the Prospectus (including
all documents incorporated by reference therein) and any further
amendments or supplements thereto made by the Company prior to the
Closing Date (other than the financial statements, financial data,
statistical data and supporting schedules included therein, as to which
such
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<PAGE>
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act, the Exchange Act
and the applicable rules and regulations under said Acts;
(v) The sale of the Securities by the Company and the
compliance by the Company with all of the provisions of this Agreement,
the Terms Agreement, the Indenture, if any, described in the Terms
Agreement, any Delayed Delivery Contract and the Securities, and the
consummation of the transactions contemplated hereby and thereby will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any of its subsidiaries, or,
to the knowledge of such counsel, any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to
the Company and its subsidiaries, taken as a whole, or, to the
knowledge of such counsel, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiary; and except for the registration of the Securities
under the Securities Act and such consents, approvals, authorizations,
registration or qualifications as may be required under the Trust
Indenture Act or the Exchange Act, and applicable state or foreign
securities laws in connection with the purchase and distribution of the
Securities by the Underwriters, no consent, approval, authorization or
order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of the Terms Agreement (including the provisions of this
Agreement) and the Indenture, if any, described in the Terms Agreement,
by the Company and the consummation of the transactions contemplated
hereby and thereby.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants for
the Company and the Representatives at which the contents of the
Registration Statement and Prospectus and related matters were
discussed, and although such counsel is not passing upon and does not
assume any responsibility for, and shall not be deemed to have
independently verified the accuracy, completeness or fairness of the
statements contained or incorporated by reference in the Registration
Statement and Prospectus, and has relied as to materiality, to a large
extent, upon the judgment of officers and representatives of the
Company, on the basis of the foregoing, nothing has come to the
attention of such counsel which causes them to believe that
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the Registration Statement, as of the Effective Time, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus, as of the date of such
opinion, contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading (except that, in each case, such counsel
need express no comment with respect to the financial statements,
financial data, statistical data and supporting schedules included in
the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may (1) state that their
opinion is limited to the laws of the United States, the laws of the
State of New York and the General Corporation Law of the State of
Delaware, (2) rely as to matters of fact upon certificate of officers
of the Company, its subsidiaries and public officers; and (3) state
that their opinions set forth in subparagraphs (i) and (ii) above are
subject to the qualification that the enforceability of the Company's
obligations under the Indenture and the Securities may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether such
enforceability is considered in a proceeding in equity or at law) or by
an implied covenant of good faith and fair dealing.
(e) The Company shall have furnished to the Representatives a
letter (as used in this paragraph the "bring down letter") of Ernst & Young LLP,
or such other independent accountants acceptable to the Representatives,
addressed to the Underwriters and dated the Closing Date, (i) confirming that
they are independent public accountants within the meaning of the Securities 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, (ii) stating, as of the date of the bring-down letter (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by its letter (the "initial letter") delivered to the
Representatives concurrently with the execution of the Terms Agreement and (iii)
confirming in all material respects the
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conclusions and findings set forth in the initial letter.
(f) The Company shall have furnished to the Representatives a
certificate, dated the Closing Date, and on any later date, if any, on which
Option Securities are purchased, of an executive officer of the Company stating
that the representations, warranties and agreements of the Company in Section 2
hereof are true and correct as of such date; the Company has complied with all
its agreements contained herein; and the conditions set forth in Section 6
hereof have been fulfilled.
(g) Subsequent to the execution and delivery of the Terms
Agreement, there shall not have occurred any change, or any development which
would be reasonably likely to result in a change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company and its
Significant Subsidiaries, taken as a whole, from that set forth in the
Prospectus, that, in the judgment of the Representatives, is material and
adverse and that makes it, in the judgment of the Representatives, impracticable
to market the Offered Securities on the terms and in the manner contemplated in
the Prospectus.
(h) Subsequent to the execution and delivery of the Terms
Agreement, there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, Inc. (the "NYSE"), the
American Stock Exchange or the over-the-counter market shall have been suspended
or minimum prices shall have been established on either of such exchanges or
such market by the commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking moratorium shall
have been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the reasonable
judgment of the Representatives, impracticable or inadvisable to proceed with
the delivery of the Securities.
(i) Subsequent to the execution and delivery of the Terms
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) of the
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Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
7. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof to which that
Underwriter or controlling person may become subject, under the Securities Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (ii)
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 for any legal
or other expenses reasonably incurred by that Underwriter or controlling person
in connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
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, the Registration Statement
or the Prospectus or in any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for inclusion
therein; and provided further, that as to any Preliminary Prospectus or
supplement thereto this indemnity agreement shall not inure to the benefit of
any Underwriter or any person controlling that Underwriter on account of any
loss, claim, damage, liability or action arising from the sale of Securities to
any person by that Underwriter if that Underwriter failed to send or give a copy
of the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus or supplement thereto was
corrected in the Prospectus, unless such failure resulted from non-compliance by
the Company with Section 4(c). For purposes of the second proviso to the
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immediately preceding sentence, the term Prospectus shall not be deemed to
include the documents incorporated by reference therein, and no Underwriter
shall be obligated to send or give any supplement or amendment to any document
incorporated by reference in a Preliminary Prospectus or supplement thereto or
the Prospectus to any person other than a person to whom such Underwriter has
delivered such incorporated documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or to any controlling person of
that Underwriter.
(b) Each Underwriter, severally and not jointly, shall
indemnify and hold harmless the Company, each of its directors (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company), each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (ii) 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 furnished to the
Company through the Representatives by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending preparing to defend against
any such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which any
Underwriter may otherwise have to the Company or any such director, officer or
controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 7 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 Section 7, notify the indemnifying party in
writing of the claim
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or the commencement of that action. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
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, the indemnifying party shall not be liable to the indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof; provided, however,
that the Representatives shall have the right to employ counsel to represent
jointly the Representatives and those other 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 Section 7 if the named parties to any such proceeding (including any
impleaded parties) include both the Company and the Representatives and if, in
the reasonable judgment of the Representatives, representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interest between them, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. It is understood that the Company shall
not, in respect of the legal expenses of the Representatives in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties. Anything in this subsection to the
contrary notwithstanding, an indemnifying party shall not be liable for any
settlement of claim or action effected without its written consent.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(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
-20-
<PAGE>
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 purchased under this Agreement (before deducting expenses) received
by the Company bear to the total underwriting discounts and commissions received
by the Underwriters with respect to the Securities purchased under this
Agreement, 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 or alleged
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 Section 7(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 Section
7(d) shall be deemed to include, for purposes of this Section 7(d), 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 Section 7(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public was offered to the
public exceeds the amount of any damages which such Underwriter has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities 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 Section 7(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The Underwriters severally confirm that the
-21-
<PAGE>
statements with respect to the public offering of the Securities set forth on
the cover page of, and under the caption "Underwriting" in, the Prospectus and
any legends relating to stabilization and overallotment therein are correct and
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 agreements contained in this Section 7 and the
representations, warranties and agreements of the Company in Sections 2 and 4
shall survive the delivery of the Securities and shall remain in full force and
effect, regardless of any termination or cancellation of the Terms Agreement
incorporating the terms of this Agreement or any investigation made by or on
behalf of any indemnified party.
8. Defaulting Underwriters. If any Underwriter defaults in the
performance of its obligations under a Terms Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Securities which
the defaulting Underwriter agreed but failed to purchase in the respective
proportions which the number or principal amount of Securities set opposite the
name of each remaining non-defaulting Underwriter in Schedule A to the Terms
Agreement bears to the total number or principal amount of the Securities set
opposite the names of all the remaining non-defaulting Underwriters in Schedule
A to the Terms Agreement; provided, however, that the remaining non-defaulting
Underwriters shall not be obligated to purchase any Securities on the Closing
Date if the aggregate number or principal amount of the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number or principal amount of the Securities,
and any remaining non-defaulting Underwriter shall not be obligated to purchase
more than 110% of the number or principal amount of Securities set forth
opposite its name on Schedule A to the Terms Agreement. If the foregoing
maximums are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representatives 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 the Securities. If the remaining Underwriters or
other underwriters satisfactory to the Representatives do not elect to purchase
the number or principal amount which the defaulting Underwriter or Underwriters
agreed but failed to purchase, the Terms 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 to the
extent set forth in Sections 5 and 10.
-22-
<PAGE>
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 or agree to purchase the
Securities of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Closing Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or any supplement thereto or in any other
document or arrangement.
9. Effective Date and Termination. The obligations of the
Underwriters under the Terms Agreement may be terminated by the Representatives
by notice given to and received by the Company prior to delivery of any payment
for the Securities if, prior to that time, the events described in any of
Section 6(g), 6(h) or 6(i) shall have occurred.
10. Reimbursement of Underwriters' Expenses. If (a) the
Company shall fail to tender the Securities for delivery to the Underwriters for
any reason permitted under this Agreement or the Terms Agreement or (b) the
Underwriters shall decline to purchase the Securities for any reason permitted
under this Agreement or the Terms Agreement (including the termination of the
Terms Agreement pursuant to Section 9 but other than the occurrence of any of
the events described in Section 6(h)), the Company shall reimburse the
Underwriters for the reasonable fees and expenses of their counsel and for such
other out-of-pocket expenses as shall have been reasonably incurred by them in
connection with the Terms Agreement and the proposed purchase of the Securities,
and upon demand the Company shall pay the full amount thereof to the
Representatives. If the Terms Agreement is terminated pursuant to Section 8 by
reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any Underwriter on account of those expenses.
11. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to their addresses furnished to the
Company in writing for the purpose of communications hereunder;
(b) if to the Company, shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention:
General Counsel;
-23-
<PAGE>
provided, however, that any notice to an Underwriter pursuant to Section 7(c)
shall be delivered or sent by mail, telex or facsim ile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. The Terms
Agreement (including the provisions of this Agreement) shall inure to the
benefit of and be binding upon the Underwriters and the Company and their
respective successors. The Terms Agreement (including the provisions of this
Agreement) are for the sole benefit of only those persons, 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 Securities Act and (B) the indemnity agreement of the Underwriters contained
in Section 7(b) 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 within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 12, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of
securities from any Underwriter shall be deemed to be a successor by reason
merely of such person.
13. Definition of the Terms "Business Day" and "Subsidiary".
For purposes of this Agreement, (a) "business day" means any day on which the
NYSE is open for trading and (b) "subsidiary" and "Significant Subsidiary" each
has the meaning set forth in Rule 405 of the Rules and Regulations.
14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York (without giving effect to the
principles of choice of law).
15. Counterparts. The Terms Agreement may be executed in one
or more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
-24-
<PAGE>
16. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
-25-
<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on ______________, ____*.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of
initial public
offering]
Aon CORPORATION
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from Aon
CORPORATION, a Delaware corporation ("Company"), and the Company agrees to sell
to the undersigned, [If one delayed closing, insert--as of the date hereof, for
------------------------------
delivery on ______________, _____ ("Delivery Date")].
[$]_________________
principal amount of the Company's [Insert title of securities] ("Securities"),
--------------------------
offered by the Company's Prospectus dated ___________,_____ and a Prospectus
Supplement dated ____________, _____, relating thereto, receipt of copies of
which is hereby acknowledged, at ___% of the principal amount thereof plus
accrued interest from _______________, ____, if any, and on the further terms
and conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
-----------------------------------------------------
The undersigned will purchase from the Company as of
____________________
* Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
<PAGE>
the date hereof, for delivery on the dates set forth below,
Delivery Date Principal Amount
_____________ [$]_____________
_____________ [$]_____________
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has agreed for
delivery on-the-each-Delivery Date shall be made to the Company or its order by
[certified or official bank check in New York Clearing House (next day) funds at
the office of ________ at _______ _.M. on-the-such-Delivery Date] upon delivery
to the undersigned of the Securities to be purchased by the undersigned--for
delivery on such Delivery Date--in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to-the-such-Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on-the-such Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at-the-such-Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale of the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below,
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company
-2-
<PAGE>
delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_______________________
(Name of purchaser)
By _____________________
(Title of Signatory)
_________________________
_________________________
(Address of Purchaser)
Accepted, as of the above date,
Aon CORPORATION
By_____________________________
Name:
Title:
-3-
<PAGE>
ANNEX II (A)
Aon CORPORATION
("Company")
DEBT SECURITIES
TERMS AGREEMENT
---------------
------------, -----
Aon Corporation
123 North Wacker Drive
Chicago, Illinois 60606
Dear Sirs:
[On behalf of the Several Underwriters named in Schedule A
hereto and for their respective accounts, we] [We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement Basic
Provisions filed as exhibit on the Company's registration statement on Form S-3
(No. 333-__) ("Underwriting Agreement"), the following securities ("Securities")
to be issued under an indenture, dated __________, _____, between the Company
and as Trustee, on the following terms:
Title: [____% Floating Rate] [Senior] [Subordinated]
-----
[Notes] [Debentures] Due ____
Principal Amount: [$]
----------------
Interest: [___% per annum, from ______________, ____,
--------
payable semiannually on ____________ and commencing _______ ____,
to holders of record on the preceding _______________ or
________________, as the case may be.]
Maturity: _____________________, ____.
--------
Optional Redemption:
-------------------
Sinking Fund:
------------
Period Designated Pursuant to Section 4(h) of the Underwriting
--------------------------------------------------------------
Agreement _______ days.
- ---------
[Conversion Provisions]:
---------------------
<PAGE>
[Other Terms]
Delayed Delivery contracts: [None.] [Delivery Date[s]
--------------------------
shall be ____________, _____. Underwriters' fee is __% of the
principal amount of the Contract Securities.]
Purchase Price: ___% of principal amount, plus accrued
--------------
interest [if any,] from ___________, ____.
Expected Reoffering Price: ____% of principal amount,
-------------------------
subject to change by the undersigned.
Closing Date: _____ A.M. on ___________, ____, at
------------
____________ in New York [Clearing House (next day)] [Federal
(same-day)] funds.
[Name[s] and Address[es] of Representative[s]:]
The respective principal amounts of the Securities to be purchased by each of
the Underwriters are set forth opposite their names in Schedule A hereto.
[If appropriate, insert--It is understood that we may, with
------------------------
your consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated
herein by reference [If appropriate, insert--, except that the obligations and
-----------------------
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the
above Securities].
The Securities will be made available for checking and
packaging at the office of _______________ at least 24 hours prior to the
Closing Date.
[Please signify your acceptance of our offer by signing
the enclosed response to us in the space provided and returning
it to us.]
-2-
<PAGE>
[Please signify your acceptance of the foregoing by
return wire not later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of
themselves-itself-and as
Representative[s] of the Several]
[As] Underwriters[s]
[By [Name of Representative]]
By:_______________________
Name:
Title:
-3-
<PAGE>
SCHEDULE A
----------
Principal
Underwriter Amount
- ----------- ---------
-----------
Total.............................................[$]___________
-4-
<PAGE>
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o (Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
_____________, ____, relating to [$] principal amount of our [Insert title of
---------------
Securities].
- ----------
Very truly yours,
Aon CORPORATION
By:_____________________
Name:
Title:
-5-
<PAGE>
ANNEX II(B)
Aon CORPORATION
("Company")
EQUITY SECURITIES
TERMS AGREEMENT
---------------
-------------,---
Aon Corporation
123 North Wacker Drive
Chicago, Illinois 60606
Dear Sirs:
[On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we] [We] offer to purchase, on and
subject to the terms and conditions of the Underwriting Agreement Basic
Provisions filed as an exhibit to the Company's registration statement on Form
S-3 (No. 333- _____) ("Underwriting Agreement"), the following securities
("Securities") on the following terms:
Title: [Common Stock] [Preferred Stock, Series _________]
-----
Number of Shares to be issued: [_____________ shares]
-----------------------------
[For Preferred Stock:
Voting Rights:
-------------
Preferred Stock Dividends: [cash dividends of $ to $ per
-------------------------
share payable quarterly in arrears on _____________, ___________,
____________ and ___________.]
Optional Redemption:
-------------------
Mandatory Redemption/Sinking Fund:
---------------------------------
Liquidation Preference: [$ per share plus ]
----------------------
Name of Exchange or Market: [New York Stock Exchange]
--------------------------
[Nasdaq National Market System] [American Stock Exchange]
Period Designated Pursuant to Section 4(h) of the
-------------------------------------------------
Underwriting Agreement: _____ days.
- ----------------------
<PAGE>
[Conversion Provisions]:
---------------------
[Other Terms]
Price to Public: $___________ per share
---------------
Underwriting Discounts and Commission:
-------------------------------------
Proceeds to Company:
-------------------
Over-Allotment Option:
---------------------
Closing Date: A.M. on _______________,______, at
------------
______________ in New York [Clearing House (next day)]
[Federal (same day)] funds.
Name of Transfer Agent and Registrar:
------------------------------------
[Name[s] and Address[es] of Representative[s]:]]
[For Common Stock:
Name of Exchange or Market: [New York Stock Exchange]
--------------------------
[Nasdaq National Market System] [American Stock Exchange]
Period Designated Pursuant to Section 4(h) of the
-------------------------------------------------
Underwriting Agreement: _____ days.
- ----------------------
[Other Terms]
Price to Public: $______________ per share
---------------
Underwriting Discounts and Commission:
-------------------------------------
Proceeds to Company:
-------------------
Over-Allotment Option:
---------------------
Closing Date: ____________ A.M. on ____________,_____, at
------------
_____________ in New York [Clearing House (next day)] [Federal
(same-day)] funds.
Name of Transfer Agent and Register:
-----------------------------------
[Name[s] and Address[es] of Representative[s]:]]
The respective shares of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
herein.
-2-
<PAGE>
[If appropriate, insert -- It is understood that we may, with
-----------------------
your consent, amend this offer to add additional Underwriters and reduce the
number of shares to be purchased by the Underwriters listed in Schedule A hereto
by the number of shares to be purchased by such additional Underwriters.]
The provisions of the Underwriting Agreement are incorporated
herein by reference [If appropriate, insert --, except that the obligations and
-----------------------
agreements set forth in Section 8 ("Defaulting Underwriters") of the
Underwriting Agreement shall not apply to the obligations of the Underwriters to
purchase the
above Securities].
The Securities will be made available for checking and
packaging at the office of ________________ at least 24 hours prior to the
Closing Date.
[Please signify your acceptance of our offer by signing
the enclosed response to us in the space provided and returning
it to us.]
[Please signify your acceptance of the foregoing by
return wire not later than P.M. today.]
Very truly yours,
[Insert name(s) of Representatives
or Underwriters] [On behalf of-
themselves-itself-and as
Representative[s] of the Several]
[As] Underwriter[s]
[By [Name of Representative]]
By_______________________
Name:
Title:
-3-
<PAGE>
SCHEDULE A
Number of
Underwriter Shares
- ----------- ---------
-----------
Total.....................................[$]
-----------
-4-
<PAGE>
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
__________________, _____, relating to ___________ shares of our [Insert title
------------
of Securities] (the "Terms Agreement").
- -------------
Very truly yours,
Aon CORPORATION
By_____________________
Name:
Title:
-5-
- --------------------------------------------------------------------------------
Exhibit 4(f)
Aon Corporation
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
INDENTURE
Dated as of ______________________
----------------------------
Senior Subordinated Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE SHEET*
BETWEEN
Provisions of Sections 310 through 318(a) of the Trust Indenture Act of 1939 and
the within Indenture between Aon Corporation and U.S. Bank Trust National
Association, Trustee:
SECTION OF ACT SECTION OF INDENTURE
310(a)(1) and (2)............................................ 7.09
310(a)(3) and(4)............................................. Not applicable
310(b)....................................................... 7.08 and 7.10(b)
310(c)....................................................... Not applicable
311(a) and (b)............................................... 7.13
311(c)....................................................... Not applicable
312(a)....................................................... 5.01 and 5.02(a)
312(b) and (c)............................................... 5.02(b) and (c)
313(a)....................................................... 5.04(a)
313(b)(1).................................................... Not applicable
313(b)(2).................................................... 5.04(b)
313(c)....................................................... 5.04(c)
313(d)....................................................... 5.04(d)
314(a)....................................................... 5.03
314(b)....................................................... Not applicable
314(c)(1) and (2)............................................ 17.04
314(c)(3).................................................... Not applicable
314(d)....................................................... Not applicable
314(e)....................................................... 17.04
314(f)....................................................... Not applicable
315(a), (c) and (d).......................................... 7.01
315(b)....................................................... 6.07
315(e)....................................................... 6.08
316(a)(1).................................................... 6.01 and 6.06
316(a)(2).................................................... Omitted
316(a) last sentence......................................... 8.04
316(b)....................................................... 6.04
317(a)....................................................... 6.02
317(b)....................................................... 4.03(a)
318(a)....................................................... 17.06
- ----------------------------
* This Cross-Reference Sheet is not part of the Indenture.
-i-
<PAGE>
ARTICLE ONE- DEFINITIONS.....................................................-1-
Section 1.01. Definitions....................................................-1-
ARTICLE TWO - ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES......................................................-11-
Section 2.01. Amount Unlimited; Issuable in Series..........................-11-
Section 2.02. Form of Trustee's
Certificate of Authentication...............................-15-
Section 2.03. Form, Execution, Authentication,
Delivery and Dating of Securities...........................-15-
Section 2.04. Denominations; Record Date....................................-17-
Section 2.05. Exchange and Registration of
Transfer of Securities......................................-18-
Section 2.06. Temporary Securities..........................................-21-
Section 2.07. Mutilated, Destroyed, Lost or
Stolen Securities...........................................-22-
Section 2.08. Securities in Global Form....................................-24-
Section 2.09. Cancellation.................................................-25-
Section 2.10. Computation of Interest......................................-25-
ARTICLE THREE - REDEMPTION OF SECURITIES....................................-25-
Section 3.01. Redemption of Securities;
Applicability of Article....................................-25-
Section 3.02. Notice of Redemption;
Selection of Securities.....................................-25-
Section 3.03. Payment of Securities Called
for Redemption..............................................-27-
ARTICLE FOUR - PARTICULAR COVENANTS OF THE COMPANY..........................-28-
Section 4.01. Payment of Principal, Premium, Interest and
Additional Amounts..........................................-28-
Section 4.02. Offices for Notices and Payments, etc. ......................-29-
Section 4.03. Provisions as to Paying Agent.................................-30-
ARTICLE FIVE - SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE.....................................................-32-
Section 5.01. Securityholder Lists..........................................-32-
Section 5.02. Preservation and Disclosure of Lists..........................-32-
Section 5.03. Reports by the Company........................................-34-
Section 5.04. Reports by the Trustee........................................-35-
ARTICLE SIX - REMEDIES ON DEFAULT...........................................-37-
Section 6.01. Events of Default.............................................-37-
Section 6.02. Payment of Securities on Default;
Suit Therefor...............................................-39-
Section 6.03. Application of Moneys Collected by Trustee....................-42-
-ii-
<PAGE>
Section 6.04. Proceedings by Securityholders................................-43-
Section 6.05. Remedies Cumulative and Continuing............................-44-
Section 6.06. Direction of Proceedings......................................-44-
Section 6.07. Notice of Defaults............................................-45-
Section 6.08. Undertaking to Pay Costs......................................-45-
Section 6.09. Waiver of Past Defaults.......................................-46-
ARTICLE SEVEN - CONCERNING THE TRUSTEE......................................-46-
Section 7.01. Duties and Responsibilities of Trustee........................-46-
Section 7.02. Reliance on Documents, Opinions, etc..........................-48-
Section 7.03. No Responsibility for Recitals, etc...........................-49-
Section 7.04. Ownership of Securities or Coupons............................-49-
Section 7.05. Moneys to Be Held in Trust....................................-49-
Section 7.06. Compensation and Expenses of Trustee..........................-49-
Section 7.07. Officer's Certificate as Evidence.............................-50-
Section 7.08. Conflicting Interest of Trustee...............................-50-
Section 7.09. Eligibility of Trustee........................................-57-
Section 7.10. Resignation or Removal of Trustee.............................-58-
Section 7.11. Acceptance by Successor Trustee..............................-59-
Section 7.12. Successor by Merger, etc......................................-61-
Section 7.13. Limitations on Rights of Trustee as Creditor..................-61-
ARTICLE EIGHT - CONCERNING THE SECURITYHOLDERS..............................-66-
Section 8.01. Action by Securityholders.....................................-66-
Section 8.02. Proof of Execution by Securityholders.........................-66-
Section 8.03. Who Are Deemed Absolute Owners................................-68-
Section 8.04. Company-owned Securities Disregarded..........................-68-
Section 8.05. Revocation of Consents; Future
Securityholders Bound.......................................-68-
ARTICLE NINE- SECURITYHOLDERS' MEETINGS.....................................-69-
Section 9.01. Purposes of Meetings..........................................-69-
Section 9.02. Call of Meetings by Trustee...................................-69-
Section 9.03. Call of Meetings by Company or Securityholders................-70-
Section 9.04. Qualification for Voting......................................-71-
Section 9.05. Regulations...................................................-71-
Section 9.06. Voting........................................................-72-
ARTICLE TEN - SUPPLEMENTAL INDENTURES.......................................-72-
Section 10.01. Supplemental Indentures without Consent of
Securityholders............................................-72-
Section 10.02. Supplemental Indentures with Consent of
Securityholders............................................-74-
Section 10.03. Compliance with Trust Indenture Act; Effect of
Supplemental Indentures....................................-76-
Section 10.04. Notation on Securities.......................................-76-
ARTICLE ELEVEN - CONSOLIDATION, MERGER,
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<PAGE>
CONVEYANCE, TRANSFER OR LEASE...............................................-77-
Section 11.01. Company May Consolidate, etc.,
Only on Certain Terms......................................-77-
Section 11.02. Successor Corporation Substituted...........................-78-
ARTICLE TWELVE - SATISFACTION AND DISCHARGE OF INDENTURE
UNCLAIMED MONEYS............................................................-78-
Section 12.01. Discharge of Indenture.......................................-78-
Section 12.02. Deposited Moneys to Be Held in Trust by Trustee..............-79-
Section 12.03. Paying Agent to Repay Moneys Held............................-80-
Section 12.04. Return of Unclaimed Moneys...................................-80-
ARTICLE THIRTEEN - DEFEASANCE AND COVENANT DEFEASANCE.......................-80-
Section 13.01. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance...................-80-
Section 13.02. Defeasance and Discharge.....................................-81-
Section 13.03. Covenant Defeasance..........................................-81-
Section 13.04. Conditions to Defeasance or
Covenant Defeasance........................................-82-
Section 13.05. Deposited Money and Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions...................................-84-
ARTICLE FOURTEEN - SUBORDINATION............................................-85-
Section 14.01. Agreement to Subordinate.....................................-85-
Section 14.02. No Payment on Securities if Senior
Indebtedness in Default....................................-85-
Section 14.03. Distribution on Acceleration of Securities;
Dissolution and Reorganization;
Subrogation of Securities..................................-87-
Section 14.04. Reliance by Senior Indebtedness on
Subordination Provisions...................................-91-
Section 14.05. Trustee's Relation to Senior Indebtedness....................-91-
Section 14.06. Other Provisions Subject Hereto..............................-92-
ARTICLE FIFTEEN - CONVERSION................................................-93-
Section 15.01. Conversion Privilege.........................................-93-
Section 15.02. Conversion Procedure; Conversion Price;
Fractional Shares..........................................-93-
Section 15.03. Adjustment of Conversion Price for
Common Stock...............................................-94-
Section 15.04. Consolidation or Merger of the Company.......................-98-
Section 15.05. Notice of Adjustment.........................................-99-
Section 15.06. Notice in Certain Events.....................................-99-
Section 15.07. Company To Reserve Stock; Registration;
Listing........................................-100-
Section 15.08. Taxes on Conversion.........................................-101-
Section 15.09. Conversion After Record Date................................-101-
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<PAGE>
Section 15.10. Corporate Action Regarding Par Value
of Common Stock...........................................-102-
Section 15.11. Company Determination Final.................................-102-
Section 15.12. Trustee's Disclaimer........................................-102-
ARTICLE SIXTEEN - IMMUNITY OF INCORPORATORS, STOCKHOLDERS
OFFICERS AND DIRECTORS.....................................................-103-
Section 16.01. Indenture and Securities Solely
Corporate Obligations.....................................-103-
ARTICLE SEVENTEEN - MISCELLANEOUS PROVISIONS...............................-103-
Section 17.01. Benefits of Indenture Restricted to
Parties and Securityholders...............................-103-
Section 17.02. Provisions Binding on Company's Successors..................-103-
Section 17.03. Addresses for Notices, etc..................................-103-
Section 17.04. Evidence of Compliance with Conditions
Precedent.................................................-104-
Section 17.05. Legal Holidays..............................................-104-
Section 17.06. Trust Indenture Act to Control..............................-105-
Section 17.07. Execution in Counterparts...................................-105-
Section 17.08. Illinois Contract...........................................-105-
-v-
<PAGE>
THIS INDENTURE, dated as of the ____ day of ______ between Aon
Corporation, a corporation duly organized and existing under the laws of the
State of Delaware (hereinafter sometimes called the "Company"), party of the
first part, and U.S. Trust Bank National Association, a national banking
association(hereinafter sometimes called the "Trustee", which term shall include
any successor trustee appointed pursuant to Article Seven), party of the second
part.
WITNESSETH:
WHEREAS, the Company deems it necessary to issue from time to
time for its lawful purposes securities (hereinafter called the "Securities" or,
in the singular, "Security") evidencing its unsecured indebtedness and has duly
authorized the execution and delivery of this Indenture to provide for the
issuance of the Securities in one or more series, unlimited as to principal
amount, to bear such rates of interest, to mature at such time or times and to
have such other provisions as shall be fixed as hereinafter provided; and
WHEREAS, the Company represents that all acts and things
necessary to present a valid indenture and agreement according to its terms,
have been done and performed, and the execution of this Indenture has in all
respects been duly authorized, and the Company, in the exercise of legal rights
and power in it vested, is executing this Indenture;
NOW, THEREFORE, in order to declare the terms and conditions
upon which the Securities are authenticated, issued and received, and in
consideration of the premises, of the purchase and acceptance of the Securities
by the Holders thereof and of the sum of one dollar to it duly paid by the
Trustee at the execution of these presents, the receipt whereof is hereby
acknowledged, the Company covenants and agrees with the Trustee, for the equal
and proportionate benefit of the respective Holders from time to time of the
Securities, as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture which are defined in the Trust Indenture
<PAGE>
Act of 1939 and the Securities Act of 1933, as amended, shall have the meanings
(except as herein otherwise expressly provided or unless the context otherwise
requires) assigned to such terms in the Trust Indenture Act of 1939 and in said
Securities Act as in force at the date of this Indenture as originally executed.
ADDITIONAL AMOUNTS
The term "Additional Amounts" shall mean any additional
amounts which are required by a Security or by or pursuant to a supplemental
indenture or Board Resolution under circumstances specified therein, to be paid
by the Company in respect of certain taxes, assessments or governmental charges
imposed on certain Holders of Securities and which are owing to such Holders of
Securities.
AUTHORIZED NEWSPAPER
The term "Authorized Newspaper" shall mean a newspaper in an
official language of the country of publication of general circulation in the
place in connection with which the term is used. If it shall be impractical in
the opinion of the Trustee to make any publication of any notice required hereby
in an Authorized Newspaper, any publication or other notice in lieu thereof
which is made or given with the approval of the Trustee shall constitute a
sufficient publication of such notice.
BOARD OF DIRECTORS
The term "Board of Directors" shall mean the Board of
Directors of the Company, the Executive Committee of the Company or any other
committee duly authorized to exercise the powers and authority of the Board of
Directors with respect to this Indenture or any security.
BOARD RESOLUTION
The term "Board Resolution" shall mean a resolution certified
by the Corporate Secretary or any Assistant Secretary of the Company to have
been duly adopted by, or pursuant to the authority of, the Board of Directors
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
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<PAGE>
BUSINESS DAY
The term "Business Day" shall mean, with respect to any
Security, a day (other than a Saturday or Sunday) that in the city (or in any of
the cities, if more than one) in which amounts are payable, as specified on the
face of the form of such Security, is neither a legal holiday nor a day on which
banking institutions are authorized or required by law, regulation or executive
order to close.
CLOSING PRICE
The term "Closing Price" of the Common Stock shall mean the
last reported sale price of such stock as shown on the Composite Tape of the
NYSE (or, if such stock is not listed or admitted to trading on the NYSE, on the
principal national securities exchange on which such stock is listed or admitted
to trading), or, in case no such sale takes place on such day, the average of
the closing bid and asked prices on the NYSE (or, if such stock is not listed or
admitted to trading on the NYSE, on the principal national securities exchange
on which such stock is listed or admitted to trading), or, if it is not listed
or admitted to trading on any national securities exchange, the average of the
closing bid and asked prices as reported by the National Association of
Securities Dealers Automated Quotation System (NASDAQ), or if such stock is not
so reported, the average of the closing bid and asked prices as furnished by any
member of the National Association of Securities Dealers, Inc., selected from
time to time by the Company for that purpose.
COMMON DEPOSITARY
The term "Common Depositary" shall have the meaning specified
in Section 2.06.
COMMON STOCK
The term "Common Stock" shall mean the class of Common Stock,
par value $1.00 per share, of the Company authorized at the date of this
Indenture as originally signed, or any other class of stock resulting from
successive changes or reclassifications of such Common Stock, and in any such
case including any shares thereof authorized after the date of this Indenture,
and any other shares of stock of the Company which do not have any priority in
the payment of dividends or upon liquidation over any other class of stock.
-3-
<PAGE>
COMPANY
The term "Company" shall mean the Person named as the
"Company" in the first paragraph of this instrument until a successor
corporation shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Company" shall mean such successor corporation.
COMPANY ORDER
The term "Company order" means a written order signed in the
name of the Company by the President or any Executive Vice President or any Vice
President or the Treasurer and by the Corporate Secretary or any Assistant
secretary.
CAPITALIZED LEASE OBLIGATION
The term "Capitalized Lease Obligation" shall mean
indebtedness represented by obligations under a lease that is required to be
capitalized for financial reporting purposes in accordance with generally
accepted accounting principles and the amount of such indebtedness shall be the
capitalized amount of such obligations determined in accordance with such
principles.
CONVERSION AGENT
The term "Conversion Agent" shall mean any Person authorized
by the Company to receive Securities to be converted into Common Stock on behalf
of the Company. The Company initially authorizes the Trustee to act as
Conversion Agent for the Securities on its behalf. The Company may at any time
from time to time authorize one or more Persons to act as Conversion Agent in
addition to or in place of the Trustee with respect to any series of Securities
issued under this Indenture.
CONVERSION PRICE
The term "Conversion Price" shall mean, with respect to any
series of Securities which are convertible into Common Stock, the price per
share of Common Stock at which the Securities of such series are so convertible
as set forth in the Board Resolution with respect to such series (or in any
supplemental indenture entered into pursuant to Section 10.01(g) with respect
-4-
<PAGE>
to such series), as the same may be adjusted from time to time in accordance
with Section 15.03 (or such supplemental indenture).
COUPON
The term "coupon" shall mean any interest coupon appertaining
to a security.
COUPON SECURITY
The term "Coupon Security" shall mean any security
authenticated and delivered with one or more coupons appertaining thereto.
COVENANT DEFEASANCE
The term "covenant defeasance" shall have the meaning
specified in Section 13.03.
CURRENT MARKET PRICE
The term "Current Market Price" on any date shall mean the
average of the daily Closing Prices per share of Common Stock for any thirty
(30) consecutive Trading Days selected by the Company prior to the date in
question, which thirty (30) consecutive Trading Day period shall not commence
more than forty-five (45) Trading Days prior to the day in question; provided
that with respect to Section 15.03(3), the "Current Market Price" of the Common
Stock shall mean the average of the daily Closing Prices per share of Common
Stock for the five (5) consecutive Trading Days ending on the date of the
distribution referred to in Section 15.03(3) (or if such date shall not be a
Trading Day, on the Trading Day immediately preceding such date).
DEFEASANCE
The term "defeasance" shall have the meaning specified in
Section 13.02.
DESIGNATED SUBSIDIARY
The term "Designated Subsidiary" shall mean Combined
Insurance Company of America.
-5-
<PAGE>
EVENT OF DEFAULT
The term "Event of Default" shall mean any event specified as
such in Section 6.01.
GOVERNMENT OBLIGATION
The term "Government Obligation" shall have the meaning
specified in section 13.04.
HOLDER
The terms "Holder", "Holder of Securities", "Securityholder"
or other similar terms, shall mean (a) in the case of any Registered Security,
the person in whose name at the time such Security is registered on the
registration books kept for that purpose in accordance with the terms hereof,
and (b) in the case of any Unregistered Security, the bearer of such Security.
INDENTURE
The term "Indenture" shall mean 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.
INTEREST
The term "Interest" shall mean, when used with respect to
non-interest bearing Securities, interest payable on or after maturity.
INTEREST PAYMENT DATE
The term "Interest Payment Date," when used with respect to
any Security, means the stated maturity of an installment of interest on such
Security.
-6-
<PAGE>
JUNIOR SUBORDINATED INDEBTEDNESS
The term "Junior Subordinated Indebtedness" shall mean (i)
indebtedness of the Company (whether outstanding on the date of the Indenture or
thereafter created, incurred, assumed or guaranteed by the Company) which,
pursuant to the terms of the instrument creating or evidencing the same, is
subordinate to the Securities in right of payment or in rights upon liquidation
and (ii) indebtedness under the junior subordinated indenture dated as of
January 13, 1997, as supplemented, between the Company and The Bank of New York,
a New York banking corporation.
NYSE
The term "NYSE" shall mean the New York Stock Exchange.
OFFICERS' CERTIFICATE
The term "Officers' Certificate" shall mean a certificate
signed by the Chairman of the Board of Directors or the President or any
Executive Vice President or any Vice President or the Treasurer and by the
Corporate Secretary or any Assistant Secretary.
OPINION OF COUNSEL
The term "Opinion of Counsel" shall mean an opinion in writing
signed by legal counsel, who may be an employee for counsel to the Company, or
who may be other counsel acceptable to the Trustee.
ORIGINAL ISSUE DISCOUNT SECURITIES
The term "Original Issue Discount Securities" shall mean any
Securities which are initially sold at a discount from the principal amount
thereof and which provide upon Event of Default for declaration of an amount
less than the principal amount thereof to be due and payable upon acceleration
thereof.
OUTSTANDING
The term "Outstanding", when used with reference to
Securities, shall, subject to the provisions of Section 8.01 and Section 8.04,
mean, as of any particular time, all Securities
-7-
<PAGE>
authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the Company) or
shall have been set aside and segregated in trust by the Company (if the Company
shall act as its own paying agent), provided that if such Securities are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in Article Three, or provisions satisfactory to the
Trustee shall have been made for giving such notice;
(c) Securities in lieu of and in substitution for which other
Securities shall have been authenticated and delivered pursuant to the terms of
Section 2.07, unless proof satisfactory to the Trustee is presented that any
such Securities are held by bona fide Holders in due course in whose hands such
Securities are valid obligations of the Company; and
(d) Securities which have been defeased pursuant to Section
13.02.
PERSON
The term "Person" shall mean 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
The term "Place of Payment," when used with respect to the
Securities of any series, means the office or agency of the Company in the
Borough of Manhattan, The City of New York, designated and maintained by the
Company pursuant to Section 4.02 and such other place or places where the
principal of (and premium, if any) and interest (and Additional Amounts, if any)
on the Securities of that series are payable as specified as contemplated by
Section 2.01.
-8-
<PAGE>
REGISTERED SECURITY
The term "Registered Security" shall mean any Security
registered on the Security registration books of the Company.
REGULAR RECORD DATE
The term "Regular Record Date" for the interest payable on any
Interest Payment Date on the Securities of any series means the date specified
for that purpose as contemplated by Sections 2.01 and 2.04.
RESPONSIBLE OFFICER
The term "responsible officer" when used with respect to the
Trustee shall mean the chairman of the board of directors, any vice chairman of
the board of directors, the chairman of the executive committee, the vice
chairman of the executive committee, the president, any vice president, the
cashier, the secretary, the treasurer, any senior trust officer or trust
officer, any assistant vice president, or any other officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with the
particular subject.
SECURITY REGISTER AND SECURITY REGISTRAR
The term "Security Register" and "Security Registrar" shall
have the respective meanings specified in Section 2.05.
SENIOR INDEBTEDNESS
The term "Senior Indebtedness" shall mean the principal of and
interest (including, without limitation, any interest accruing subsequent to the
filing of a petition or other action concerning bankruptcy or other similar
proceedings) on the following, whether presently outstanding or hereafter
incurred: (a) all indebtedness of the Company (i) for money borrowed (other than
that evidenced by the Securities), (ii) which is evidenced by a note, debenture
or similar instrument (including a purchase money mortgage) given in connection
with the acquisition of any property or assets (other than inventory or other
similar property acquired in the ordinary course of business), including
-9-
<PAGE>
securities, or (iii) for the payment of money relating to a Capitalized Lease
Obligation; (b) any liabilities of others described in the preceding clause (a)
which the Company has guaranteed or which is otherwise its legal liability; (c)
indebtedness of the Company under interest rate swaps, caps or similar hedging
agreements and foreign exchange contracts, currency swaps or similar agreements;
and (d) renewals, extensions, refundings, restructurings, amendments and
modifications of any such indebtedness or guarantee. Notwithstanding anything to
the contrary in this Indenture or the Securities, "Senior Indebtedness" shall
not include (w) any indebtedness of the Company to a subsidiary, or (y) any
Junior Subordinated Indebtedness.
TRADING DAY
The term "Trading Day" shall mean, with respect to the Common
Stock, so long as the Common Stock is listed or admitted to trading on the NYSE,
a day on which the NYSE is open for the transaction of business, or, if the
Common Stock is not listed or admitted to trading on the NYSE, a day on which
the principal national securities exchange on which the Common Stock is listed
is open for the transaction of business, or, if the Common Stock is not so
listed or admitted for trading on any national securities exchange, a day on
which NASDAQ is open for the transaction of business.
TRUST INDENTURE ACT OF 1939
Except as otherwise provided in Section 10.03, the term "Trust
Indenture Act of 1939" shall mean the Trust Indenture Act of 1939 as in force at
the date of this Indenture as originally executed.
UNITED STATES
The term "United States" shall mean the United States of
America, its territories, possessions and other areas subject to its
jurisdiction, including the Commonwealth of Puerto Rico.
UNREGISTERED SECURITY
The term "Unregistered Security" shall mean any Security other
than a Registered Security.
-10-
<PAGE>
U.S. DEPOSITARY
The term "U.S. Depositary" shall mean, with respect to the
Securities of any series issuable or issued in whole or in part in the form of
one or more permanent global Securities, the Person designated as U.S.
Depositary by the Company pursuant to Section 2.01, which must be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, until a
successor U.S. Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "U.S. Depositary" shall mean or
include each Person who is then a U.S. Depositary hereunder, and if at any time
there is more than one such Person, "U.S. Depositary" shall mean the U.S.
Depositary with respect to the Securities of that series.
U.S. DOLLAR
The term "U.S. Dollar" or "$" means a dollar or other
equivalent unit in such coin or currency of the United States as at the time
shall be legal tender of or the payment of public and private debts.
U.S. PERSON
The term "U.S. person" shall mean a citizen 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 tax regardless of its source.
ARTICLE TWO
ISSUE, EXECUTION, REGISTRATION AND
EXCHANGE OF SECURITIES
Section 2.01. Amount Unlimited; Issuable in Series. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth in an
Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
-11-
<PAGE>
(1) the title of the Securities of the series (which 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 (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.05, 2.06, 2.07, 3.02 or
10.04);
(3) whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, (a) whether
beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
provided in Section 2.05, and (b) the name of the Common Depositary or
the U.S. Depositary, as the case may be, with respect to any global
Security;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates, which may be fixed or variable, at
which the Securities of the series shall bear interest, if any, and if
the rate is variable, the manner of calculation thereof, the date or
dates from which such interest shall accrue, the Interest Payment Dates
on which such interest shall be payable and, in the case of Registered
Securities the Regular Record Date for the determination of Holders of
such Securities to whom interest is payable on any Interest Payment
Date;
(6) the place or places (in addition to such place or places
specified in this Indenture) where the principal of (and premium, if
any), interest, if any, and Additional Amounts, if any, on Securities
of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company,
pursuant to any sinking fund or otherwise;
-12-
<PAGE>
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and, where applicable, the obligation of the Company to
select the Securities to be redeemed;
(9) if other than U.S. Dollars, the currency or currencies, or
units, including European Currency Units ("ECUs"), based on or related
to currencies, in which the Securities of the series shall be
denominated and in which payments of principal of, any premium or
interest on, and any other amounts payable with respect to such
Securities shall or may be payable;
(10) the denominations in which Securities of the series shall
be issuable, if other than $1,000 or integral multiples thereof with
respect to Registered and Unregistered Securities;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof or
which the Trustee shall be entitled to claim pursuant to Section 6.02;
(12) if other than Registered Securities, whether the
Securities of the series will be issuable as Registered Securities or
Unregistered Securities (with or without coupons), or both; any
restrictions applicable to the offer, sale or delivery of Unregistered
Securities; if other than as provided for in Section 2.05, the terms
upon which Unregistered Securities of the series may be exchanged for
Registered Securities of such series and vice versa; if other than as
provided for in Section 2.05 and Section 2.06, the terms upon which
Unregistered Securities shall be issued in definitive form; and, if
other than as provided for in Section 4.02, the circumstances, if any,
under which payment on any Unregistered Security or coupon will be made
upon presentation of such Unregistered Security or coupon at an agency
of the Company outside the United States or by transfer to an
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<PAGE>
account in, or by mail to an address in, the United
States;
(13) whether and under what circumstances the Company will pay
Additional Amounts on the Securities of the series held by a person who
is not a U.S. Person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Company will have
the option to redeem such Securities rather than pay such Additional
Amounts;
(14) if either or both of Section 13.02 and Section 13.03
shall be inapplicable to the Securities of the series (provided that if
no such inapplicability shall be specified, then both Section 13.02 and
Section 13.03 shall be applicable to the Securities of the series); and
(15) whether the series of Securities is convertible and if
Article Fifteen shall be applicable to the Securities of the series
(provided that if convertability is not specified, then the Securities
of the series shall not be convertible and Article Fifteen shall not
apply; and provided further that if the series of Securities is
convertible and if no applicability of Article Fifteen shall be
specified, then Article Fifteen shall be applicable to the Securities
of the Series).
(16) to provide for the terms and conditions of conversion
into Common Stock of the Securities of any series which are convertible
into Common Stock, if different from those set forth in Article
Fifteen.
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except (i) as to denomination and (ii) that Securities of any series
may be issuable as either Registered Securities or Unregistered Securities and
(iii) as may otherwise be provided in or pursuant to such Board Resolution and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the
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<PAGE>
Corporate Secretary or any Assistant Secretary of the Company and delivered to
the Trustee at the same time as or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in the following form:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
-----------------
as Trustee,
By......
Authorized Officer
SECTION 2.03. FORM, EXECUTION, AUTHENTICATION, DELIVERY AND
DATING OF SECURITIES. The Securities of each series and the coupons, if any, to
be attached thereto, shall be in the forms approved from time to time by or
pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto, and shall be printed, lithographed, engraved or otherwise
produced in such manner as the officers executing the same may determine, as
evidenced by their execution of such securities. Such Securities and the
coupons, if any, to be attached thereto may have such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed, engraved or otherwise produced thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Securities may be listed, or to conform to usage.
Each Security and coupon shall be executed on behalf of the
Company by its Chairman of the Board of Directors or its Vice Chairman of the
Board of Directors or its President or any Executive Vice President or any Vice
President and by its Treasurer or any Assistant Treasurer or its Secretary or
any Assistant Secretary, under its Corporate seal. Such signatures may be the
manual or facsimile signatures of the present or any future such officers. The
seal of the Company may be in the form
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of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities.
Each Security and coupon bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Security, or the Security to which such coupon appertains. At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any series executed by the Company and, in the
case of Coupon Securities, having attached thereto appropriate coupons, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with such Company
order shall authenticate and deliver such Securities. If the form or terms of
the Securities or coupons of the series have been established in or pursuant to
one or more Board Resolutions as permitted by this Section and Section 2.01, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 7.01) shall be fully protected in
relying upon, an opinion of Counsel stating:
(a) if the form of such Securities or coupons has been
established by or pursuant to Board Resolution as permitted by Section 2.01,
that such form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 2.01, that such terms
have been established in conformity with the provisions of this Indenture; and
(c) that each such Security and coupon, 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 its
terms, subject to bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If such form or terms has been so established, the Trustee shall not be required
to authenticate such Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under the
Securities
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and the Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Notwithstanding the provisions of Section 2.01 and of the
immediately preceding paragraph, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary to deliver the
Officers' Certificate otherwise required pursuant to Section 2.01 or the Company
Order and opinion of Counsel otherwise required pursuant to the immediately
preceding paragraph at or prior to the time of authentication of each Security
of such series if such documents are delivered at or prior to the authentication
upon original issuance of the first Security of such series to be issued.
Every Registered Security shall be dated the date of its
authentication. Each Unregistered Security shall be dated as provided in or
pursuant to the Board Resolution or supplemental indenture referred to in
Section 2.01 or, if no such terms are specified, the date of its original
issuance.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
SECTION 2.04. DENOMINATIONS; RECORD DATE. The Securities shall
be issuable as Registered Securities or Unregistered Securities in such
denominations as may be specified as contemplated in Section 2.01. In the
absence of any such specification with respect to any series, such Securities
shall be issuable as Registered securities in the denominations contemplated by
Section 2.01.
The term "record date" as used with respect to an Interest
Payment Date (except a date for payment of defaulted interest) shall mean such
day or days as shall be specified in the terms of the Registered Securities of
any particular series as contemplated by Section 2.01; provided, however, that
in the absence of any such provisions with respect to any series, such term
shall mean (a) the last day of the calendar month next preceding such Interest
Payment Date if such Interest Payment Date is the fifteenth day of a calendar
month; or (b) the fifteenth day of a calendar month next preceding such Interest
Payment Date if such Interest Payment Date is the first day of
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the calendar month; provided, further, that if the day which would be the record
date as provided herein shall be a day on which banking institutions in the City
of Chicago or the City of New York are authorized by law or required by
executive order to close, then it shall mean the next preceding day which shall
not be a day on which such institutions are so authorized or required to close.
The person in whose name any Registered Security is registered
at the close of business on the Regular Record Date with respect to an Interest
Payment Date shall be entitled to receive the interest payable and Additional
Amounts, if any, payable on such Interest Payment Date notwithstanding the
cancellation of such Registered Security upon any transfer or exchange thereof
subsequent to such Regular Record Date and prior to such Interest Payment Date;
provided, however, that if and to the extent the Company shall default in the
payment of the interest and Additional Amounts, if any, due on such Interest
Payment Date, such defaulted interest and Additional Amounts, if any, shall
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the persons in whose names Outstanding Registered Securities are
registered at the close of business on a subsequent record date established by
notice given by mail by or on behalf of the Company to the Holders of Securities
of the series in default not less than fifteen days preceding such subsequent
record date, such record date to be not less than five days preceding the date
of payment of such defaulted interest, or be paid at any time in any other
lawful manner.
SECTION 2.05. EXCHANGE AND REGISTRATION OF TRANSFER OF
SECURITIES. Registered Securities of any series may be exchanged for a like
aggregate principal amount of Registered Securities of other authorized
denominations of such series. Registered Securities to be exchanged shall be
surrendered at the office or agency to be designated and maintained by the
Company for such purpose in the City of Chicago or the Borough of Manhattan, The
City of New York, in accordance with the provisions of Section 4.02, and the
Company shall execute and register and the Trustee shall authenticate and
deliver in exchange therefor the Registered Security or Registered Securities
which the Holder making the exchange shall be entitled to receive.
If the Securities of any series are issued in both registered
and unregistered form, except as otherwise specified pursuant to Section 2.01,
at the option of the Holder thereof, Unregistered Securities of any series may
be exchanged for Registered Securities of such series of any authorized
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denominations and of a like aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that shall
be maintained for such purpose in accordance with Section 4.02, with, in the
case of Unregistered Securities that are Coupon Securities, all unmatured
coupons and all matured coupons in default thereto appertaining. At the option
of the Holder thereof, if Unregistered Securities of any series are issued in
more than one authorized denomination, except as otherwise specified pursuant to
Section 2.01, such Unregistered Securities may be exchanged for Unregistered
Securities of such series of other authorized denominations and of a like
aggregate principal amount, upon surrender of such Unregistered Securities to be
exchanged at the agency of the Company that shall be maintained for such purpose
in accordance with Section 4.02 or as specified pursuant to Section 2.01, with,
in the case of Unregistered Securities that are coupon securities, all unmatured
coupons and all matured coupons in default thereto appertaining. Unless
otherwise specified pursuant to Section 2.01, Registered Securities of any
series may not be exchanged for Unregistered Securities of such series. 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.
The Company (or its designated agent (the "SECURITY
REGISTRAR")) shall keep, at such office or agency, a Security Register (the
"SECURITY REGISTER") in which, subject to such reasonable regulations as it may
prescribe, the Company shall register securities and shall register the transfer
of Registered Securities as in this Article Two provided. The Security Register
shall be in written form or in any other form capable of being converted into
written form within a reasonable time. At all reasonable times the Security
Register shall be open for inspection by the Trustee. Upon due presentment for
registration of transfer of any Registered Security of a particular series at
such office or agency, the Company shall execute and the Company or the Security
Registrar shall register and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Registered Security or Registered
Securities of such series for an equal aggregate principal amount and stated
maturity.
Unregistered Securities (except for any temporary bearer
Securities) and coupons shall be transferable by delivery.
All Securities presented for registration of transfer or for
exchange, Redemption or payment, as the case may be, shall
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(if so required by the Company or the Trustee) be duly endorsed by, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder or his
attorney duly authorized in writing.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 2.01, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such interests
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified and as subject to the conditions
contemplated by Section 2.01, then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged,
the Company shall deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of such permanent
global Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such permanent global Securities shall be
surrendered from time to time by the Common Depositary or the U.S. Depositary,
as the case may be, and in accordance with instructions given to the Trustee and
the Common Depositary or the U.S. Depositary, as the case may be, as shall be
specified in the Company order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered permanent global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such permanent global Security to be exchanged which
shall be in the form of the Securities of such series; provided, however, that
no such exchanges may occur during a period beginning at the opening of business
fifteen days before the day of the mailing of a notice of Redemption of
Securities of that series selected for Redemption under Article III and ending
at the close of business on the day of such mailing. Promptly following any such
exchange in part, such permanent global Security shall be returned by the
Trustee to the Common Depositary or the U.S. Depositary, as the case may be, or
such other Common Depositary or U.S. Depositary referred to above in accordance
with the instructions of the Company referred to above. If a Security in the
form specified for such series is issued in exchange for any portion of a
permanent global Security after the close of business at the office or agency
where such exchange occurs on any Regular Record Date and before the opening of
business at such office or agency
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on the relevant Interest Payment Date, such interest will not be payable on such
Interest Payment Date in respect of such Security in the form specified for such
series, but will be payable on such Interest Payment Date only to the Person to
whom interest in respect of such portion of such permanent global Security is
payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligation of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as the
securities surrendered upon such registration of transfer or exchange.
No service charge shall be made for any exchange or
registration of transfer of Registered Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
The Company shall not be required to exchange or register a
transfer of (a) any Registered Securities of any series for a period of fifteen
days next preceding any selection of such Registered Securities of such series
to be redeemed, or (b) any Security of any such series selected for Redemption
except, in the case of any such series to be redeemed in part, the portion
thereof not to be so redeemed.
Notwithstanding anything herein or in the terms of any series
of securities to the contrary, neither the Company nor the Trustee (which shall
rely on an Officers' Certificate and an opinion of Counsel) shall be required to
exchange any Unregistered Security for a Registered Security or vice versa if
such exchange would result in adverse Federal income tax consequences to the
Company (including the inability of the Company to deduct from its income, as
computed for Federal income tax purposes, the interest payable on any
Securities) under then applicable United States Federal income tax laws.
SECTION 2.06. TEMPORARY SECURITIES. Pending the preparation of
definitive securities of any series, the Company may execute and upon Company
Order the Trustee shall authenticate and deliver temporary Securities of such
series (printed, lithographed, typewritten or otherwise produced). Temporary
Securities of any series shall be issuable in any authorized denominations, and
in the form approved from time to time by or pursuant to a Board Resolution but
with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the officers executing
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such temporary Securities, such determination to be evidenced by such execution.
Every temporary Security shall be executed by the Company and be authenticated
by the Trustee upon the same conditions and in substantially the same manner,
and with like effect, as the definitive Securities. Except in the case of
temporary Securities in global form (which, except as otherwise provided
pursuant to Section 2.01, shall be exchanged in accordance with the provisions
of Section 2.05), without unnecessary delay the Company shall execute and shall
furnish definitive Securities of such series evidenced by the temporary
Securities and thereupon any or all temporary Registered Securities of such
series may be surrendered in exchange therefor without charge at the office or
agency to be designated and maintained by the Company for such purpose in the
City of Chicago or the Borough of Manhattan, The City of New York, in accordance
with the provisions of Section 4.02 and in the case of Unregistered Securities
at any agency maintained by the Company for such purpose as specified pursuant
to Section 2.01, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities an equal aggregate principal amount of definitive
Securities of the same series and stated maturity of authorized denominations
and in the case of such Securities that are Coupon Securities, having attached
thereto the appropriate coupons. Until so exchanged the temporary Securities of
any series shall be entitled to the same benefits under this Indenture as
definitive Securities of such series. The provisions of this Section 2.06 are
subject to any restrictions or limitations on the issue and delivery of
temporary Unregistered Securities of any series that may be established pursuant
to Section 2.01.
If temporary Securities of any series are issued in global
form, any such temporary global Security shall, unless otherwise provided
therein pursuant to Section 2.01, be delivered to the office of a depositary or
common depositary (the "COMMON DEPOSITARY") for credit to the respective
accounts of the beneficial owners of such Securities (or to such other accounts
as they may direct).
SECTION 2.07. MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.
In case any temporary or definitive Security of any series or, in the case of a
Coupon Security, any coupon appertaining thereto, shall become mutilated or be
destroyed, lost or stolen, the Company in the case of a mutilated Security or
coupon shall, and in the case of a lost, stolen or destroyed Security or coupon
may, in its discretion, execute, and upon Company Order the Trustee shall
authenticate and deliver, a new Security of the same series and stated maturity
as the mutilated,
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destroyed, lost or stolen Security or, in the case of a Coupon Security, a new
Coupon Security of the same series as the mutilated, destroyed, lost or stolen
Coupon Security or, in the case of a coupon, a new Coupon Security of the same
series as the Coupon Security to which such mutilated, destroyed, lost or stolen
coupon appertains, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen or in exchange for
the Coupon Security to which such mutilated, destroyed, lost or stolen coupon
appertains, with all appurtenant coupons not destroyed, lost or stolen. In every
case the applicant for a substituted Security or coupon shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and to the Trustee evidence to
their satisfaction of the destruction, loss or theft of such Security or coupon,
as the case may be, and of the ownership thereof. The Trustee may authenticate
any such substituted Security and deliver the same upon the written request or
authorization of any officer of the Company. Upon the issuance of any
substituted Security or coupon, 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 connected therewith and in addition a
further sum not exceeding ten dollars for each security so issued in
substitution. In case any security or coupon which has matured or is about to
mature shall become mutilated or be destroyed, lost or stolen, the company may,
instead of issuing a substituted Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated Security or
coupon) if the applicant for such payment shall furnish the Company and the
Trustee with such security or indemnity as they may require to save each of them
harmless and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company of the destruction, loss or theft of such Security
or coupon and of the ownership thereof.
Every substituted Security with, in the case of any such
Security that is a Coupon Security, its coupons, issued pursuant to the
provisions of this Section by virtue of the fact that any Security or coupon is
destroyed, lost or stolen shall, with respect to such Security or coupon,
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Security or coupon shall be found at any time, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities, and the coupons appertaining
thereto, duly issued hereunder.
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All Securities and any coupons appertaining thereto shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities and coupons appertaining thereto and shall, to the
extent permitted by law, preclude any and all other rights or remedies,
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.08. SECURITIES IN GLOBAL FORM. If Securities of a
series are issuable in global form, as specified as contemplated by Section
2.01, then, notwithstanding the provisions of Section 2.01, any such Security
shall represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such
manner and upon instructions given by such Person as shall be specified therein
or in the Company Order to be delivered to the Trustee pursuant to Section 2.03
or Section 2.06. Subject to the provisions of Section 2.03 and, if applicable,
Section 2.06, the Trustee shall deliver and redeliver any security in permanent
global form in the manner and upon instructions, given by the Person specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 2.03 or 2.06 has been, or simultaneously is, delivered, any instructions
by the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section
17.04 and need not be accompanied by an opinion of Counsel.
The provisions of Section 2.09 shall apply to any Security
represented by a Security in global form if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Security in
global form together with written instructions (which need not be accompanied by
an opinion of Counsel) with regard to the reduction in the principal amount of
Securities represented thereby.
Notwithstanding the provisions of Section 2.04, unless
otherwise specified as contemplated by Section 2.01, payment of principal of,
any premium and interest on, and any other amounts
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payable with respect to any Security in permanent global form shall be made to
the Person specified therein.
Notwithstanding the provisions of Section 8.03 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security as
shall be specified in a written statement of the Holder of such permanent global
security.
SECTION 2.09. CANCELLATION. All Securities surrendered for
payment, Redemption, exchange or registration of transfer, and all coupons
surrendered for payment, as the case may be, shall, if surrendered to the
Company or any agent of the Company or of the Trustee, be delivered to the
Trustee and promptly canceled by it or, if surrendered to the Trustee, be
canceled by it, and no securities or coupons shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture. The
Trustee shall destroy canceled Securities and coupons and deliver a certificate
of destruction to the Company or, if requested to do so by the Company, shall
return such canceled Securities and coupons to the Company.
SECTION 2.10. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 2.01 for securities of any series, interest
on the Securities of each series shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE THREE
REDEMPTION OF SECURITIES
SECTION 3.01. REDEMPTION OF SECURITIES; APPLICABILITY OF
ARTICLE. Redemption of Securities of any series as permitted or required by the
terms thereof shall be made in accordance with such terms and this Article;
provided, however, that if any provision of any series of Securities shall
conflict with any provision of this Article, the provision of such series of
Securities shall govern.
Notice date for a Redemption of Securities shall mean the date
on which notice of such Redemption is given in accordance with the provisions of
Section 3.02 hereof.
SECTION 3.02. NOTICE OF REDEMPTION; SELECTION OF SECURITIES.
In case the Company shall desire to exercise the right to redeem all, or, as the
case may be, any part of a series
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of Securities pursuant to the terms and provisions applicable to such series, it
shall fix a date for Redemption and shall mail a notice of such Redemption at
least thirty and not more than sixty days prior to the date fixed for Redemption
to the Holders of the securities and, in the case of Securities in global form,
to the Common Depositary or the U.S. Depositary, as the case may be, of such
series which are Registered Securities to be redeemed as a whole or in part at
their last addresses as the same appear on the Security Register. Such mailing
shall be by prepaid first class mail. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder shall have received such notice. In any case, failure to give
notice by mail, or any defect in the notice to the Holder of any Security of a
series designated for Redemption as a whole or in part shall not affect the
validity of the proceedings for the Redemption of any other Security of such
series.
Notice of Redemption to the Holders of Unregistered Securities
to be redeemed as a whole or in part, who have filed their names and addresses
with the Trustee as described in Section 5.04, shall be given by mailing notice
of such Redemption, by first class mail, postage prepaid, at least thirty days
and not more than sixty days prior to the date fixed for Redemption, to such
Holders at such addresses as were so furnished to the Trustee (and, in the case
of any such notice given by the Company, the Trustee shall make such information
available to the Company for such purpose). Notice of Redemption to any other
Holder of an Unregistered Security of, such series shall be published in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and in an
Authorized Newspaper in London, in each case, once in each of two successive
calendar weeks, the first publication to be not less than thirty nor more than
sixty days prior to the date fixed for Redemption. Any notice which is mailed in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder shall have received such notice. In any case,
failure to give notice by mail, or any defect in the notice to the Holder of any
Security of a series designated for Redemption as a whole or in part shall not
affect the validity of the proceedings for the Redemption of any other Security
of such series.
Each such notice of Redemption shall specify the date fixed
for Redemption, the Redemption price at which such Securities are to be
redeemed, the Place of Payment, that payment will be made upon presentation and
surrender of such Securities and, in the case of Coupon Securities, of all
coupons appertaining thereto maturing after the date fixed for Redemption, that
interest and Additional Amounts, if any, accrued
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to the date fixed for Redemption will be paid as specified in said notice and
that on and after said date interest, if any, thereon or on the portions thereof
to be redeemed will cease to accrue. If less than all of the Securities of a
series are to be redeemed, any notice of Redemption published in an Authorized
Newspaper shall specify the numbers of the Securities to be redeemed. In case
any Security is to be redeemed in part only, the notice of Redemption shall
state the portion of the principal amount thereof to be redeemed and shall state
that, upon surrender of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion thereof will be issued of the same
series.
Prior to the Redemption date specified in the notice of
Redemption given as provided in this Section, the Company will deposit in trust
with the Trustee or with one or more paying agents (or, if the Company is acting
as its own paying agent, segregate and hold in trust as provided in Section
4.03) an amount of money sufficient to redeem on the Redemption date all the
Securities or portions of Securities so called for Redemption at the appropriate
Redemption price, together with accrued interest, if any, to the date fixed for
Redemption. The Company will give the Trustee notice of each Redemption at least
forty-five days prior to the date fixed for Redemption (unless a shorter notice
is acceptable to the Trustee) as to the aggregate principal amount of securities
to be redeemed.
If less than all of the Securities of a series are to be
redeemed, the Trustee shall select, pro rata or by lot or in such other manner
as it shall deem reasonable and fair, the numbers of the Securities to be
redeemed in whole or in part; provided that in case the Securities of such
series have different terms and maturities, the Securities to be redeemed shall
be selected by the Company and the Company shall give notice thereof to the
Trustee.
SECTION 3.03. PAYMENT OF SECURITIES CALLED FOR REDEMPTION. If
notice of Redemption has been given as above provided, the Securities or
portions of Securities with respect to which such notice has been given shall
become due and payable on the date and at the Place of Payment stated in such
notice at the applicable Redemption price, together with interest, if any (and
Additional Amounts, if any), accrued to the date fixed for Redemption, and on
and after said date (unless the Company shall default in the payment of such
Securities at the Redemption price, together with interest, if any, and
Additional Amounts, if any, accrued to said date) interest on the Securities or
portions of Securities so called for Redemption shall cease to accrue. On
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presentation and surrender of such Securities subject to Redemption at said
Place of Payment in said notice specified, the said Securities or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
Redemption price, together with interest, if any, and Additional Amounts, if
any, accrued thereon to the date fixed for Redemption. Interest, if any (and
Additional Amounts, if any), maturing on or prior to the date fixed for
Redemption shall continue to be payable (but without interest thereon unless the
Company shall default in payment thereof) in the case of Coupon securities to
the bearers of the coupons for such interest upon surrender thereof, and in the
case of Registered Securities to the Holders thereof registered as such on the
Security Register on the relevant record date subject to the terms and
provisions of Section 2.04. At the option of the Company payment may be made by
check to (or to the order of) the Holders of the Securities or other persons
entitled thereto against presentation and surrender of such Securities.
If any Coupon Security surrendered for Redemption shall not be
accompanied by all appurtenant coupons maturing after the date fixed for
Redemption, the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee, if there be furnished to each of them such security or
indemnity as they may require to save each of them harmless.
Upon presentation of any Security redeemed in part only, the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder thereof, at the expense of the Company, a new Security or Securities of
the same series and stated maturity, of authorized denominations, in aggregate
principal amount equal to the unredeemed portion of the Security so presented.
ARTICLE FOUR
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. PAYMENT OF PRINCIPAL, PREMIUM, INTEREST AND
ADDITIONAL AMOUNTS. The Company will duly and punctually pay or cause to be paid
the principal of (and premium, if any), interest, if any, and Additional
Amounts, if any, on each of the Securities at the place, at the respective times
and in the manner provided in the terms of the Securities and in this Indenture.
The interest on Coupon Securities (together with any Additional Amounts) shall
be payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature. The
interest,
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if any, on any temporary bearer Securities (together with any Additional
Amounts) shall be paid, as to the installments of interest evidenced by coupons
attached thereto, if any, only upon presentation and surrender thereof, and, as
to the other installments of interest, if any, only upon presentation of such
Securities for notation thereon of the payment of such interest. The interest on
Registered Securities (together with any Additional Amounts) shall be payable
only to or upon the written order of the Holders thereof and at the option of
the Company may be paid by mailing checks for such interest payable to or upon
the order of such Holders at their last addresses as they appear on the Security
Register for such Securities.
SECTION 4.02. OFFICES FOR NOTICES AND PAYMENTS, ETC. As long
as any of the Securities of a series remain outstanding, the Company will
designate and maintain, in the City of Chicago and the Borough of Manhattan, The
City of New York, an office or agency where the Registered Securities of such
series may be presented for registration of transfer and for exchange as in this
Indenture provided, an office or agency where notices and demands to or upon the
Company in respect of the Securities of such series or of this Indenture may be
served, and an office or agency where the securities of such series may be
presented for payment. The Company will give to the Trustee notice of the
location of each such office or agency and of any change in the location
thereof. In case the Company shall fail to maintain any such office or agency in
the City of Chicago and the Borough of Manhattan, The City of New York, or shall
fail to give such notice of the location or of any change in the location
thereof, presentations may be made and notices and demands may be served at the
corporate trust office of the Trustee in the City of Chicago and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
notices and demands.
If Unregistered Securities of any series are Outstanding, the
Company will maintain or cause the Trustee to maintain one or more agencies in a
city or cities located outside the United States (including any city in which
such an agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where such
Unregistered Securities, and coupons, if any, appertaining thereto may be
presented for payment. Except as provided pursuant to Section 2.01, no payment
on any Unregistered Security or coupon will be made upon presentation of such
Unregistered Security or coupon at an agency of the Company within the United
States nor will any payment be made by transfer to an account in, or by mail to
an address in, the United States. Notwithstanding the foregoing, payments in
U.S. Dollars with respect to
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Unregistered Securities of any series and coupons appertaining thereto which are
payable in U.S. Dollars may be made at an agency of the Company maintained in
the City of Chicago and the Borough of Manhattan, The City of New York if the
full amount of such payment in U.S. Dollars at each agency maintained by the
Company outside the United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other similar
restrictions.
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 obligations 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.
The Company hereby initially designates _____________________,
located at ________________________, ______, ______________ ________ as the
Security Registrar and as the office or agency of the Company in the City of
Chicago, where the Securities may be presented for payment and, in the case of
Registered Securities, for registration of transfer and for exchange as in this
Indenture provided and where notices and demands to or upon the Company in
respect of the Securities of any series or of this Indenture may be served.
SECTION 4.03. PROVISIONS AS TO PAYING AGENT. (a) Whenever the
Company shall appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section,
(1) that it will hold sums held by it as such agent for the
payment of the principal of (and premium, if any), interest, if any, or
Additional Amounts, if any, on the Securities of such series in trust
for the benefit of the Holders of the Securities of such series, or
coupons appertaining thereto, as the case may be, entitled thereto and
will notify the Trustee of the receipt of sums to be so held,
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(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the securities of such series) to
make any payment of the principal of (or premium, if any), interest, if
any, or Additional Amounts, if any, on the Securities of such series
when the same shall be due and payable, 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.
(b) If the Company shall act as its own paying agent, it will,
on or before each due date of the principal of (and premium, if any), interest,
if any, or Additional Amounts, if any, on the Securities of any series set
aside, segregate and hold in trust for the benefit of the Holders of the
Securities of such series entitled thereto a sum sufficient to pay such
principal (and premium, if any), interest, if any, or Additional Amounts, if
any, so becoming due. The Company will promptly notify the Trustee of any
failure to take such action.
(c) Whenever the Company shall have one or more paying agents
for any series of Securities, it will, prior to each due date of the principal
of (and premium, if any), interest, if any, or Additional Amounts, if any, on
any Securities of that series, deposit with a paying agent a sum sufficient to
pay such principal (and premium, if any), or interest, if any, or Additional
Amounts, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium or interest, and (unless such
paying agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
(d) Anything in this Section to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of this Indenture, or for
any other reason, pay or cause to be paid to the Trustee all sums held in trust
by it or any paying agent hereunder as required by this Section, such sums to be
held by the Trustee upon the trusts herein contained.
(e) Anything in this Section to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section is subject to
the provisions of Sections 12.02 and 12.03.
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ARTICLE FIVE
SECURITYHOLDER LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 5.01. SECURITYHOLDER LISTS. The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee with respect
to the Securities of each series:
(a) semi-annually, not later than each Interest Payment Date
(in the case of any series having semi-annual Interest Payment Dates) or not
later than the dates determined pursuant to Section 2.01 (in the case of any
series not having semi-annual Interest Payment Dates) 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 the Regular Record Date (or as of such other
date as may be determined pursuant to Section 2.01 for such series) therefor,
and
(b) at such other times as the Trustee may request in writing,
within thirty days after receipt by the Company of any such request, a list in
such form as the Trustee may reasonably require of the names and addresses of
the Holders of Securities of the particular series specified by the Trustee as
of a date not more than fifteen days prior to the time such information is
furnished; provided, however, that if and so long as the Trustee shall be the
Security Registrar any such list shall exclude names and addresses received by
the Trustee in its capacity as Security Registrar, and if and so long as all of
the Securities of any series are Registered Securities, such list shall not be
required to be furnished.
SECTION 5.02. PRESERVATION AND DISCLOSURE OF LISTS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
Holders of each series of Securities contained in the most recent list furnished
to it as provided in section 5.01 or received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as provided
in Section 5.01 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter
referred to as "applicants") apply in writing to the Trustee and furnish to the
Trustee reasonable proof that each
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such applicant has owned a Security of such series for a period of at least six
months preceding the date of such application, and such application states that
the applicants' desire to communicate with other Holders of Securities of a
particular series (in which case the applicants must hold Securities of such
series) or with Holders of all Securities with respect to their rights under
this Indenture or under such Securities and it 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 to such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section, or
(2) inform such applicants as to the approximate number of
Holders of Securities of such series or 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 the provisions of
subsection (a) of this Section, and as to the approximate cost of
mailing to such Securityholders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford to such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of such series or all Securities, as the case
may be, whose name and address appear in the information preserved at the time
by the Trustee in accordance with the provisions of subsection (a) of this
Section 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 Securities and Exchange
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
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 said
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, said Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained
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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 Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of the Company or of the Trustee shall be
held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with the
provisions of subsection (b) of this Section, 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
said subsection (b).
SECTION 5.03. REPORTS BY THE COMPANY. The Company covenants:
(a) to file with the Trustee within fifteen days after the
Company is required to file the same with the Securities and Exchange
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as said
Commission may from time to time by rules and regulations prescribe) which the
Company may be required to file with said Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not
required to file information, documents or reports pursuant to either of such
sections, then to file with the Trustee and said Commission, in accordance with
rules and regulations prescribed from time to time by said Commission, such of
the supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Securities and Exchange
Commission, in accordance with the rules and regulations prescribed from time to
time by said Commission, such additional information, documents, and reports
with respect to compliance by the Company with the conditions and covenants
provided for in this Indenture as may be required from time to time by such
rules and regulations;
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(c) to transmit by mail to all the Holders of Securities of
each series, as the names and addresses of such Holders appear on the Security
Register, within thirty days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by the
Company with respect to each such series pursuant to subsections (a) and (b) of
this Section as may be required by rules and regulations prescribed from time to
time by the Securities and Exchange Commission; and
(d) If Unregistered Securities of any series are Outstanding,
to file with the listing agent of the Company with respect to such series such
documents and reports of the Company as may be required from time to time by the
rules and regulations of any stock exchange on which such Unregistered
Securities are listed.
SECTION 5.04. REPORTS BY THE TRUSTEE. (a) On or before July
15, and on or before July 15 of each year thereafter, so long as any Securities
of any series are Outstanding hereunder, the Trustee shall transmit to the
Holders of Securities of such series, as provided in subsection (c) of this
Section, a brief report (if required by Section 313(a) of the Trust Indenture
Act of 1939) dated as of the preceding May 15, with respect to:
(1) its eligibility under Section 7.09, and its qualifications
under Section 7.08, or in lieu thereof, if to the best of its knowledge
it has continued to be eligible and qualified under such Sections, a
written statement to such effect;
(2) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities, on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such advances
if such advances so remaining unpaid aggregate not more than one-half
of one percent of the principal amount of the Securities for any series
outstanding on the date of such report;
(3) the amount, interest rate, and maturity date of all other
indebtedness owing by the Company (or by
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any other obligor on the Securities) to the Trustee in its individual
capacity, on the date of such report, with a brief description of any
property held as collateral security therefor, except an indebtedness
based upon a creditor relationship arising in any manner described in
paragraphs (2), (3), (4), or (6) of subsection (b) of Section 7.13;
(4) the property and funds, if any, physically in the
possession of the Trustee as such on the date of such report;
(5) any additional issue of Securities of such series which it
has not previously reported; and
(6) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities, except action
in respect of a default, notice of which has been or is to be withheld
by it in accordance with the provisions of Section 6.07.
(b) The Trustee shall transmit to the Holders of Securities,
as provided in subsection (c) of this Section, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee (as such)
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this Indenture), for the
reimbursement of which it claims or may claim a lien or charge prior to that of
the Securities of any series on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this subsection
(b), except that the Trustee for each series shall not be required (but may
elect) to report such advances if such advances remaining unpaid at any time
aggregate ten percent or less of the principal amount of Securities for such
series outstanding at such time, such report to be transmitted within ninety
days after such time.
(c) Reports pursuant to this Section shall be transmitted by
mail:
(i) to all Holders of Registered Securities,
as the names and addresses of such Holders appear
upon the Security Register;
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(ii) to such other Holders of Securities as have,
within two years preceding such transmission, filed their
names and addresses with the Trustee for that purpose; and
(iii) to each Holder of a Security whose name and
address are preserved at the time by the Trustee as provided
in Section 5.02.
(d) A copy of each such report shall, at the time of such
transmission to Holders of Securities of a particular series, be filed by the
Trustee with each stock exchange upon which the Securities of such series are
listed and also with the Securities and Exchange Commission. The Company agrees
to notify the Trustee when and as the Securities of any series become listed on
any stock exchange.
ARTICLE SIX
REMEDIES ON DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. In case one or more of the
following Events of Default with respect to a particular series of Securities
shall have occurred and be continuing:
(a) default in the payment of the principal of (or premium, if
any, on) any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or
otherwise; or
(b) default in the payment of any installment of interest, if
any, or in the payment of any Additional Amount upon any of the Securities of
such series as and when the same shall become due and payable, and continuance
of such default for a period of thirty days; or
(c) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the Company in
this Indenture applicable to Securities of such series for a period of ninety
days after the date on which written notice of such failure, specifying such
failure and requiring the Company to remedy the same and stating that such
notice is a "Notice of Default" hereunder, shall have been given to the Company
by the Trustee, or to the Company and the Trustee by the Holders of at least
twenty-five percent in aggregate principal amount of the Securities of such
series at the time Outstanding; or
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(d) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Company or for any
substantial part of its property, or ordering the winding-up or liquidation of
its affairs and such decree or order shall remain unstayed and in effect for a
period of ninety days; or
(e) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or similar official) of the Company or for any substantial part of its
property, or shall make any general assignment for the benefit of creditors; or
(f) any other Event of Default provided with respect to
Securities of such series;
then in each and every such case, unless the principal amount of all the
Securities of such series shall have already become due and payable, either the
Trustee or the Holders of not less than twenty-five percent in aggregate
principal amount of the Securities of such series then Outstanding, by notice in
writing to the Company (and to the Trustee if given by Holders of such
Securities) may declare the principal amount of all the Securities (or, with
respect to Original Issue Discount Securities, such lesser amount as may be
specified in the terms of such Securities) of such series to be due and payable
immediately, and upon any such declaration such principal amount (or specified
amount) shall become and shall be immediately due and payable, any provision of
this Indenture or the Securities of such series contained to the contrary
notwithstanding. The foregoing provisions, however, are subject to the
conditions that if, at any time after the principal of the Securities of any
series shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or entered as
hereinafter provided, the Company shall pay or shall deposit with the Trustee a
sum sufficient to pay all matured installments of interest, if any, expand all
Additional Amounts, if any, due upon all the Securities of such series and the
principal of (and premium, if any, on) all Securities of such series (or, with
respect to Original Issue Discount Securities, such lesser amount as may be
specified in the terms of such Securities), which shall have
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become due otherwise than by acceleration (with interest, if any, upon such
principal and premium, if any, and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest and
Additional Amounts, if any, at the same rate as the rate of interest specified
in the Securities of such series, as the case may be (or, with respect to
Original Issue Discount Securities at the rate specified in the terms of such
securities for interest on overdue principal thereof upon maturity, redemption
or acceleration of such series, as the case may be), to the date of such payment
or deposit), and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except
as a result of its negligence or bad faith, and any and all defaults under the
Indenture, other than the nonpayment of amounts which shall have become due by
acceleration, shall have been remedied, then and in every such case the Holders
of a majority in aggregate principal amount of the Securities of such series
then Outstanding, by written notice to the Company and to the Trustee, may
rescind and annul such declaration and its consequences; provided no such waiver
or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company, the Trustee and the Holders of Securities, as the case may be,
shall be restored respectively to their former positions and rights hereunder,
and all rights, remedies and powers of the Company, the Trustee and the Holders
of Securities, as the case may be, shall continue as though no such proceedings
had been taken.
SECTION 6.02. PAYMENT OF SECURITIES ON DEFAULT; SUIT THEREFOR.
The Company covenants that (1) in case default shall be made in the payment of
any installment of interest, if any, on any of the Securities of any series or
any Additional Amounts in payable respect of any of the Securities of any
series, as and when the same shall become due and payable, and such default
shall have continued for a period of thirty days, or (2) in case default shall
be made in the payment of the principal of (or premium, if any, on) any of the
Securities of any series, as and when the same shall have become due and
payable, whether upon maturity of such series or upon redemption or upon
declaration or otherwise, then upon demand of the Trustee, the Company will pay
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to the Trustee, for the benefit of the Holders of the Securities of such series,
and the coupons, if any, appertaining to such Securities, the whole amount that
then shall have become due and payable on all such Securities of such series and
such coupons, for principal (and premium, if any) or interest, if any, or
Additional Amounts, if any, as the case may be, with interest upon the overdue
principal (and premium, if any) and (to the extent that payment of such interest
is enforceable under applicable law) upon overdue installments of interest, if
any, and Additional Amounts, if any, at the same rate as the rate of interest
specified in the Securities of such series (or, with respect to Original Issue
Discount Securities, at the rate specified in the terms of such Securities for
interest on overdue principal thereof upon maturity, redemption or
acceleration); and, in addition thereto, such further amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other reasonable expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Company or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Company or other obligor upon such Securities wherever situated
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy
or for the reorganization of the Company or any other obligor upon Securities of
any series under Title 11 of the United States Code or any other applicable law,
or in case a receiver or trustee shall have been appointed for the property of
the Company or such other obligor, or in the case of any other judicial
proceedings relative to the Company or such other obligor, or to the creditors
or property of the Company or such other obligor, 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 pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal (or, with respect to Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of that
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series), and premium, if any, interest, if any, and Additional Amounts, if any,
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 reasonable compensation to the
Trustee, its agents, attorneys and counsel, and for reimbursement of all
reasonable expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith) and of the Holders of
the Securities and coupons of such series allowed in any such judicial
proceedings relative to the Company or other obligor upon the Securities of such
series, or to the creditors or property of the Company or such other obligor,
and to collect and receive any moneys or other property payable or deliverable
on any such claims, and to distribute all amounts received with respect to the
claims of the Securityholders of such series and of the Trustee on their behalf;
and any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Holders of the Securities and coupons of such series
to make payments to the Trustee and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders of such series, to pay
to the Trustee such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other
reasonable expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith.
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 in any such proceeding.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the Trustee
without the possession of any of the Securities or coupons appertaining to such
Securities, or the production thereof on any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the Trustee shall be
brought in its own name and as trustee of an express trust, and any recovery of
judgment shall be for the ratable benefit of the Holders of the securities or
coupons appertaining thereto in respect of which such judgment has been
recovered.
In case of a default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of
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such rights, either at law or in equity or in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 6.03. APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any
moneys collected by the Trustee pursuant to Section 6.02 shall be applied in the
order following, at the date or dates fixed by the Trustee and, in case of the
distribution of such moneys on account of principal (or premium, if any) or
interest, if any, upon presentation of the several Securities and coupons in
respect of which moneys have been collected, and stamping thereon the payment,
if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of reasonable costs and
expenses applicable to such series of collection, reasonable
compensation to the Trustee, its agents, attorneys and counsel,
and all other reasonable expenses and liabilities incurred, and
all advances made, by the Trustee except as a result of its
negligence or bad faith;
SECOND: In case the principal of the Securities in respect of
which moneys have been collected shall not have become due, to the payment of
interest, if any, and Additional Amounts, if any, on the Securities of such
series in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the same rate as the rate of
interest, if any, and Additional Amounts, if any, specified in the Securities of
such series (or, with respect to Original Issue Discount Securities, at the rate
specified in the terms of such Securities for interest on overdue principal
thereof upon maturity, Redemption or acceleration), such payments to be made
ratably to the persons entitled thereto, without discrimination or preference;
and
THIRD: In case the principal of the Securities in respect of
which moneys have been collected shall have become due, by declaration or
otherwise, to the payment of the whole amount then owing and unpaid upon the
Securities of such series for principal (and premium, if any), interest, if any,
and Additional Amounts, if any, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest, if any, and
Additional Amounts, if any, at the same rate as the rate of interest specified
in the Securities of such
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series (or, with respect to Original Issue Discount Securities, at the rate
specified in the terms of such Securities for interest on overdue principal
thereof upon maturity, Redemption or acceleration); and in case such moneys
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal (and premium,
if any), interest, if any, and Additional Amounts, if any, without preference or
priority of principal and premium, if any, over interest, if any, and Additional
Amounts, if any, or of interest, if any, and Additional Amounts, if any, over
principal and premium, if any, or of any other Security of such series over any
other Security of such series, ratably to the aggregate of such principal and
premium, if any, and accrued and unpaid interest, if any, and Additional
Amounts, if any.
SECTION 6.04. PROCEEDINGS BY SECURITYHOLDERS. No Holder of any
Security of any series or of any coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceedings at law or in equity or in bankruptcy or otherwise,
upon or under or with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default and of the
continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than twenty-five percent in aggregate principal amount of the
Securities of such series then Outstanding shall have made written request upon
the Trustee to institute such action or proceedings in its own name as trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for sixty days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or
proceedings and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 6.06; it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security with every other taker and Holder and the Trustee, that no one or more
Holders of Securities or coupons appertaining to such Securities shall have any
right in any manner whatever by virtue of or by availing himself of any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holder of Securities or coupons appertaining to such Securities, or to
obtain or seek to obtain priority over or preference to any other such Holder or
to enforce any right under this Indenture, except in the manner herein provided
and for the equal, ratable and common benefit of all Holders of Securities and
coupons. For the protection and enforcement of
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the provisions of this Section, each and every Securityholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provisions in this Indenture,
however, the right of any Holder of any Security to receive payment of the
principal of (and premium, if any) and interest, if any, and Additional Amounts,
if any, on such Security or coupon, on or after the respective due dates
expressed in such Security or coupon, or to institute suit for the enforcement
of any such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder. With respect to Original Issue
Discount Securities, principal shall mean such amount as shall be due and
payable be specified in the terms of such Securities.
SECTION 6.05. REMEDIES CUMULATIVE AND CONTINUING. All powers
and remedies given by this Article Six to the Trustee or to the Holders of
Securities or coupons shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the Holders of Securities or coupons, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee or of any Holder of any of the Securities or coupons to exercise
any right or power accruing upon any default occurring and continuing as
aforesaid shall impair any such right or power or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 6.04, every power and remedy given by this Article Six or
by law to the Trustee or to the Holders of Securities or coupons may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 6.06. DIRECTION OF PROCEEDINGS. The Holders of a
majority in aggregate 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, however, that (subject to the provisions of Section 7.01) the
Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action or proceedings so
directed may not lawfully be taken or if the Trustee in good faith by its board
of directors or executive committee or a trust committee of
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directors or trustees and/or responsible officers shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability.
SECTION 6.07. NOTICE OF DEFAULTS. The Trustee shall, within
ninety days after the occurrence of a default with respect to the Securities of
any series, give notice of all defaults with respect to that series known to the
Trustee (i) if any Unregistered Securities of that series are then Outstanding,
to the Holders thereof, by publication at least once in an Authorized Newspaper
in the Borough of Manhattan, The City of New York and at least once in an
Authorized Newspaper in London, (ii) if any Unregistered Securities of that
series are then Outstanding, to all Holders thereof who have filed their names
and addresses with the Trustee as described in Section 5.04 by mailing such
notice to such Holders at such addresses and (iii) to all Holders of then
Outstanding Registered Securities of that series, by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register, unless
in each case such defaults shall have been cured before the mailing or
publication of such notice (the term "defaults" for the purpose of this Section
being hereby defined to be the events specified in Sections 6.01(a), (b), (c),
(d) and (e) and any additional events specified in the terms of any series of
Securities pursuant to Section 2.01, not including periods of grace, if any,
provided for therein, and irrespective of the giving of written notice specified
in Section 6.01(c) or in the terms of any Securities established pursuant to
Section 2.01); and provided that, except in the case of default in the payment
of the principal of or interest, if any, premium or Additional Amounts, if any,
on any of the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities of such series.
SECTION 6.08. UNDERTAKING TO PAY 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 costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses
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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
Securityholder of any series, or group of such Securityholders, holding in the
aggregate more than ten percent in aggregate principal amount of any Securities
of any series, or to any suit instituted by any Securityholders for the
enforcement of the payment of the principal of (or premium, if any), interest,
if any, or Additional Amounts, if any, on any Security on or after the due date
expressed in such Security.
SECTION 6.09. WAIVER OF PAST DEFAULTS. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts payable with respect to any
Security 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 this Indenture and the Securities of such series; but no such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
ARTICLE SEVEN
CONCERNING THE TRUSTEE
SECTION 7.01. DUTIES AND RESPONSIBILITIES OF TRUSTEE. The
Trustee, except during the continuance of an Event of Default of a particular
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to a particular series has occurred (which has not been cured), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
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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:
(a) prior to the occurrence of an Event of Default with respect to a
particular series and after the curing of all Events of Default with respect to
such series which may have occurred:
(1) the duties and obligations of the Trustees with respect to
such series shall be determined solely by the express provisions of
this Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or officers, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) 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 Securities pursuant to Section 6.06 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.
No provision of this Indenture shall be construed
as requiring the Trustee to expend or risk its own funds or otherwise to incur
any personal 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.
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SECTION 7.02. RELIANCE ON DOCUMENTS, OPINIONS, ETC. Subject to
the provisions of Section 7.01:
(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, consent, order, bond, debenture, note, coupon
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, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an instrument signed in the
name of the Company by the Chairman of the Board of Directors or any Vice
Chairman of the Board of Directors or the President or any Executive Vice
President or any vice President or the Treasurer and by the Secretary or any
Assistant Secretary or, if the other signatory is other than the Treasurer, any
Assistant Treasurer (unless other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution may be evidenced to the
Trustee by a copy thereof certified by the Secretary or any Assistant Secretary
of the Company;
(c) the Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered by it hereunder in good faith and in accordance
with such Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders, pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses, and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
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(f) 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 by it with due care
hereunder; and
(g) the Trustee shall not be liable for any action 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 7.03. NO RESPONSIBILITY FOR RECITALS, ETC. The
recitals contained herein and in the Securities, other than the Trustee's
certificate of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities, provided that the Trustee shall not be relieved
of its duty to authenticate Securities only as authorized by this Indenture. The
Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 7.04. OWNERSHIP OF SECURITIES OR COUPONS. The Trustee
or any agent of the Company or of the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities or coupons with the same
rights it would have if it were not Trustee, or an agent of the Company or of
the Trustee.
SECTION 7.05. MONEYS TO BE HELD IN TRUST. Subject to the
provisions of Section 12.04 hereof, all moneys received by the Trustee or any
paying agent shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from
other funds except to the extent required by law. Neither the Trustee nor any
paying agent shall be under any liability for interest on any moneys received by
it hereunder except such as it may agree with the Company to pay thereon. So
long as no Event of Default shall have occurred and be continuing, all interest
allowed on any such moneys shall be paid from time to time upon the written
order of the Company, signed by its Chairman of the Board of Directors or any
Vice Chairman of the Board of Directors or its President or any Executive Vice
President or any Vice President or its Treasurer or any Assistant Treasurer.
SECTION 7.06. COMPENSATION AND EXPENSES OF TRUSTEE. The
Company covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, reasonable
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compensation, and, except as otherwise expressly provided, the Company will pay
or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation,
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Company also covenants to indemnify the Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim of liability in the
premises. The obligations of the Company under this Section to compensate the
Trustee and to pay or reimburse the Trustee for reasonable expenses,
disbursements and advances shall constitute additional indebtedness hereunder.
Such additional indebtedness shall be secured by a lien prior to that of the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the Holders of particular
Securities or coupons.
SECTION 7.07. OFFICER'S CERTIFICATE AS EVIDENCE. Subject to
the provisions of Section 7.01, whenever in the administration of the provisions
of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such Certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. CONFLICTING INTEREST OF TRUSTEE. (a) If the
Trustee has or shall acquire any conflicting interest, as defined in this
Section, it shall, within ninety days after ascertaining that it has such
conflicting interest, either eliminate such conflicting interest or resign in
the manner and with the effect specified in Section 7.10.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this Section, the
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Trustee shall, within ten days after the expiration of such ninety-day period,
transmit notice of such failure to all Securityholders of the series affected by
the conflicting interest as the names and addresses of such Holders appear on
the Security Register.
(c) For the purposes of this Section the Trustee shall be
deemed to have a conflicting interest with respect to a particular series if
Securities of such series are in default (as such term is defined herein, but
exclusive of any period of grace or requirement of notice) and:
(1) the Trustee is trustee under this Indenture with respect
to the Outstanding Securities of any other series or is trustee under
another indenture under which any other securities, or certificates of
interest or participation in any other securities, of the Company are
outstanding, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Securities issued
under this Indenture, provided that there shall be excluded from the
operation of this paragraph this Indenture with respect to the
Securities of any series other than that series, and any other
indenture or indentures under which other securities, or certificates
of interest or participation in other securities of the Company are
outstanding if (i) this Indenture is, and, if applicable, this
Indenture and such other indenture or indentures are wholly unsecured
and ranks equally, and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act of 1939, unless the Securities
and Exchange Commission shall have found and declared by order pursuant
to subsection (b) of Section 305 or subsection (c) of Section 307 of
the Trust Indenture Act of 1939 that differences exist between the
provisions of this Indenture with respect to such particular series and
one or more other series in this Indenture and the provisions of such
other indenture or indentures which are so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture with respect to such particular series and
such other series or such other indenture or indentures, or (ii) the
Company shall have sustained the burden of proving, on application to
the Securities and Exchange Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture with respect to
such particular series and such other
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series or under this Indenture and such other indenture or indentures
is not so likely to involve a material conflict of interest as to make
it necessary in the public interest or for the protection of investors
to disqualify the Trustee from acting as such under this Indenture with
respect to such particular series and such other series or under this
Indenture and such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers
is an obligor upon the Securities of any series issued under this
Indenture or an underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with the Company or an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee, or representative
of the Company, or of an underwriter (other than the Trustee itself)
for the Company who is currently engaged in the business of
underwriting, except that (A) one individual may be a director or an
executive officer or both of the Trustee and a director or an executive
officer or both of the Company, but may not be at the same time an
executive officer of both the Trustee and the Company; (B) if and so
long as the number of directors of the Trustee in office is more than
nine, one additional individual may be a director or an executive
officer or both of the Trustee and a director of the Company; and (C)
the Trustee may be designated by the Company or by any underwriter for
the Company to act in the capacity of transfer agent, registrar,
custodian, paying agent, fiscal agent, escrow agent, or depositary, or
in any other similar capacity, or, subject to the provisions of
paragraph (1) of this subsection (c), to act as trustee, whether under
an indenture or otherwise;
(5) ten percent or more of the voting securities of the
Trustee is beneficially owned either by the Company or by any director,
partner or executive officer thereof, or twenty percent or more of such
voting securities is beneficially owned, collectively, by any two or
more of such persons; or ten percent or more of the voting securities
of the Trustee is
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beneficially owned either by an underwriter for the Company or by any
director, partner, or executive officer thereof, or is beneficially
owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, (A) five
percent or more of the voting securities, or ten percent or more of any
other class of security, of the Company, not including the Securities
issued under this Indenture and securities issued under any other
indenture under which the Trustee is also trustee, or (B) ten percent
or more of any class of security of an underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, five percent
or more of the voting securities of any person who, to the knowledge of
the Trustee, owns ten percent or more of the voting securities of, or
controls directly or indirectly or is under direct or indirect common
control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, ten percent
or more of any class of security of any person who, to the knowledge of
the Trustee, owns fifty percent or more of the voting securities of the
Company; or
(9) the Trustee owns, on the date of default on a Security or
any anniversary of such default, in the capacity of executor,
administrator, testamentary or inter vivos trustee, guardian, committee
or conservator, or in any other similar capacity, an aggregate of
twenty-five percent or more of the voting securities, or of any class
of security, of any person, the beneficial ownership of a specified
percentage of which would have constituted a conflicting interest under
paragraph (6), (7), or (8) of this subsection (c). As to any such
securities of which the Trustee acquired ownership through becoming
executor, administrator, or testamentary trustee of an estate which
included them, the provisions of the preceding sentence shall not
apply, for a period of two years from the date of such acquisition, to
the extent that such securities included in such estate do not exceed
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twenty-five percent of such voting securities or twenty-five percent of
any such class of security. Promptly after the dates of any such
default and the anniversary of such default if such default shall be
continuing, the Trustee shall make a check of its holdings of such
securities in any of the above-mentioned capacities as of such dates.
If the Company fails to make payment in full of principal of or
interest on any of the Securities when and as the same become due and
payable, and such failure continues for thirty days thereafter, the
Trustee shall make a prompt check of its holdings of such securities in
any of the above-mentioned capacities as of the date of the expiration
of such thirty-day period, and after such date, notwithstanding the
foregoing provisions of this paragraph (9), all such securities so held
by the Trustee, with sole or joint control over such securities vested
in it, shall, but only so long as such failure shall continue, be
considered as though beneficially owned by the Trustee for the purposes
of paragraphs (6), (7), and (8) of this subsection (c).
The specification of percentages in paragraphs (5) to (9),
inclusive, of this subsection (c) shall not be construed as indicating that the
ownership of such percentages of the securities of a person is or is not
necessary or sufficient to constitute direct or indirect control for the
purposes of paragraph (3) or (7) of this subsection (c).
For the purposes of paragraphs (6), (7), (8), and (9) of this
subsection (c) only, (A) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation, in
any such note or evidence of indebtedness; (B) an obligation shall be deemed to
be in default when a default in payment of principal shall have continued for
thirty days or more and shall not have been cured; and (C) the Trustee shall not
be deemed to be the owner or Holder of (i) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as defined in clause (B) above, or (ii) any security which it holds as
collateral security under this Indenture, irrespective of any default hereunder,
or (iii) any security which it holds as agent for collection, or as custodian,
escrow agent, or depositary, or in any similar representative capacity.
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Except as provided above, the word "security" or "securities"
as used in this Indenture shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or participation in
any profit sharing agreement, collateral-trust certificate, preorganization
certificate or subscription, transferable share, investment contract,
voting-trust certificate, certificate of deposit for a security, fractional
undivided interest in oil, gas, or other mineral rights, or, in general, any
interest or instrument commonly known as a "security", or any certificate of
interest or participation in, temporary or interim certificate for, receipt
following guarantee of, or warrant or right to subscribe to or purchase, any of
the foregoing.
(d) For the purposes of this Section:
(1) The term "underwriter" when used with reference to the
Company shall mean every person who, within one year prior to the time
as of which the determination is made, has purchased from the Company
with a view to, or has offered or has sold for the Company in
connection with, the distribution of any security of the Company
outstanding at such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has participated or
has had a participation in the direct or indirect underwriting if any
such undertaking, but such terms shall not include a person whose
interest was limited to a commission from an underwriter or dealer not
in excess of the usual and customary distributors or sellers,
commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with respect
to any organization whether incorporated or unincorporated.
(3) The term "person" shall mean an individual, a corporation,
a partnership, an association, a joint-stock company, a trust, an
unincorporated organization, or a government or political subdivision
thereof. As used in this paragraph, the term "trust" shall include only
a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or Holder thereof to vote in the
direction or management of the
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affairs of a person, or any security issued under or pursuant to any
trust, agreement or arrangement whereby a trustee or trustees or agent
or agents for the owner or Holder of such security are presently
entitled to vote in the direction or management of the affairs of a
person.
(5) The term "Company" shall mean any obligor upon the
Securities.
(6) The term "executive officer" shall mean the president,
every vice president, every trust officer, the cashier, the secretary,
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated.
(e) The percentages of voting securities and other securities
specified in this Section shall be calculated in accordance with the following
provisions:
(A) A specified percentage of the voting securities of the
Trustee, the Company or any other person referred to in this Section
(each of whom is referred to as a "person" in this paragraph) means
such amount of the outstanding voting securities of such person as
entitles the Holder or Holders thereof to cast such specified
percentage of the aggregate votes which the Holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(B) A specified percentage of a class of securities of a
person means such percentage of the aggregate amount of securities of
the class outstanding.
(C) The term "amount," when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
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(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund relating
to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as security for
an obligation of the issuer not in default as to principal or
interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer
shall be deemed outstanding if any person other than the
issuer is entitled to exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another security if both securities confer upon the holder or holders
thereof substantially the same rights and privileges; provided,
however, that in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
SECTION 7.09. ELIGIBILITY OF TRUSTEE. There shall at all times
be a trustee hereunder which shall be a corporation organized and doing business
under the laws of the United States or of any State or Territory thereof or of
the District of Columbia, which (a) is authorized under such laws to exercise
corporate trust powers, and (b) is subject to supervision or reexamination by
Federal, State, Territorial or District of Columbia authority and (c) shall have
at all times a combined capital and surplus of not less than one hundred million
dollars. If such corporation publishes reports of condition at least annually,
pursuant to law, or to the requirements of the
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aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation at any time shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, the Trustee shall
resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. RESIGNATION OR REMOVAL OF TRUSTEE. (a) The
Trustee, or any trustee or trustees hereafter appointed, may, upon sixty days'
written notice to the Company, at any time resign with respect to one or more or
all series by giving written notice of resignation to the Company, and (i) if
any Unregistered Securities of a series affected are then outstanding, by giving
notice of such resignation to the Holders thereof, by publication at least once
in an Authorized Newspaper in London, (ii) if any Unregistered Securities of a
series affected are then outstanding, by mailing notice of such resignation to
the Holders thereof who have filed their names and addresses with the Trustee as
described in Section 5.04 at such addresses as were so furnished to the Trustee
and (iii) by mailing notice of such resignation to the Holders of then
outstanding Registered Securities of each series affected at their addresses as
they shall appear on the Security Register. Upon receiving such notice of
resignation the Company shall promptly a point a successor trustee with respect
to the applicable series by written instrument, in duplicate, executed by order
of the Board of Directors of the Company, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted appointment
within thirty days after the mailing of such notice of resignation to the
Securityholders, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 6.08,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply, with the provisions
of subsection (a) of Section 7.08 with respect to
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any series of Securities after written request therefor by the Company
or by any Securityholder who has been a bona fide Holder of a Security
or Securities of such series for at least six months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 with respect to any series of Securities
and shall fail to resign after written request therefor by the Company
or by any such Securityholder, 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, the Company may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee with respect to
such series by written instrument, in duplicate, executed by order of the Board
of Directors of the Company, one copy of which instrument shall be delivered to
the Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.08, any Securityholder of such series who has been a
bona fide Holder of a Security or Securities of the applicable 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. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of
the Securities of any series may at any time remove the Trustee with respect to
Securities of such series and appoint a successor trustee with respect to the
Securities of such series.
(d) Any resignation or removal of the Trustee and any
appointment of a successor trustee pursuant to any of the provisions of this
Section shall become effective upon acceptance of appointment by the successor
trustee as provided in section 7.11.
SECTION 7.11. ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor
trustee appointed as provided in Section 7.10 shall
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execute, acknowledge and deliver to the Company and to its predecessor trustee
an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee with respect to all or any
applicable series shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations with respect to such series of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of the Company or of the successor trustee,
the trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the trustee
so ceasing to act. Upon request of any such successor trustee, the Company shall
execute any and all instruments in writing in order more fully and certainly to
vest in and confirm to such successor trustee all such rights and powers. Any
trustee leasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 7.06.
In case of the appointment hereunder of a successor trustee
with respect to the Securities of one or more (but not all) series, the Company,
the predecessor 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 predecessor Trustee with respect to the Securities of any series as to
which the predecessor Trustee is not retiring shall continue to be vested in the
predecessor 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 appointment as provided in
this Section unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 7.08 and eligible under the
provisions of section 7.09.
Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall give notice of the
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succession of such trustee hereunder (a) if any Unregistered Securities of a
series affected are then Outstanding, to the Holders thereof, by publication of
such notice at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and at least once in an Authorized Newspaper, in
London, (b) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof who have filed their names and addresses
with the Trustee pursuant to Section 5.04, by mailing such notice to such
Holders at such addresses as were so furnished to the Trustee (and the Trustee
shall make such information available to the Company for such purpose) and (c)
to the Holders of Registered Securities of each series affected, by mailing such
notice to such Holders at their addresses as they shall appear on the Security
Register. If the Company fails to mail such notice in the prescribed manner
within ten days after the acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be so given at the expense of
the Company.
SECTION 7.12. SUCCESSOR BY MERGER, ETC. 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 the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be qualified
under the provisions of Section 7.08 and eligible under the provisions of
Section 7.09, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION 7.13. LIMITATIONS ON RIGHTS OF TRUSTEE AS CREDITOR.
(a) Subject to the provisions of subsection (b) of this Section, if the Trustee
shall be or shall become a creditor directly or indirectly, secured or
unsecured, of the Company or on any other obligor on the Securities within three
months prior to a default, as defined in subsection (c) of this Section, or
subsequent to such a default, then, unless and until such default shall be
cured, the Trustee shall set apart and hold in a special account for the benefit
of the Trustee individually, the Holders of the Securities of any series for
which it is acting as trustee, the Holders of any coupons appertaining to such
Securities, and the holders of other indenture securities (as defined in
subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the
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beginning of such three months' period and valid as against the Company
and its other creditors, except any such reduction resulting from the
receipt or disposition of any property described in paragraph (2) of
this subsection or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed
by or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors, in such property or such proceeds.
Nothing herein contained, however, shall affect the right of
the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in cash,
securities, or other property in respect of claims filed against the
Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or
applicable State law;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received the Trustee had no reasonable cause to believe
that a default as defined in subsection (c) of this Section would occur
within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such
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paragraph (8) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such three months' period for property held
as security at the time of such substitution shall, to the extent of the fair
value of the property released, have the same status as the property released,
and, to the extent that any claim referred to in any of such paragraphs is
created in renewal of or in substitution for or for the purpose of prepaying or
refunding any preexisting claim of the Trustee as such creditor, such claim
shall have the same status as such preexisting claim.
If the Trustee shall be required to account, the funds
property held in such special account and the Proceeds thereof shall be
apportioned between the Trustee, the Securityholders and the holders of other
indenture securities in such manner that the Trustee, the Securityholders and
the holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or "applicable State law, the
same percentage of their respective claims, figured before crediting to the
claim of the Trustee anything on account of the receipt by it from the Company
of the funds and property in such special account and before crediting to the
respective claims of the Trustee, the Securityholders and the holders of the
other indenture securities, dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law, but after crediting
thereon receipts on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from the funds and
property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or in proceedings for
reorganization pursuant to Title 11 of the United States Code or applicable
State law, whether such distribution is made in cash, securities, or other
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership, or proceeding for reorganization is pending shall have
jurisdiction
(i) to apportion between the Trustee, the Securityholders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such
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apportionment, in whole or in part, to give to the provisions of this paragraph
due consideration in determining the fairness of the distributions to be made to
the Trustee, the Securityholders and the holders of other indenture securities
with respect to their respective claims, in which event it shall not be
necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the
beginning of such three months' period shall be subject to the provisions of
this subsection (a) as though such resignation or removal had not occurred. If
any Trustee has resigned or been removed prior to the beginning of such three
months' period, it shall be subject to the provisions of this subsection (a) if
and only if the following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
(b) There shall be excluded from the operation of subsection
(a) of this Section a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of circumstances
surrounding the making thereof is given to the Securityholders at the
time and in the manner provided in this Indenture;
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(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances, or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section.
(c) As used in this Section:
(1) The term "default" shall mean any failure to make payment
in full of the principal of or interest upon any of the Securities or
upon the other indenture securities when and as such principal or
interest becomes due and payable.
(2) The term "other indenture securities" shall mean
securities upon which the Company is an obligor (as defined in the
Trust Indenture Act of 1939) outstanding under any other indenture (A)
under which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) The term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand.
(4) The term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company for the purposes of financing the
purchase, processing, manufacture, shipment, storage or sale of goods,
wares or merchandise and which is secured by documents evidencing title
to,
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possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation.
(5) The term "Company" shall mean any obligor upon the
Securities.
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. ACTION BY SECURITYHOLDERS. Whenever in this
Indenture it is provided that the Holders of a specified aggregate principal
amount of the outstanding Securities of any series may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action), the fact that at the time
of taking any such action the Holders of such specified amount have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of the Holders of securities voting
in favor thereof at any meeting of Securityholders duly called and held in
accordance with the provisions of Article Nine, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of
Securityholders.
In determining whether the Holders of a specified aggregate
principal amount of the Outstanding Securities have taken any action (including
the making of any demand or request, the giving of any notice, consent or waiver
or the taking of any other action), the principal amount of any original Issue
Discount Security that may be counted in making such determination and that
shall be deemed to be outstanding for such purposes shall be equal to the amount
of the principal thereof that could be declared to be due and payable upon an
Event of Default pursuant to the terms of such Original Issue Discount Security
at the time the taking of such action is evidenced to the Trustee.
SECTION 8.02. PROOF OF EXECUTION BY SECURITYHOLDERS. Subject
to the provisions of Sections 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Securityholder or its
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agent or proxy shall be sufficient if made in the following
manner:
(a) In the case of Holders of Unregistered Securities, the
fact and date of the execution by any such person of any instrument may be
proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is by or on behalf of
any legal entity other than an individual, such certificate or affidavit shall
also constitute sufficient proof of the authority of the person executing the
same. The fact of the holding by any Holder of a Security of any series, and the
identifying number of such Security and the date of his holding the same, may be
proved by the production of such Security or by a certificate executed by any
trust company, bank, banker or recognized securities dealer wherever situated
satisfactory to the Trustee, if such certificate shall be deemed by the Trustee
to be satisfactory. Each such certificate shall be dated and shall state that on
the date thereof a Security of such series bearing a specified identifying
number was deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the person named in such certificate. Any such
certificate may be issued in respect of one or more Securities of one or more
series specified therein. The holding by the person named in any such
certificate of any Securities of any series specified therein shall be presumed
to continue for a period of one year from the date of such certificate unless at
the time of any determination of such holding (1) another certificate bearing a
later date issued in respect of the same Securities shall be produced, or (2)
the Security of such series specified in such certificate shall be produced by
some other person, or (3) the Security of such series specified in such
certificates shall have ceased to be outstanding. Subject to Sections 7.01. 7.02
and 9.05, the fact and date of the execution of any such instrument and the
amount and numbers of Securities of any series held by the person so executing
such instrument and the amount and numbers of any Security or Securities for
such series may also be proven in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee for such series or in any other
manner which the Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of
such Securities shall be proved by the Security Register or by a
certificate of the Security Registrar.
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SECTION 8.03. WHO ARE DEEMED ABSOLUTE OWNERS. The Company, the
Trustee, any paying agent, any transfer agent and any Security Registrar may
treat the Holder of any Unregistered Security and the Holder of any coupon as
the absolute owner of such Unregistered Security or coupon (whether or not such
Unregistered Security or coupon shall be overdue) for the purpose of receiving
payment thereof or on account thereof and for all other purposes and neither the
Company, the Trustee, any paying agent, any transfer agent nor any Security
Registrar shall be affected by any notice to the contrary. The Company, the
Trustee, any paying agent, any transfer agent and any Security Registrar may,
subject to Section 2.04 hereof, treat the person in whose name a Registered
Security shall be registered upon the Security Register as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue) for the purpose of receiving payment thereof or on account thereof and
for all other purposes and neither the Company, the Trustee, any paying agent,
any transfer agent nor any Security Registrar shall be affected by any notice to
the contrary.
SECTION 8.04. COMPANY-OWNED SECURITIES DISREGARDED. In
determining whether the Holders of the required aggregate principal amount of
Securities have given any request, demand, authorization, direction, notice,
consent or waiver under this Indenture, Securities which are owned by the
Company or by any person directly or indirectly controlling or controlled by or
under direct or indirect control with the Company, shall be disregarded and
deemed not to be outstanding for the purpose of any such determination, except
that for the purpose of determining whether the Trustee shall be protected in
relying on any such request, demand, authorization, direction, notice, consent
or waiver only Securities which the Trustee knows are so owned shall be
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section if the pledgee shall
establish to the satisfaction of the Trustee the pledgor's right to vote such
securities and that the pledgee is not a person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company. In the case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
SECTION 8.05. REVOCATION OF CONSENTS; FUTURE SECURITYHOLDERS
BOUND. At any time prior to the taking of any action by the Holders of the
aggregate principal amount of the Outstanding Securities specified in this
Indenture in connection
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with such action, any Holder of a Security the identifying number of which is
shown by the evidence to be included in the Securities the Holders of which have
consented to such action may, by filing written notice with the Trustee at its
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid, any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Security issued
in exchange or substitution therefor Irrespective of whether or not any notation
in regard thereto is made upon such Security. Any action taken by the Holders of
the aggregate principal amount of the Securities specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the Holders of all the Securities of each series intended to be
affected thereby.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
SECTION 9.01. PURPOSES OF MEETINGS. A meeting of
Securityholders of 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 Securityholders 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 10.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Securities of such series, as the case may be, under any other
provision of this Indenture or under applicable law.
SECTION 9.02. CALL OF MEETINGS BY TRUSTEE. The Trustee may at
any time call a meeting of Holders of Securities of any series to take any
action specified in Section 9.01, to be held
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at such time and at such place in the Borough of Manhattan, The City of New
York, or in London, as the Trustee shall determine. Notice of every meeting of
the Holders of Securities of any or all 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 given (i) if any Unregistered Securities of such series are
then outstanding, to all Holders thereof, by publication at least twice in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least twice in an Authorized Newspaper in London prior to the date fixed for the
meeting, the first publication, in each case, to be not less than twenty nor
more than one hundred eighty days prior to the date fixed for the meeting and
the last publication to be not more than five days prior to the date fixed for
the meeting, (ii) if any Unregistered Securities of such series are then
Outstanding, to all Holders thereof who have filed their names and addresses
with the Trustee as described in Section 5.04, by mailing such notice to such
Holders at such addresses, not less than twenty nor more than one hundred eighty
days prior to the date fixed for the meeting and (iii) to all Holders of then
Outstanding Registered Securities of such series, by mailing such notice to such
Holders at their addresses as they shall appear on the Security Register, not
less than twenty nor more than one hundred eighty days prior to the date fixed
for the meeting. Failure of any Holder or Holders to receive such notice or any
defect therein shall in no case affect the validity of any action taken at such
meeting. Any meeting of Holders of Securities of any series shall be valid
without notice if the Holders of all Securities of such series 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 9.03. CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS.
In case at any time the Company, pursuant to a Board Resolution, or the Holders
of at least ten percent in aggregate principal amount of the Securities of any
series, as the case may be, then Outstanding, shall have requested the Trustee
to call a meeting of Securityholders of Securities of such series to take any
action authorized in Section 9.01, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed or published as provided in Section 9.02, the
notice of such meeting within thirty days after receipt of such request, then
the Company or the Holders of Securities of such series in the amount above
specified may determine the time and the place in said Borough of Manhattan or
London for such meeting and may call such meeting to take any action authorized
in Section 9.01,
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by mailing or publishing notice thereof as provided in Section
9.02.
SECTION 9.04. QUALIFICATION FOR VOTING. To be entitled to vote
at any meeting of Securityholders a person shall be a Holder of one or more
Securities of the series with respect to which a meeting is being held or a
person appointed by an instrument in writing as proxy by such a Holder. The only
persons who shall be entitled to be present or to speak at any meeting of the
Securityholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 9.05. REGULATIONS. Notwithstanding any other
provisions of this Indenture, the Trustee may make such reasonable regulations
as it may deem advisable for any meeting of Securityholders, 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 Securityholders as provided in Section 9.03, in which case the
Company or the Securityholders 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 and entitled to
vote.
Subject to the provisions of Sections 8.01 and 8.04, at any
meeting of Securityholders of any series, each Securityholder or proxy shall be
entitled to one vote for each $1,000 principal amount at maturity 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 not to be Outstanding. The
chairman of the meeting shall have no right to vote except as a Securityholder
or proxy. Any meeting of Securityholders duly called pursuant to the provisions
of Section 9.02 or 9.03 may be adjourned from time to time, and the meeting may
be held as so adjourned without further notice.
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SECTION 9.06. VOTING. The vote upon any resolution submitted
to any meeting of Securityholders shall be by written ballot on which shall be
subscribed the signatures of the Securityholders or proxies and on which shall
be inscribed the identifying number or numbers or to which shall be attached a
list of identifying numbers of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting or against any resolution and who
shall make and file with the secretary of the meeting their verified reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Securityholders 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 9.02. 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.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
SECURITYHOLDERS. The Company, when authorized by Board Resolution, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
for one or more of the following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by any successor
corporation of the covenants, agreements and obligations of the Company pursuant
to Article Eleven hereof;
(b) to add to the covenants of the Company for the Holders of
all or any series of Securities, or the coupons appertaining to such Securities,
to add any additional Events of Default with respect to all or any series of
Securities, or the
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coupons appertaining to such Securities, or to surrender any right or power
conferred upon the Company;
(c) to add or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the issuance of
global Securities or Securities of any series in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, and to
provide for exchangeability of such Securities with Registered Securities issued
hereunder and to make all appropriate changes for such purpose, and to add or
change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of uncertificated Securities of
any series;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture or in the terms of
any series of Securities which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture or in the terms of
any series of Securities; to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture or in the terms of any series of Securities as shall not adversely
affect the interests of the Holders of any series of Securities or any coupons
appertaining to such securities in any material respect;
(e) to evidence and provide for the acceptance and appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add or change any 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 7.11;
(f) to establish the form or terms of Securities of any series
as permitted by Sections 2.03 and 2.01; and
(g) to provide for the terms and conditions of conversion into
Common Stock of the Securities of any series which are convertible into Common
Stock, if different from those set forth in Article 15.
The Trustee is hereby authorized to join with the Company in
the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained
and to accept the conveyance, transfer, assignment, mortgage or pledge
of any property thereunder, but the Trustee shall not be obligated to
enter
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into any such supplemental indenture which adversely affects the
Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions of
this Section may be executed by the Company and the Trustee without the consent
of the Holders of any of the Securities at the time outstanding, notwithstanding
any of the provisions of Section 10.02.
SECTION 10.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF
SECURITYHOLDERS. With the consent (evidenced as provided in Section 8.01) of the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities of each series affected by such supplemental indenture,
the Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or modifying in any manner the rights of the Holders of the Securities
of each such series or any coupons appertaining to such Securities; provided,
however, that, without the consent of the Holder of each Outstanding Security
affected thereby, no such supplemental indenture shall:
(a) extend the stated maturity of any Securities, or reduce
the principal amount thereof or premium, if any, or reduce the rate or extend
the time of payment of any interest or Additional Amounts thereon or reduce the
amount due and payable upon acceleration of the maturity thereof or the amount
provable in bankruptcy, or make the principal of, or interest, premium or
Additional Amounts on any Security payable in any coin or currency other than
that provided in such Security,
(b) impair the right to institute suit for the enforcement of
any such payment on or after the stated maturity thereof (or, in the case of
Redemption, on or after the Redemption date therefor),
(c) reduce the aforesaid percentage in principal amount of
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required pursuant to
Section 6.01 to waive defaults, or
(d) modify any of the provisions of this Section or Section
6.09, except to increase any such percentage or to
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provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section or the deletion of this proviso, in
accordance with the requirements of Sections 7.11 and 10.01(e).
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.
An amendment under this Section 10.02 may not make any change
that adversely affects the rights under Article Fourteen of any holder of an
issue of Senior Indebtedness unless the holders of that issue, pursuant to its
terms, consent to the change.
Upon the request of the Company, accompanied by a copy of a
Board Resolution authorizing the execution of any such supplemental indenture,
and upon the filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution and delivery by the Company, and
the Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall give notice of such supplemental indenture (i) to the
Holders of then Outstanding Registered Securities of each series affected
thereby, by mailing a notice thereof by first-class mail to such Holders at
their addresses as they shall appear on the Security Register, (ii) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
the Holders thereof who have filed their names and addresses with the Trustee as
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described in Section 5.04, by mailing a notice thereof by first-class mail to
such Holders at such addresses as were so furnished to the Trustee and (iii) if
any Unregistered Securities of a series affected thereby are then Outstanding,
to all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in London and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to mail or publish such notice, or any defect therein, shall not,
however in any way impair or affect the validity of any such supplemental
indenture.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT; EFFECT OF
SUPPLEMENTAL INDENTURES. Any supplemental indenture executed pursuant to the
provisions of this Article Ten shall comply with the Trust Indenture Act of
1939, as then in effect. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Ten, this Indenture shall be and be
deemed to be modified and amended in accordance therewith and the respective
rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the Holders of Securities shall
thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and
7.02, may receive an opinion of Counsel as conclusive evidence that any such
supplemental indenture complies with the provisions of this Article Ten.
SECTION 10.04. NOTATION ON SECURITIES. Securities of any
series authenticated and delivered after the execution of any supplemental
indenture pursuant to the provision of this Article Ten may bear a notation in
form approved by the Trustee as to any matter provided for in such supplemental
indenture. New Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Company, to any
modification of this Indenture contained in any such supplemental indenture may
be prepared by the Company, authenticated by the Trustee and delivered, without
charge to the Securityholders, in exchange for the Securities of such series
then outstanding.
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ARTICLE ELEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 11.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. So long as any Securities shall be Outstanding, the Company shall not
consolidate with or merge into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person unless:
(a) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any), interest, if any,
and Additional Amounts, if any, on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be performed or
observed;
(b) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company as a result
of such transaction as having been incurred by the Company at the time of such
transaction, no Event of Default, and no event which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing;
(c) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance of any nature which would not be permitted by this Indenture, the
Company or such successor corporation or such person, firm or corporation, as
the case may be, shall take such steps as shall be necessary effectively to
secure the Securities (together with, if the Company so determines, any other
indebtedness for money borrowed of the Company then existing or thereafter
created which is not subordinate to the Securities) equally and ratably with
(or, at the option of the Company, prior to) all indebtedness secured thereby;
and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease
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and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
SECTION 11.02. SUCCESSOR CORPORATION SUBSTITUTED. So long as
any Securities shall be outstanding, upon any consolidation or any conveyance,
transfer or lease of the properties and assets of the Company substantially as
an entirety in accordance with Section 11.01, the successor corporation formed
by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for,
and may exercise every right and power of, the Company under this Indenture with
the same effect if such successor corporation had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities and any coupons.
ARTICLE TWELVE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 12.01. DISCHARGE OF INDENTURE. This Indenture shall
upon Company Order cease to be of further effect (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(a) either:
(i) all Securities theretofore authenticated and delivered
(other than (A) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 2.07 and
(B) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 12.04) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation:
(A) have become due and payable, or
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(B) will become due and payable at their stated
maturity within one year, or
(C) 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 (A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any), interest, if any, and
Additional Amounts (if any) to the date of such deposit (in
the case of Securities which have become due and payable) or
to the stated maturity or date of Redemption, as the case may
be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) 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 7.06 and,
if money shall have been deposited with the Trustee pursuant to subclause (ii)
of clause (a) of this Section or if money or obligations shall have been
deposited with or received by the Trustee pursuant to Section 13.02, the
obligations of the Trustee under Section 6.03 and Section 12.04 shall survive.
SECTION 12.02. DEPOSITED MONEYS TO BE HELD IN TRUST BY
TRUSTEE. Subject to Section 12.04, all moneys deposited with the Trustee
pursuant to this Indenture shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Company
acting as its own paying agent), to the Holders of the particular securities and
of any coupons appertaining to such Securities for the payment or Redemption of
which such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal
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(and premium, if any), interest, if any, and Additional Amounts,
if any.
SECTION 12.03. PAYING AGENT TO REPAY MONEYS HELD. In
connection with the satisfaction and discharge of this Indenture, all moneys
then held by any paying agent under the provisions of this Indenture shall, upon
demand of the Company, be repaid to it or, paid to the Trustee and thereupon
such paying agent shall be released from all further liability with respect to
such moneys.
SECTION 12.04. RETURN OF UNCLAIMED MONEYS. Any moneys
deposited with or paid to the Trustee or any paying agent for the payment of the
principal of (and premium, if any), interest, if any, and Additional Amounts, if
any, on any Security and not applied but remaining unclaimed for three years
after the date upon which such principal (and premium, if any), interest, if
any, and Additional Amounts, if any, shall have become due and payable, shall be
repaid to the Company by the Trustee or such paying agent on demand, and the
Holder of such Security or any coupon appertaining to such Security shall
thereafter look only to the Company for any payment which such Holder may be
entitled to collect and all liability of the Trustee or any paying agent with
respect to such moneys shall thereupon cease; provided, however, that the
Trustee or such paying agent, before being required to make any such repayment
with respect to moneys deposited with it for any payment in respect of
Unregistered Securities of any series, may at the expense of the Company cause
to be published once, in an Authorized Newspaper in the Borough of Manhattan,
The City of New York and once in an Authorized Newspaper in London, notice that
such moneys remain and that, after a date specified therein, which shall not be
less than thirty days from the date of such publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. Unless pursuant to Section 2.01
provision is made for the inapplicability of either or both of (a) defeasance of
the Securities of a series under Section 13.02 or (b) covenant defeasance of the
Securities of a series under Section 13.03, then the provisions of such Section
or Sections, as the case may be, together with the other provisions of this
Article Thirteen, shall be applicable to the Securities of such series, and the
Company may at its option by Board Resolution, at any time, with
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respect to the Securities of such series, elect to have either Section 13.02
(unless inapplicable) or Section 13.03 (unless inapplicable) be applied to the
Outstanding securities of such series upon compliance with the applicable
conditions set forth below in this Article Thirteen.
SECTION 13.02. DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of the option provided in Section 13.01 to defease the Outstanding
Securities of a particular series, the Company shall be discharged from its
obligations with respect to the Outstanding Securities of such series on the
date the applicable conditions set forth in Section 13.04 are satisfied
(hereinafter, "DEFEASANCE"). Defeasance shall mean 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 its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same); provided, however, that the
following rights, obligations, powers, trusts, duties and immunities shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of Outstanding Securities of such series to receive, solely from the
trust fund provided for in Section 13.04, payments in respect of the principal
of (and premium, if any), interest, if any, and Additional Amounts, if any, on
such Securities when such payments are due, (b) the Company's obligations with
respect to such Securities under Sections 2.05, 2.06, 2.07, 4.02 and 12.04, (c)
the rights, powers, trusts, duties and immunities of the Trustee hereunder and
(d) this Article Thirteen. Subject to compliance with this Article Thirteen, the
Company may exercise its option with respect to defeasance under this Section
13.02 notwithstanding the prior exercise of its option with respect to covenant
defeasance under Section 13.03 in regard to the Securities of such series.
SECTION 13.03. COVENANT DEFEASANCE. Upon the Company's
exercise of the option provided in Section 13.01 to obtain a covenant defeasance
with respect to the outstanding Securities of a particular series, the Company
shall be released from its obligations under this Indenture (except its
obligations under Sections 2.05, 2.06, 2.07, 4.01, 4.02, 6.02, 7.05 and 7.10)
with respect to the Outstanding Securities of such series on and after the date
the applicable conditions set forth in Section 13.04 are satisfied (hereinafter,
"COVENANT DEFEASANCE"). Covenant defeasance shall mean that, with respect to the
Outstanding Securities of such series, the Company may omit to comply with and
shall have no liability in respect of any term, condition or
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limitation set forth in this Indenture (except its obligations under Sections
2.05, 2.06, 2.07, 4.01, 4.02, 6.02, 7.05 and 7.10), whether directly or
indirectly by reason of any reference elsewhere herein in any such Section or
Article or by reason of any reference in any such Section or Article to any
other provision herein or in any other document, and such omission to comply
shall not constitute an Event of Default under Section 6.01(c) with respect to
Outstanding Securities of such series, and the remainder of this Indenture and
of the Securities of such series shall be unaffected thereby.
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE. The following shall be conditions to defeasance under Section 13.02
and covenant defeasance under Section 13.03 with respect to the Outstanding
Securities of a particular series:
(a) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.09 who shall agree 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 such Securities, (i) money in an amount, or
(ii) Governmental Obligations which through the schedule payment of principal
and interest in respect thereof in accordance with their terms will provide, not
later than the due date of any payment, money in an amount, or (iii) a
combination thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (A) the
principal of (and premium, if any, on), each installment of principal of (and
premium, if any), interest (if any) and all Additional Amounts due (if any) on
the Outstanding Securities of such series on the stated maturity of such
principal or installment of principal, interest or Additional Amount and (B) any
mandatory sinking fund payments or analogous payments applicable to the
Outstanding Securities of such series on the day on which such payments are due
and payable in accordance with terms of this Indenture and of such Securities.
For this purpose, "GOVERNMENT OBLIGATIONS" means securities that are (I) direct
obligations of the government which issued the currency in which the Securities
of such series are denominated 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 such
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government the payment of which is unconditionally guaranteed as a full faith
and credit obligation by such government, which, in either case, are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
Government Obligation or a specific payment of principal of or interest on any
such Government Obligation held by such custodian for the account of the holder
of such depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the
holder of such depository receipt from any amount received by the custodian in
respect of such Government Obligation or the specific payment of principal of or
interest on such Government Obligation evidenced by such depository receipt.
(b) No Event of Default or event which, with notice or lapse
of time or both, would become an Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such deposit
or, insofar as subsections 6.01(d) and (e) are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(c) Such defeasance or covenant defeasance shall 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.
(d) Such defeasance or covenant defeasance shall not cause any
securities of such series then listed on any national securities exchange
registered under the Securities Exchange Act of 1934, as amended, to be
delisted.
(e) In the case of an election with respect to Section 13.02,
the Company shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from the Internal Revenue Service a private
letter ruling pertaining to this transaction or a comparable form of
transaction, or (ii) since the date of this Indenture there has been a change in
the applicable Federal income tax law (including, but not limited to, a change
in the Internal Revenue Code, proposed, temporary or final Treasury regulations,
Revenue Rulings, Revenue Procedures, Internal Revenue Service Notices,
Announcements, and other public announcements), in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain or loss
for Federal income tax purposes as a result of such
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defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
(f) In the case of an election with respect to Section 13.03,
the Company shall have delivered to the Trustee an opinion of Counsel to the
effect that the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred.
(g) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 3.01.
(h) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 13.02 or the covenant defeasance under Section 13.03 (as the case may
be) have been complied with.
SECTION 13.05. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of
Section 12.04, all money and Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee -- collectively
for purposes of this Section 13.05, the "Trustee") pursuant to Section 13.04 in
respect of the Outstanding Securities of a particular series shall be held in
trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
paying agent (including the Company acting as its own paying agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal (and premium, if any), interest and
Additional Amounts, if any, but such money need not be segregated from other
funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 13.04 or the principal and interest
received in respect thereof, other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series.
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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 Government obligations held by it as
provided in Section 13.04 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited for the purpose for which such money or Government
Obligations were deposited.
ARTICLE FOURTEEN
SUBORDINATION
SECTION 14.01. AGREEMENT TO SUBORDINATE. The Company, for
itself and its successors, and each Holder, by his acceptance of Securities,
agree that the payment of the principal of, any premium or interest on, or any
other amounts due on the Securities is subordinated in right of payment, to the
extent and in the manner stated in this Article Fourteen, to the prior payment
in full of all Senior Indebtedness. Each Holder by his acceptance of the
Securities authorizes and directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate, as between the holders of
Senior Indebtedness and such Holder, the subordination provided in this Article
and appoints the Trustee his attorney-in-fact for such purpose. If the Trustee
does not file a proper claim or proof of debt in the form required in any
voluntary or involuntary dissolution, winding up, liquidation, reorganization,
arrangement or similar proceedings relating to the Company prior to 30 days
before the expiration of time to file such claim or claims, then any holder or
holders of Senior Indebtedness or their representative or representatives are
hereby authorized to and have the right to file an appropriate claim for and on
behalf of the Holders.
The Securities shall be senior in right of payment and in
rights upon liquidation to all Junior Subordinated Indebtedness.
SECTION 14.02. NO PAYMENT ON SECURITIES IF SENIOR INDEBTEDNESS
IN DEFAULT. Anything in this Indenture to the contrary notwithstanding, no
payment on account of principal of (and premium, if any) or Redemption of,
interest on or other amounts due on the Securities, and no Redemption, purchase,
or other acquisition of the Securities, shall be made by or on behalf of the
Company (i) unless full payment of amounts then due for principal, sinking funds
and interest and of all other
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amounts then due on all Senior Indebtedness has been made or duly provided for
pursuant to the terms of the instrument governing such Senior Indebtedness, (ii)
if, at the time of such payment, Redemption, purchase or other acquisition, or
immediately after giving effect thereto, there shall exist under any Senior
Indebtedness, or any agreement pursuant to which any Senior Indebtedness is
issued, any default, which default shall not have been cured or waived and which
default shall have resulted in the full amount of such Senior Indebtedness being
declared due and payable or (iii) if, at the time of such payment, Redemption,
purchase or other acquisition, the Trustee shall have received written notice
from the holder or holders of any Senior Indebtedness or their representative or
representatives (a "PAYMENT BLOCKAGE NOTICE") that there exists under such
Senior Indebtedness, or any agreement pursuant to which such Senior Indebtedness
is issued, any default, which default shall not have been cured or waived,
permitting the holders thereof to declare the full amount of such Senior
Indebtedness due and payable, but only for the period (the "PAYMENT BLOCKAGE
PERIOD") commencing on the date of receipt of the Payment Blockage Notice and
ending (unless earlier terminated by notice given to the Trustee by the holders
of such Senior Indebtedness) on the earlier of (A) the date on which such event
of default shall have been cured or waived or (B) 180 days from the receipt of
the Payment Blockage Notice. Upon termination of a Payment Blockage Period,
payments on account of principal of, any premium or interest on, or any other
amounts payable with respect to the Securities (other than amounts due and
payable by reason of the acceleration of the maturity of the Securities) and
redemptions, purchases or other acquisitions may be made by or on behalf of the
Company. Notwithstanding anything herein to the contrary, (A) only one Payment
Blockage Notice may be given during any period of 360 consecutive days with
respect to the same event of default and any other events of default on the same
issue of Senior Indebtedness existing and known to the Person giving such notice
at the time of such notice and (B) no new Payment Blockage Period may be
commenced by the holder or holders of the same issue of Senior Indebtedness or
their representative or representatives during any period of 360 consecutive
days unless all events of default which were the object of the immediately
preceding Payment Blockage Notice, and any other event of default on the same
issue of Senior Indebtedness existing and known to the Person giving such notice
at the time of such notice, have been cured or waived. The provisions of this
Section 14.02 shall not prevent a sinking fund payment (if any) in respect of
Securities made with Securities properly acquired prior to the happening of such
default.
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In the event that, notwithstanding the provisions of this
Section 14.02, payments are made by or on behalf of the Company in contravention
of the provisions of this Section 14.02, such payments shall be held by the
Trustee, any Paying Agent or the Holders, as applicable, in trust for the
benefit of, and shall be paid over to and delivered to, the holders of Senior
Indebtedness or their representative or the trustee under the indenture or other
agreement (if any), pursuant to which any instruments evidencing any Senior
Indebtedness may have been issued, as their respective interests may appear, for
application to the payment of all Senior Indebtedness remaining unpaid to the
extent necessary to pay all Senior Indebtedness in full in accordance with the
terms of such Senior Indebtedness, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Indebtedness.
The Company shall give prompt written notice to the Trustee
and any Paying Agent of any default under any Senior Indebtedness or under any
agreement pursuant to which any Senior Indebtedness may have been issued.
SECTION 14.03. DISTRIBUTION ON ACCELERATION OF SECURITIES;
DISSOLUTION AND REORGANIZATION; SUBROGATION OF SECURITIES. (a) Upon (i) any
acceleration of the principal amount due on the Securities because of an Event
of Default or (ii) any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors or any other dissolution, winding up, liquidation or
reorganization of the Company):
(1) the holders of all Senior Indebtedness shall first be
entitled to receive payment in full of the principal thereof, the
interest thereon and any other amounts due thereon before the Holders
are entitled to receive payment on account of the principal of, any
premium or interest on, or any other amounts due on the Securities;
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities other
than securities of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for by a
plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article Fourteen
with respect to the Securities, to the payment in full without
diminution or modification by such plan of all Senior Indebtedness), to
which the Holders or the Trustee
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would be entitled except for the provisions of this Article, shall be
paid by the liquidating trustee or agent or other Person making such a
payment or distribution, directly to the holders of Senior Indebtedness
(or their representatives) or trustee(s) acting on their behalf),
ratably according to the aggregate amounts remaining unpaid on account
of the principal of, any premium or interest on, and other amounts due
on the Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities other than
securities of the Company as reorganized or readjusted or securities of
the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in this Article with respect to the
Securities, to the payment in full without diminution or modification
by such plan of Senior Indebtedness), shall be received by the Trustee
or the Holders before all Senior Indebtedness is paid in full, such
payment or distribution shall be held in trust for the benefit of, and
be paid over to, the holders of the Senior Indebtedness remaining
unpaid (or their representatives) or trustee(s) acting on their
behalf), ratably as aforesaid, for application to the payment of such
Senior Indebtedness until all such Senior Indebtedness shall have been
paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders shall be subrogated to the rights of the holders of Senior Indebtedness
to receive payments or distributions of cash, property or securities of the
Company applicable to the Senior Indebtedness until the principal of, any
premium or interest on, and any other amounts payable with respect to the
Securities shall be paid in full and, for purposes of such subrogation, no such
payments or distributions to the holders of Senior Indebtedness of cash,
property or securities which otherwise would have been payable or distributable
to Holders shall, as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders, be deemed to be a payment by the
Company to or on account of the Senior Indebtedness, it being understood that
the provisions of this Article Fourteen are and are intended solely for the
purpose of
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defining the relative rights of the Holders, on the one hand, and the holders of
Senior Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company and its creditors other than the holders of Senior Indebtedness, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders the principal of, any premium or interest on, and any Additional Amounts
with respect to the Securities as and when the same shall become due and payable
in accordance with the terms of the Securities or is intended to or shall affect
the relative rights of the Holders and creditors of the Company other than
holders of Senior Indebtedness or, as between the Company and the Trustee, the
obligations of the Company to the Trustee, nor shall anything herein or therein
prevent the Trustee or the Holders from exercising all remedies otherwise
permitted by law upon default under this Indenture, subject to the rights, if
any, under this Article of the holders of Senior Indebtedness in respect of
cash, property and securities of the company received upon the exercise of any
such remedy. Upon distribution of assets of the Company referred to in this
Article, the Trustee, subject to the provisions of Section 7.01 hereof, and the
Holders shall be entitled to rely upon a certificate of the liquidating trustee
or agent or other Person making any distribution to the Trustee or to the
Holders for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this
Article. The Trustee, however, shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness. Nothing contained in this Article Fourteen
or elsewhere in this Indenture, or in any of the Securities, shall prevent the
application by the Trustee of any moneys which were deposited with it hereunder,
prior to its receipt of written notice of facts which would prohibit such
application, for the purpose of the payment of or on account of the principal
of, any premium or interest on, or any Additional Amounts with respect to the
Securities unless, prior to the date on which such application is made by the
Trustee, the Trustee shall be charged with notice under Section 14.03(c) hereof
of the facts which would prohibit the making of such application.
(b) The provisions of this Article shall not be applicable to
any cash, properties or securities received by the Trustee or by any Holder when
received as a holder of Senior Indebtedness and nothing in this Indenture shall
deprive the Trustee or such Holder of any of its rights as such holder.
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(c) The Company shall give prompt written notice to the
Trustee of any fact known to the Company which would prohibit the making of any
payment of money to or by the Trustee in respect of the Securities pursuant to
the provisions of this Article. The Trustee, subject to the provisions of
Section 7.01 hereof, shall be entitled to assume that no such fact exists unless
the Company or any holder of Senior Indebtedness or any trustee therefor has
given such notice to the Trustee. Notwithstanding the provisions of this Article
or any other provisions of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any fact which would prohibit the making of any
payment of monies to or by the Trustee in respect of the Securities pursuant to
the provisions in this Article, unless, and until three Business Days after, the
Trustee shall have received written notice thereof at the address designated
pursuant to Section 17.03 hereof from the Company or any holder or holders of
Senior Indebtedness or from any trustee therefor; and, prior to the receipt of
any such written notice, the Trustee, subject to the provisions of Section 7.01
hereof, shall be entitled in all respects conclusively to assume that no such
fact exists; provided that if on a date not less than two Business Days
immediately preceding the date upon which by the terms hereof any such monies
may become payable for any purpose including, without limitation, the principal
of, any premium or interest on, and any Additional Amounts with respect to any
Security, and any amounts immediately due and payable upon the execution of any
instrument acknowledging satisfaction and discharge of this Indenture, as
provided in Article Four hereof), the Trustee shall not have received with
respect to such monies the notice provided for in this Section 14.03(c), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such monies and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such prior date.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such
notice has been given by a holder of Senior Indebtedness (or a trustee on behalf
of any such holder or holders). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and
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any other facts pertinent to the rights of such Person under this Article, and,
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment; nor shall the Trustee be charged with knowledge of the curing or
waiving of any default of the character specified in Section 14.02 hereof or
that any event or any condition preventing any payment in respect of the
Securities shall have ceased to exist, unless and until the Trustee shall have
received an Officer's Certificate to such effect.
(d) The provisions of this Section 14.03 applicable to the
Trustee shall also apply to any Paying Agent for the Company.
SECTION 14.04. RELIANCE BY SENIOR INDEBTEDNESS ON
SUBORDINATION PROVISIONS. Each Holder of any Security by his acceptance thereof
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration for each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness, and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness. Notice of any default in the payment of any Senior
Indebtedness, except as expressly stated in this Article, and notice of
acceptance of the provisions hereof are hereby expressly waived. Except as
otherwise expressly provided herein, no waiver, forbearance or release by any
holder of Senior Indebtedness under such Senior Indebtedness or under this
Article shall constitute a release of any of the obligations or liabilities of
the Trustee or Holders of the Securities provided in this Article. Except as
otherwise expressly provided herein, no right of any present or future holder of
Senior Indebtedness to enforce the subordination provisions hereof shall at any
time or in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or any such holder or by any noncompliance by the Company
with the terms, provisions or covenants of this Indenture, regardless of any
knowledge thereof which such holder may have otherwise been charged with.
SECTION 14.05. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS. The
Trustee in its individual capacity shall be entitled to all the rights set forth
in this Article in respect of any Senior Indebtedness at any time held by it, to
the same extent as any holder of Senior Indebtedness, and nothing in this
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Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not owe
any fiduciary duty to the holders of Senior Indebtedness but shall have only
such obligations to such holders as are expressly set forth in this Article.
Each Holder of a Security by his acceptance thereof authorizes
and directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes,
including, in the event of any dissolution, winding up or liquidation or
reorganization under any applicable bankruptcy law of the Company (whether in
bankruptcy, insolvency or receivership proceedings or otherwise), the timely
filing of a claim for the unpaid balance of such Holder's Securities in the form
required in such proceedings and the causing of such claim to be approved. If
the Trustee does not file a claim or proof of debt in the form required in such
proceedings prior to 10 days before the expiration of the time to file such
claims or proofs, then the holders of Senior Indebtedness, jointly, or their
representative shall have the right to demand, sue for, collect, receive and
receipt for the payments and distributions in respect of the Securities which
are required to be paid or delivered to the holders of Senior Indebtedness as
provided in this Article and to file and prove all claims therefor and to take
all such other action in the name of the Holders or otherwise, as such holder of
Senior Indebtedness or representative thereof may determine to be necessary or
appropriate for the enforcement of the provisions of this Article.
SECTION 14.06. OTHER PROVISIONS SUBJECT HERETO. Except as
expressly stated in this Article, notwithstanding anything contained in this
Indenture to the contrary, all the provisions of this Indenture and the
Securities are subject to the provisions of this Article. However, nothing in
this Article shall apply to or adversely affect the claims of, or payment to,
the Trustee pursuant to Section 7.06.
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ARTICLE FIFTEEN
CONVERSION
SECTION 15.01. CONVERSION PRIVILEGE. If so provided in a Board
Resolution with respect to the Securities of any series, the Holder of a
Security of such series shall have the right, at such Holder's option, to
convert, in accordance with the terms of such series of Securities and this
Article Fifteen, all or any part (in a denomination of, unless otherwise
specified in a Board Resolution or supplemental indenture with respect to
Securities of such series, $1,000 in principal amount or any integral multiple
thereof) of such Security into shares of Common Stock or, as to any Securities
called for redemption, at any time prior to the time and date fixed for such
redemption (unless the Company shall default in the payment of the Redemption
Price, in which case such right shall not terminate at such time and date). The
provisions of this Article Fifteen shall not be applicable to the Securities of
a series unless otherwise specified in a Board Resolution with respect to the
Securities of such series.
SECTION 15.02. CONVERSION PROCEDURE; CONVERSION PRICE;
FRACTIONAL SHARES. (a) Each Security to which this Article is applicable shall
be convertible at the office of the Conversion Agent, and at such other place or
places, if any, specified in a Board Resolution with respect to the Securities
of such series, into fully paid and nonassessable shares (calculated to the
nearest 1/100th of a share) of Common Stock. The Securities will be converted
into shares of Common Stock at the Conversion Price therefor. No payment or
adjustment shall be made in respect of dividends on the Common Stock or accrued
interest on a converted Security except as described in Section 15.09. The
Company may, but shall not be required, in connection with any conversion of
Securities, to issue a fraction of a share of Common Stock and, if the Company
shall determine not to issue any such fraction, the Company shall, subject to
Section 15.03(4), make a cash payment (calculated to the nearest cent) equal to
such fraction multiplied by the Closing Price of the Common Stock on the last
Trading Day prior to the date of conversion.
(b) Before any Holder of a Security shall be entitled to
convert the same into Common Stock, such Holder shall surrender such Security
duly endorsed to the Company or in blank, at the office of the Conversion Agent
or at such other place or places, if any, specified in a Board Resolution with
respect to the Securities of such series, and shall give written notice to the
Company at said office or place that he elects to convert the same and shall
state in writing therein the principal amount of Securities to be converted and
the name or names (with addresses)
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in which he wishes the certificate or certificates for Common Stock to be
issued; provided, however, that no Security or portion thereof shall be accepted
for conversion unless the principal amount of such Security or such portion,
when added to the principal amount of all other Securities or portions thereof
then being surrendered by the Holder thereof for conversion, exceeds the then
effective Conversion Price with respect thereto. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number of full
shares of Common Stock which shall be deliverable upon conversion shall be
computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof to the extent permitted thereby) so surrendered.
Subject to the next succeeding sentence, the Company will, as soon as
practicable thereafter, issue and deliver at said office or place to such Holder
of a Security, or to his nominee or nominees, certificates for the number of
full shares of Common Stock to which he shall be entitled as aforesaid,
together, subject to the last sentence of paragraph (a) above, with cash in lieu
of any fraction of a share to which he would otherwise be entitled. The Company
shall not be required to deliver certificates for shares of Common Stock while
the stock transfer books for such stock or the Security Register are duly closed
for any purpose, but certificates for shares of Common Stock shall be issued and
delivered as soon as practicable after the opening of such books or Security
Register. A Security shall be deemed to have been converted as of the close of
business on the date of the surrender of such Security for conversion as
provided above, and the Person or Persons entitled to receive the Common Stock
issuable upon such conversion shall be treated for all purposes as the record
Holder or Holders of such Common Stock as of the close of business on such date.
In case any Security shall be surrendered for partial conversion, the Company
shall execute and the Trustee shall authenticate and deliver to or upon the
written order of the Holder of the Securities so surrendered, without charge to
such Holder (subject to the provisions of Section 15.08), a new Security or
securities in authorized denominations in an aggregate principal amount equal to
the unconverted portion of the surrendered Security.
SECTION 15.03. ADJUSTMENT OF CONVERSION PRICE FOR COMMON
STOCK. The Conversion Price with respect to any Security which is convertible
into Common Stock shall be adjusted from time to time as follows:
(1) In case the Company shall, at any time or from time to
time while any of such securities are outstanding, (i) pay a dividend
in shares of its Common Stock to holders of Common Stock, (ii) combine
its outstanding shares of
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Common Stock into a smaller number of shares of Common Stock, (iii)
subdivide its outstanding shares of Common Stock into a greater number
of shares of Common Stock or (iv) make a distribution in shares of
Common Stock to holders of Common Stock, then the Conversion Price in
effect immediately before such action shall be adjusted so that the
Holders of such Securities, upon conversion thereof into Common Stock
immediately following such event, shall be entitled to receive the kind
and amount of shares of capital stock of the Company which they would
have owned or been entitled to receive upon or by reason of such event
if such Securities had been converted immediately before the record
date (or, if no record date, the effective date) for such event. An
adjustment made pursuant to this Section 15.03(l) shall become
effective retroactively immediately after the record date in the case
of a dividend or distribution and shall become effective retroactively
immediately after the effective date in the case of a subdivision or
combination. For the purposes of this Section 15.03(l), each Holder of
Securities shall be deemed to have failed to exercise any right to
elect the kind or amount of securities receivable upon the payment of
any such dividend, subdivision, combination or distribution (provided
that if the kind or amount of securities receivable upon such dividend,
subdivision, combination or distribution is not the same for each
nonelecting share, then the kind and amount of securities or other
property receivable upon such dividend, subdivision, combination or
distribution for each nonelecting share shall be deemed to be the kind
and amount so receivable per share by a plurality of the nonelecting
shares).
(2) In case the Company shall, at any time or from time to
time while any of such Securities are outstanding, issue rights or
warrants to all holders of shares of its Common Stock entitling them
(for a period expiring within 45 days after the record date for such
issuance) to subscribe for or purchase shares of Common Stock (or
securities convertible into shares of Common Stock) at a price per
share less than the Current Market Price of the Common Stock at such
record date (treating the price per share of the securities convertible
into Common Stock as equal to (x) the sum of (i) the price for a unit
of the security convertible into Common Stock and (ii) any additional
consideration initially payable upon the conversion of such security
into Common Stock divided by (y) the number of shares of Common Stock
initially underlying such convertible security), the Conversion Price
with respect to such Securities shall be adjusted so that it shall
equal the price determined by
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dividing the Conversion Price in effect immediately prior to the date
of issuance of such rights or warrants by a fraction, the numerator of
which shall be the number of shares of Common Stock outstanding on the
date of issuance of such rights or warrants plus the number of
additional shares of Common Stock offered for subscription or purchase
(or into which the convertible securities so offered are initially
convertible), and the denominator of which shall be the number of
shares of Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of shares or securities which the
aggregate offering price of the total number of shares or securities so
offered for subscription or purchase (or the aggregate purchase price
of the convertible securities so offered plus the aggregate amount of
any additional consideration initially payable upon conversion of such
securities into Common Stock) would purchase at such Current Market
Price of the Common Stock. Such adjustment shall become effective
retroactively immediately after the record date for the determination
of stockholders entitled to receive such rights or warrants.
(3) In case the Company shall, at any time or from time to
time while any of such Securities are outstanding, distribute to all
holders of shares of its Common Stock(including any such distribution
made in connection with a consolidation or merger in which the Company
is the continuing corporation and the Common Stock is not changed or
exchanged) cash, evidences of its indebtedness, securities or assets
(excluding (i) regular periodic cash dividends in amounts, if any,
determined from time to time by the Board of Directors, (ii) dividends
payable in shares of Common Stock for which adjustment is made under
Section 15.03(l) or (iii) rights or warrants to subscribe for or
purchase securities of the Company (excluding those referred to in
Section 15.03(2))), then in each such case the Conversion Price with
respect to such Securities shall be adjusted so that it shall equal the
price determined by dividing the Conversion Price in effect immediately
prior to the date of such distribution by a fraction, the numerator of
which shall be the Current Market Price of the Common Stock on the
record date referred to below, and the denominator of which shall be
such Current Market Price of the Common Stock less the then fair market
value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive) of the portion of the cash or assets
or evidences of indebtedness or securities so distributed or of such
subscription rights or warrants applicable to one share of Common Stock
(provided that such denominator shall never be less than 1.0);
provided,
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however, that no adjustment shall be made with respect to any
distribution of rights to purchase securities of the Company if a
Holder of Securities would otherwise be entitled to receive such rights
upon conversion at any time of such Securities into Common Stock unless
such rights are subsequently redeemed by the Company, in which case
such redemption shall be treated for purposes of this section as a
dividend on the Common Stock. Such adjustment shall become effective
retroactively immediately after the record date for the determination
of stockholders entitled to receive such distribution; and in the event
that such distribution is not so made, the Conversion Price shall again
be adjusted to the Conversion Price which would then be in effect if
such record date had not been fixed.
(4) The Company shall be entitled to make such additional
adjustments in the Conversion Price, in addition to those required by
subsections 15.03(1), 15.03(2) and 15.03(3), as shall be necessary in
order that any dividend or distribution of Common Stock, any
subdivision, reclassification or combination of shares of Common Stock
or any issuance of rights or warrants referred to above shall not be
taxable to the holders of Common Stock for United States Federal income
tax purposes.
(5) In any case in which this Section 15.03 shall require that
any adjustment be made effective as of or retroactively immediately
following a record date, the Company may elect to defer (but only for
five (5) Trading Days following the filing of the statement referred to
in Section 15.05) issuing to the Holder of any Securities converted
after such record date the shares of Common Stock and other capital
stock of the Company issuable upon such conversion over and above the
shares of Common Stock and other capital stock of the company issuable
upon such conversion on the basis of the Conversion Price prior to
adjustment; provided, however, that the Company shall deliver to such
Holder a due bill or other appropriate instrument evidencing such
Holder's right to receive such additional shares upon the occurrence of
the event requiring such adjustment.
(6) All calculations under this Section 15.03 shall be made to
the nearest cent or one-hundredth of a share or security, with one-half
cent and 0.005 of a share, respectively, being rounded upward.
Notwithstanding any other provision of this Section 15.03, the Company
shall not be required to make any adjustment of the Conversion Price
unless such adjustment would require an increase or decrease
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of at least 1% of such price. Any lesser adjustment shall be carried
forward and shall be made at the time of and together with the next
subsequent adjustment which, together with any adjustment or
adjustments so carried forward, shall amount to an increase or decrease
of at least 1% in such price. Any adjustments under this Section 15.03
shall be made successively whenever an event requiring such an
adjustment occurs.
(7) In the event that at any time, as a result of an
adjustment made pursuant to this Section 15.03, the Holder of any
Security thereafter surrendered for conversion shall become entitled to
receive any shares of stock of the Company other than shares of Common
Stock into which the Securities originally were convertible, the
Conversion Price of such other shares so receivable upon conversion of
any such Security shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as to practicable the
provisions with respect to Common Stock contained in subparagraphs (1)
through (6) of this Section 15.03, and the provision of Sections 15.01,
15.02 and 15.04 through 15.09 with respect to the Common Stock shall
apply on like or similar terms to any such other shares and the
determination of the Board of Directors as to any such adjustment shall
be conclusive.
(8) No adjustment shall be made pursuant to this Section (i)
if the effect thereof would be to reduce the Conversion Price below the
par value (if any) of the Common Stock or (ii) subject to 15.03(5)
hereof, with respect to any Security that is converted prior to the
time such adjustment otherwise would be made.
SECTION 15.04. CONSOLIDATION OR MERGER OF THE COMPANY. In case
of either (a) any consolidation or merger to which the Company is a party, other
than a merger or consolidation in which the company is the surviving or
continuing corporation and which does not result in a reclassification of, or
change (other than a change in par value or from par value to no par value or
from no par value to par value, as a result of a subdivision or combination) in,
outstanding shares of Common Stock or (b) any sale or conveyance of all or
substantially all of the property and assets of the Company to another Person,
then each Security then outstanding shall be convertible from and after such
merger, consolidation, sale or conveyance of property and assets into the kind
and amount of shares of stock or other securities and property (including cash)
receivable upon such consolidation, merger, sale or conveyance by a holder of
the number of shares of
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Common Stock into which such Securities would have been converted immediately
prior to such consolidation, merger, sale or conveyance, subject to adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Fifteen (and assuming such holder of Common Stock
failed to exercise his rights of election, if any, as to the kind or amount of
securities, cash or other property (including cash) receivable upon such
consolidation, merger, sale or conveyance (provided that, if the kind or amount
of securities, cash or other property (including cash) receivable upon such
consolidation, merger, sale or conveyance is not the same for each nonelecting
share, then the kind and amount of securities, cash or other property (including
cash) receivable upon such consolidation, merger, sale or conveyance for each
nonelecting share shall be deemed to be the kind and amount so receivable per
share by a plurality of the nonelecting shares or securities)). The Company
shall not enter into any of the transactions referred to in clause (a) or (b) of
the preceding sentence unless effective provision shall be made so as to give
effect to the provisions set forth in this Section 15.04. The provisions of this
Section 15.04 shall apply similarly to successive consolidations, mergers, sales
or conveyances.
SECTION 15.05. NOTICE OF ADJUSTMENT. Whenever an adjustment in
the Conversion Price with respect to a series of Securities is required:
(1) the Company shall forthwith place on file with the Trustee
and any Conversion Agent for such Securities a certificate of the
Treasurer of the Company, stating the adjusted Conversion Price
determined as provided herein and setting forth in reasonable detail
such facts as shall be necessary to show the reason for and the manner
of computing such adjustment, such certificate to be conclusive
evidence that the adjustment is correct; and
(2) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be mailed, first class postage prepaid, by the Company to the
Holders of record of such Outstanding Securities.
SECTION 15.06. NOTICE IN CERTAIN EVENTS.
In case:
(1) of a consolidation or merger to which the Company
is a party and for which approval of any stockholders of the
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company is required, or of the sale or conveyance to another Person or
entity or group of Persons or entities acting in concert as a
partnership, limited partnership, syndicate or other group (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of all
or substantially all of the property and assets of the Company; or
(2) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion
Price pursuant to this Article Fifteen;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent for the applicable Securities, and shall cause to be mailed,
first class postage prepaid, to the Holders of record of applicable securities,
at least fifteen (15) days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose of
any distribution or grant of rights or warrants triggering an adjustment to the
Conversion Price pursuant to this Article Fifteen, or, if a record is not to be
taken, the date as of which the holders of record of Common Stock entitled to
such distribution, rights or warrants are to be determined, or (y) the date on
which any reclassification, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding up triggering an adjustment to the
Conversion Price pursuant to this Article Fifteen is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reclassification, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding up.
Failure to give such notice or any defect therein shall not
affect the legality or validity of the proceedings described in clause (1), (2)
or (3) of this Section.
SECTION 15.07. COMPANY TO RESERVE STOCK; REGISTRATION;
LISTING. (a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued shares of Common
Stock, for the purpose of effecting the conversion of the Securities, such
number of its duly authorized shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all applicable outstanding securities
into such Common Stock at any time (assuming that, at the time of the
computation of such number of shares or securities, all such Securities would be
hold by a single holder); provided, however, that nothing contained herein shall
preclude the Company from
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satisfying its obligations in respect of the conversion of the Securities by
delivery of purchased shares of Common Stock which are held in the treasury of
the Company. The Company shall from time to time, in accordance with the laws of
the State of Delaware, use its best efforts to cause the authorized amount of
the Common Stock to be increased if the aggregate of the authorized amount of
the Common Stock remaining unissued and the issued shares of such Common Stock
in its treasury (other than any such shares reserved for issuance in any other
connection) shall not be sufficient to permit the conversion of all securities.
(b) If any shares of Common Stock which would be issuable upon
conversion of Securities hereunder require registration with or approval of any
governmental authority before such shares or securities may be issued upon such
conversion, the Company will in good faith and as expeditiously as possible
endeavor to cause such shares or securities to be duly registered or approved,
as the case may be. The Company will endeavor to list the shares of Common Stock
required to be delivered upon conversion of the Securities prior to such
delivery upon the principal national securities exchange upon which the
outstanding Common Stock is listed at the time of such delivery.
SECTION 15.08. TAXES ON CONVERSION. The Company shall pay any
and all documentary, stamp or similar issue or transfer taxes that may be
payable in respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. The Company shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issue or delivery of shares of Common Stock or the portion, if
any, of the Securities which are not so converted in a name other than that in
which the Securities so converted were registered, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Company the amount of such tax or has established to the satisfaction of the
Company that such tax has been paid.
SECTION 15.09. CONVERSION AFTER RECORD DATE. If any Securities
are surrendered for conversion subsequent to the record date preceding an
Interest Payment Date but on or prior to such Interest Payment Date (except
Securities called for Redemption on a Redemption Date between such record date
and Interest Payment Date), the Holder of such Securities at the close of
business on such record date shall be entitled to receive the interest payable
on such Securities on such Interest Payment Date notwithstanding the conversion
thereof. Securities
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surrendered for conversion during the period from the close of business on any
record date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date shall (except in the case of Securities which have
been called for Redemption on a Redemption Date within such period) be
accompanied by payment in New York Clearing House funds or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the securities being surrendered for conversion. Except
as provided in this Section 15.09, no adjustments in respect of payments of
interest on securities surrendered for conversion or any dividends or
distributions or interest on the Common Stock issued upon conversion shall be
made upon the conversion of any Securities.
SECTION 15.10. CORPORATE ACTION REGARDING PAR VALUE OF COMMON
STOCK. Before taking any action which would cause an adjustment reducing the
applicable Conversion Price below the then par value (if any) of the shares of
Common Stock deliverable upon conversion of the Securities, the Company will
take any corporate action which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted Conversion Price.
SECTION 15.11. COMPANY DETERMINATION FINAL. Any determination
that the Company or the Board of Directors must make pursuant to this Article is
conclusive.
SECTION 15.12. TRUSTEE'S DISCLAIMER. The Trustee has no duty
to determine when an adjustment under this Article should be made, how it should
be made or what it should be. The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities. The Trustee shall not be responsible for the Company's failure to
comply with this Article. Each Conversion Agent other than the Company shall
have the same protection under this Section as the Trustee.
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ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 16.01. INDENTURE AND SECURITIES SOLELY CORPORATE
OBLIGATIONS. No recourse under or upon any obligations covenant or agreement
contained in this Indenture, or in any covenant or agreement contained in this
Indenture, or in any Security, or because of any indebtedness evidenced thereby,
shall be had against any past, present or future incorporator, stockholder,
officer or director, as such, of the Company or of any successor Corporation,
either directly or through the Company or any successor corporation, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities and coupons.
ARTICLE SEVENTEEN
MISCELLANEOUS PROVISIONS
SECTION 17.01. BENEFITS OF INDENTURE RESTRICTED TO PARTIES AND
SECURITYHOLDERS. Nothing in this Indenture or in the Securities or coupons,
expressed or implied, shall give or be construed to give to any person, firm or
corporation, other than the parties hereto and their successors and the Holders
of the Securities or coupons, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities or coupons.
SECTION 17.02. PROVISIONS BINDING ON COMPANY'S SUCCESSORS. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or on behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 17.03. ADDRESSES FOR NOTICES, ETC. Any notice or
demand which by any provision of this Indenture is required or permitted to be
given or served by the Trustee or by the Holders of Securities to or on the
Company may be given or served by being deposited postage prepaid first class
mail in a post office letter box addressed (until another address is filed by
the Company with the Trustee), as follows: Aon Corporation, 123 North
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Wacker Drive, Chicago, Illinois 60606, Attention: Treasurer. Any notice,
direction, request or demand by the Company any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at its principal office at 111 East Wacker
Drive, Suite 3000, Chicago, Illinois 60601, Attention: Corporate Trust Services,
or at any other address previously furnished in writing to the Company by the
Trustee.
SECTION 17.04. EVIDENCE OF COMPLIANCE WITH CONDITIONS
PRECEDENT. Upon any application or demand by the Company to the Trustee to take
any action under any of the provisions of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 17.05. LEGAL HOLIDAYS. In any case where the date of
maturity of any interest, premium or Additional Amounts on or principal of the
Securities or the date fixed for Redemption of any Securities shall not be a
Business Day in a city where payment thereof is to be made, then payment of any
interest, premium or Additional Amounts on, or principal of, such Securities
need not be made on such date in such city but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for
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Redemption, and no interest shall accrue for the period after such date.
SECTION 17.06. TRUST INDENTURE ACT TO CONTROL. If and to the
extent that any provision of this Indenture limits, qualifies or conflicts with
another provision included in this Indenture which is required to be included in
this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture
Act of 1939, such required provision shall control.
SECTION 17.07. 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 17.08. ILLINOIS CONTRACT. This Indenture and each
Security shall be deemed to be a contract made under the laws of the State of
Illinois, and for all purposes shall be governed by and construed in accordance
with the laws of said State.
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IN WITNESS WHEREOF, Aon Corporation, the party of the first
part, has caused this Indenture to be signed and acknowledged by its Chairman of
the Board or its President or one of its Executive Vice Presidents or one of its
Vice Presidents or its Treasurer, and its Corporate seal to be affixed hereunto,
and the same to be attested by its Corporate Secretary; and U.S. Bank Trust
National Association, the party of the second part, has caused this Indenture to
be signed and acknowledged by one of its Vice Presidents and its corporate seal
to be affixed hereunto, and the same to be attested by its Secretary or an
Assistant Secretary or an authorized officer, all as of the day and year first
above written.
Aon Corporation
[Corporate Seal]
By: ________________________
Harvey N. Medvin
Executive Vice President
and Chief Financial Officer
Attest:
__________________________
By: __________________________
[Name]
[Title]
Attest:
__________________________
Assistant Secretary
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STATE OF ILLINOIS )
)SS:
COUNTY OF COOK )
On the ________________________________________ day of
_________________________,________ before me personally came
________________________, to me known, who, being by me duly sworn, did depose
and say that he resides at _______________, that he is the
________________________ of ________________________, one of the [corporations]
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such Corporate
seal; that it was so affixed by authority of the Board of Directors of said
Corporation, and that he signed his name thereto by like authority.
_____________________________________
Notary Public
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Exhibit 5
May 18, 1999
Aon Corporation
123 North Wacker Drive
Chicago, Illinois 60660
Re: $500,000,000 of Debt Securities, Preferred Stock and
----------------------------------------------------
Common Stock
------------
Ladies and Gentlemen:
I am Senior Counsel and Assistant Secretary of Aon Corporation
(the "Company"). I refer to the Registration Statement on Form S-3 (the
"Registration Statement") being filed by the Company, with the Securities and
Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
(the "Securities Act"), relating to the shelf registration of $500,000,000 of
the Company's debt securities (the "Debt Securities"), preferred stock, par
value $1.00 per share ("Preferred Stock") and common stock, par value $1.00
per share ("Common Stock"). The Debt Securities are to be issued under an
Indenture dated as of September 15, 1992 between the Company and The Bank of
New York, as successor trustee (the "Senior Debt Indenture") and an Indenture
to be dated as of a date before the first issuance of subordinated debt
securities between us and U.S. Bank Trust National Association, as trustee
(the "Subordinated Debt Indenture" and together with the Senior Debt
Indenture, the "Indentures"). The Preferred Stock will be issued pursuant to
a Certificate of Designation relating to a particular series of Preferred
Stock.
I am familiar with the proceedings to date with respect to the
proposed issuance and sale of the Debt Securities, the Preferred Stock and
the Common Stock and have examined such records, documents and questions of
law, and satisfied myself as to such matters of fact, as I have considered
relevant and necessary as a basis for this opinion.
In rendering the opinions expressed below, I have assumed the
authenticity of all documents submitted to me as originals and the conformity
to the originals of all documents submitted to me as copies. In addition, I
have assumed and have not verified the accuracy as to factual matters of each
document I reviewed.
Based on the foregoing, I am of the opinion that:
1. The Company is duly incorporated and validly existing under the laws
of the State of Delaware.
2. The Company has corporate power and authority to authorize and sell
the Debt Securities, the Preferred Stock and the Common Stock.
3. Each series of Debt Securities will be legally issued and binding
obligations of the Company (except to the extent enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting the enforcement of
creditors' rights generally and by the effect of general principles of
equity, regardless of whether enforceability is considered in a proceeding in
equity or at law) when (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become
effective under the Securities Act and the Indentures (including any
necessary supplemental indentures) shall have been qualified under the Trust
Indenture Act of 1939, as amended; (ii) a Prospectus Supplement with respect
to such series of Debt Securities shall have been filed with the SEC pursuant
to Rule 424 under the Securities Act; (iii) the Company's board of directors
or a duly authorized committee thereof shall have duly adopted final
resolutions authorizing the issuance and sale of such series of Debt
Securities as contemplated by the Registration Statement and the Indentures;
(iv) such series of Debt
<PAGE>
Securities shall have been duly executed and authenticated as provided in the
Indentures and such resolutions and shall have been duly delivered to the
purchasers thereof against payment of the agreed consideration therefor; (v)
any consents required pursuant to the Company's credit facilities shall have
been obtained; and (vi) in the case of any Debt Securities issued under the
Subordinated Debt Indenture, such Subordinated Debt Indenture shall have been
duly executed and delivered by the Company and U.S. Bank Trust National
Association, as trustee.
4. Each series of Preferred Stock will be validly issued, fully paid
and nonassessable when (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become
effective under the Securities Act; (ii) a Prospectus Supplement with respect
to the sale of such series of Preferred Stock shall have been filed with the
SEC pursuant to Rule 424 under the Securities Act; (iii) the Company's board
of directors or a duly authorized committee thereof shall have duly adopted
resolutions specifying the terms and conditions of such series of Preferred
Stock and authorizing its issuance; (iv) the Company shall have filed with
the Delaware Secretary of State a certificate of designation with respect to
such series of Preferred Stock; and (v) certificates representing such series
of Preferred Stock shall have been duly executed, countersigned and
registered and duly delivered to the purchasers thereof against payment
therefor in the manner described in the Registration Statement.
5. The shares of Common Stock will be validly issued, fully paid and
nonassessable when: (i) the Registration Statement, as finally amended
(including any necessary post-effective amendments), shall have become
effective under the Securities Act; (ii) a Prospectus Supplement with respect
to the sale of such Common Stock shall have been filed with the SEC pursuant
to Rule 424 under the Securities Act; (iii) the Company's board of directors
or a duly authorized committee thereof shall have duly adopted final
resolutions authorizing the issuance and sale of the Common Stock; and
(iv) certificates representing the Common Stock shall have been duly
executed, countersigned and registered and duly delivered to the purchasers
thereof against payment therefor in the manner described in the Registration
Statement.
This opinion letter is limited to the General Corporation Law of
the State of Delaware, the laws of the State of Illinois and the federal laws
of the United States of America.
For the purposes of this opinion letter, I have assumed that, at
the time of the issuance, sale and delivery of each series of Debt Securities
and Preferred Stock and each issue of Common Stock, as the case may be: (i)
the authorization thereof by the Company will not have been modified or
rescinded, and there will not have occurred any change in law affecting the
validity, legally binding character or enforceability thereof; (ii) in the
case of the Debt Securities, the Indentures will not have been modified or
amended; (iii) in the case of the issue of any series of Preferred Stock or
the issue of Common Stock, the terms and conditions of such Preferred Stock
or Common Stock, as the case may be, will be as expressly contemplated by the
Registration Statement; and (iv) the Second Restated Certificate of
Incorporation, as amended, and the By-Laws of the Company, as currently in
effect, will not have been modified or amended and will be in full force and
effect.
I do not find it necessary for the purposes of this opinion
letter to cover, and accordingly I express no opinion as to, the application
of the securities or blue sky laws of the various states or the District of
Columbia to sales of the Debt Securities, the Preferred Stock or the Common
Stock.
I hereby consent to the filing of this opinion letter as an
Exhibit to the Registration Statement
<PAGE>
and to all references to me under the caption "Validity of Securities" in the
Prospectus forming a part of the Registration Statement. In giving such
consent, I do not thereby admit that I am within the category of persons
whose consent is required by Section 7 of the Securities Act or the related
rules and regulations promulgated by the SEC.
Very truly yours,
/s/ Jerome S. Hanner
Exhibit 23(b)
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 ) and related Prospectus of Aon Corporation
for the registration of $500,000,000 of debt securities, preferred stock and
common stock and to the incorporation by reference therein of our reports
dated February 9, 1999 (except for Note 5 to Schedule I, as to which the date
is March 19, 1999), with respect to the consolidated financial statements of
Aon Corporation incorporated by reference in its Annual Report (Form 10-K)
for the year ended December 31, 1998 and the related financial statement
schedules included therein, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
May 17, 1999
Exhibit 23(c)
Board of Directors and Stockholders
Aon Corporation
We are aware of the incorporation by reference in the Registration Statement
(Form S-3) and related prospectus of Aon Corporation for the registration of
$500,000,000 of debt securities, preferred stock and common stock of our report
dated May 4, 1999 relating to the unaudited condensed consolidated interim
financial statements of Aon Corporation that are included in its Form 10-Q for
the quarter ended March 31, 1999.
/s/ ERNST & YOUNG LLP
May 17, 1999
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ PATRICK G. RYAN
-------------------
Patrick G. Ryan
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ DANIEL T. CARROLL
----------------------
Daniel T. Carroll
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ FRANKLIN A. COLE
---------------------
Franklin A. Cole
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ EDGAR D. JANNOTTA
---------------------
Edgar D. Jannotta
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ LESTER B. KNIGHT
---------------------
Lester B. Knight
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ PERRY J. LEWIS
-------------------
Perry J. Lewis
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ ANDREW J. McKENNA
---------------------
Andrew J. McKenna
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ NEWTON N. MINOW
---------------------
Newton N. Minow
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ RICHARD C. NOTEBAERT
-------------------------
Richard C. Notebaert
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ MICHAEL D. O'HALLERAN
--------------------------
Michael D. O'Halleran
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ DONALD S. PERKINS
---------------------
Donald S. Perkins
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ JOHN W. ROGERS, JR.
-----------------------
John W. Rogers, Jr.
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ GEORGE A. SCHAEFER
-----------------------
George A. Schaefer
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ FRED L. TURNER
-------------------
Fred L. Turner
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ ARNOLD R. WEBER
--------------------
Arnold R. Weber
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ CAROLYN Y. WOO
--------------------
Carolyn Y. Woo
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature
appears below constitutes and appoints Patrick G. Ryan, Harvey N. Medvin and
Raymond I. Skilling, and each of them, with full power to act without the
others, his true and lawful attorneys-in-fact and agents, with full and
several power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities, to sign a registration statement
on Form S-3 relating to the registration by Aon Corporation of up to $500
million principal amount of debt securities, preferred stock and common stock
and any and all amendments (including post-effective amendments) to such
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and any documents relating to the qualification or registration
under state Blue Sky or securities laws of such securities, granting unto
such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite or necessary to be
done in and about the premises, as fully to all intents and purposes he might
or could do in person, hereby ratifying and confirming all that said
attorneys-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.
IN WITNESS WHEREOF, the undersigned has signed his name this 16th
day of April, 1999.
/s/ HARVEY N. MEDVIN
----------------------
Harvey N. Medvin
================================================================================
Exhibit 25(a)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
_________
Aon Corporation
(Exact name of obligor as specified in its charter)
Delaware 36-3051915
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
123 North Wacker Drive
Chicago, Illinois 60606
(Address of principal executive offices) (Zip code)
_________
Debt Securities
(Title of the indenture securities)
================================================================================
<PAGE>
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.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany,
N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No.
33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-2-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
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 14th day of May, 1999.
THE BANK OF NEW YORK
By: /s/ MICHELE L. RUSSO
---------------------------------
Name: MICHELE L. RUSSO
Title: ASSISTANT TREASURER
<PAGE>
- ------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the
Federal Reserve System, at the close of business December 31, 1998, published in
accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and
currency and coin.................. $3,951,273
Interest-bearing balances........... 4,134,162
Securities:
Held-to-maturity securities......... 932,468
Available-for-sale securities....... 4,279,246
Federal funds sold and Securities
purchased under agreements to resell 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............37,861,802
LESS: Allowance for loan and
lease losses............619,791
LESS: Allocated transfer risk
reserve........................3,572
Loans and leases, net of unearned
income, allowance, and reserve..... 37,238,439
Trading Assets........................ 1,551,556
Premises and fixed assets (including
capitalized leases)................. 684,181
Other real estate owned............... 10,404
Investments in unconsolidated
subsidiaries and associated
companies........................... 196,032
Customers' liability to this bank on
acceptances outstanding............. 895,160
Intangible assets..................... 1,127,375
Other assets.......................... 1,915,742
Total assets.......................... -----------
$60,077,664
===========
LIABILITIES
Deposits:
In domestic offices................. $27,020,578
Noninterest-bearing.......11,271,304
Interest-bearing..........15,749,274
In foreign offices, Edge and
Agreement subsidiaries, and IBFs... 17,197,743
Noninterest-bearing..........103,007
Interest-bearing..........17,094,736
Federal funds purchased and
Securities sold under agreements to
repurchase.......................... 1,761,170
Demand notes issued to the
U.S.Treasury........................ 125,423
Trading liabilities................... 1,625,632
Other borrowed money:
With remaining maturity of one year
or less............................ 1,903,700
With remaining maturity of more
than one year through three years.. 0
With remaining maturity of more
than three years................... 31,639
Bank's liability on acceptances
executed and outstanding............ 900,390
Subordinated notes and debentures..... 1,308,000
Other liabilities..................... 2,708,852
----------
Total liabilities..................... 54,583,127
==========
EQUITY CAPITAL
Common stock.......................... 1,135,284
Surplus............................... 764,443
Undivided profits and capital reserves 3,542,168
Net unrealized holding gains (losses)
on available-for-sale securities.... 82,367
Cumulative foreign currency
translation adjustments............. ( 29,725)
Total equity capital.................. 5,494,537
Total liabilities and equity capital.. -----------
$60,077,664
===========
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my knowledge
and belief.
==============================================================================
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Reyni
Gerald L. Hassell Directors
Alan R. Griffith
- ------------------------------------------------------------------------------
________________________________________________________________________________
Exhibit 25(b)
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)___
_______________________________________________________
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
111 East Wacker Drive, 36-4046888
Suite 3000 I.R.S. Employer Identification No.
Chicago, Illinois 60601
(Address of principal executive offices) (Zip Code)
Patricia M. Trlak
111 East Wacker Drive, Suite 3000
Chicago, Illinois 60601
Telephone (312) 228-9447
(Name, address and telephone number of agent for service)
Aon CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
36-3051915
(I.R.S. Employer Identification No.)
123 NORTH WACKER DRIVE
CHICAGO, ILLINOIS 60606
(Address of Principal Executive Offices) (Zip Code)
SENIOR SUBORDINATED DEBT SECURITIES
(Title of the Indenture Securities)
________________________________________________________________________________
<PAGE>
FORM T-1
--------
ITEM 1. GENERAL INFORMATION. Furnish the following information as to
the Trustee.
a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency Washington, D.C.
b) Whether it is authorized to exercise corporate trust powers.
Yes
ITEM 2. AFFILIATIONS WITH OBLIGOR. If the obligor is an affiliate of the
Trustee, describe each such affiliation.
None
ITEMS 3-15 Not applicable because, to the best of Trustee's knowledge, the
Trustee is not a trustee under any other indenture under which any
other securities or certificates of interest or participation in any
other securities of the obligor are outstanding and there is not,
nor has there been, a default with respect to securities issued
under this indenture.
ITEM 16. LIST OF EXHIBITS: List below all exhibits filed as a part of
this statement of eligibility and qualification.
1. A copy of the Articles of Association of the Trustee now in effect,
incorporated herein by reference to Exhibit 1 to Item 16 of Form
T-1, Registration No. 333-18235*
2. A copy of the certificate of authority of the Trustee to commence
business, incorporated herein by reference to Exhibit 2 to Item 16
of Form T-1, Registration No. 333-18235 .*
3. A copy of the certificate of authority of the Trustee to exercise
corporate trust powers, incorporated herein by reference to Exhibit
3 to Item 16 of Form T-1, Registration No. 333-18235*
4. A copy of the existing bylaws of the Trustee, as now in effect,
incorporated herein by reference to Exhibit 4 to Item 16 of Form
T-1, Registration No. 333-18235*
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Trust
Indenture Act of 1939, incorporated herein by reference to Exhibit 6
of Form T-1, Registration No. 333-18235*
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, filed herewith.
8. Not applicable.
9. Not applicable.
* See* at top of page 3
-2-
<PAGE>
* Exhibits thus designated are incorporated herein by reference to Exhibits
bearing identical numbers in Item 16 of the Form T-1 filed by the Trustee
with the Securities and Exchange Commission with the specific references
noted.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the Trustee, U.S. BANK TRUST NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this statement of eligibility and
qualification to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago, State of Illinois on the 18th
day of May, 1999.
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ Patricia M. Trlak
--------------------------------
Patricia M. Trlak
Vice President and Assistant Secretary
-3-
<PAGE>
U.S. Bank Trust National Association Call Date:12/31/1998 ST-BK:17-1638 FFIEC033
400 North Michigan Avenue Page RC-1
Chicago, IL 60611 Vendor ID: D CERT:34094
9
Transit Number: 09600069
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated,
report the amount outstanding as of the last business day of the quarter.
<TABLE>
<CAPTION>
Schedule RC - Balance Sheet
C200 <-
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------
ASSETS RCON
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule RC-A): ----
a. Noninterest-bearing balances and currency and coin (1)____________________0081. . 11,111 1.a
b. Interest-bearing balances (2)____________________________________________ 0071. . 48,890 1.b
2. Securities:
a. Held-to-maturity securities (from Schedule RC-B, column A)________________1754. . 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)______________1773. . 3,735 2.b
3. Federal funds sold and securities purchased under agreements to resell_______1350. . 0 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income RCON
----
(from Schedule RC-C) ____________________________________________2122. . 0 . . . . . 4.a
b. LESS: Allowance for loan and lease losses______________________3123. . 0 . . . . . 4.b
c. LESS: Allocated transfer risk reserve_________________________3128. . 0 . . . . . 4.c2
d. Loans and leases, net of unearned income,
allowance, and reserve (item 4.a minus 4.b and 4.c)_______________________2125. . 0 4.d
5. Trading assets_______________________________________________________________3545. . 0 5.
6. Premises and fixed assets (including capitalized leases)____________________ 2145. . 82 6.
7. Other real estate owned (from Schedule RC-M)________________________________ 2150. . 0 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M)______________________________________________________________ 2130. . 0 8.
9. Customers' liability to this bank on acceptances outstanding________________ 2155. . 0 9.
10. Intangible assets (from Schedule RC-M)____________________________________2143. . 44,547 10.
11. Other assets (from Schedule RC-F)_________________________________________2160. . 2,739 11.
12. Total assets (sum of items 1 through 11)__________________________________2170. . 111,104 12.
_____________
<FN>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</FN>
</TABLE>
<PAGE>
U.S. Bank Trust National Association Call Date:12/31/1998 ST-BK:17-1638 FFIEC033
400 North Michigan Avenue Page RC-2
Chicago, IL 60611 Vendor ID: D CERT:34094
10
Transit Number: 09600069
<TABLE>
<CAPTION>
SCHEDULE RC - CONTINUED
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C>
13. Deposits: RCON
a. In domestic offices (sum of totals of ----
columns A and C from Schedule RC-E)_______________________________________ 2000. . 0 13.a
RCON
----
(1)Noninterest bearing (1) ____________6631. . 0 . . . . . 13.a.1
(2)Interest-bearing___________________ 6636. . 0 . . . . . 13.a.2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs_____________ . . . . .
(1)Noninterest-bearing____________________________________________________ . . . . .
(2)Interest-bearing_______________________________________________________ . . . . .
14. Federal funds purchased and securities sold under agreements to repurchase 2800. . 0 14.
15. a. Demand notes issued to the U.S. Treasury ______________________________ 2840. . 0 15.a
b. Trading liabilities ___________________________________________________ 3548. . 0 15.b
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
a. With a remaining maturity of one year or less ____________________________ 2332. . 0 16.a
b. With a remaining maturity of more than one year through three years ______ A547. . 0 16.b
c. With a remaining maturity of more than three years________________________ A548. . 0 16.c
17. Not applicable
18. Bank's liability on acceptances executed and outstanding__________________ 2920. . 0 18.
19. Subordinated notes and debentures (2)_____________________________________ 3200. . 0 19.
20. Other liabilities (from Schedule RC-G)____________________________________ 2930. . 2,627 20.
21. Total liabilities (sum of items 13 through 20)____________________________ 2948. . 2,627 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus_____________________________ 3838. . 0 23.
24. Common stock______________________________________________________________ 3230. . 1,000 24.
25. Surplus (exclude all surplus related to preferred stock)__________________ 3839. . 106,712 25.
26. a. Undivided profits and capital reserves_________________________________ 3632. . 762 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities____ 8434. . 3 26.b
27. Cumulative foreign currency translation adjustments_______________________ . . . . .
28. Total equity capital (sum of items 23 through 27)_________________________ 3210. . 108,477 28.
29. Total liabilities and equity capital (sum of items 21 and 28)_____________ 3300. . 111,104 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most comprehensive level of auditing work performed by
the bank by independent external auditors as of any date during
1997_______________________________________________________________________ 6724. . N/A M.1
1 = Independent audit of the bank 4 = Directors' examination of the bank
conducted in accordance with performed by other external
generally accepted auditing auditors (may be required by state
standards by a certified public 5 = chartering authority)
2 = accounting firm which submits a 6 = Review of bank's financial
report on the bank statements by external auditors
Independent audit of the bank's 7 = Compilation of the bank's
parent holding company conducted 8 = financial statements by external
in accordance with generally auditors
3 = accepted auditing standards by a Other audit procedures (excluding
certified public accounting firm tax preparation work)
which submits a report on the No external audit work
consolidated holding company
(but not on the bank separately)
Directors' examination of the
bank conducted in accordance
with generally accepted autiding
standards by a certified public
accounting firm (may be required
by state chartering authority)
___________
<FN>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
(2) Includes limited life preferred stock and related surplus.
</FN>
</TABLE>
<PAGE>
U.S. Bank Trust National Association Call Date:12/31/1998 ST-BK:17-1638 FFIEC033
400 North Michigan Avenue Page RC-3
Chicago, IL 60611 Vendor ID: D CERT:34094
11
Transit Number: 09600069
SCHEDULE RC-A - CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS
<TABLE>
<CAPTION>
Exclude assets held for trading.
C205 < -
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Cash items in process of collection, unposted debits, and currency and coin: RCON
----
a. Cash items in process of collection and unposted debits___________________________0020. . 0 1.a
b. Currency and coin ________________________________________________________________0080. . 0 1.b
2. Balances due from depository institutions in the U.S.:
a. U.S. branches and agencies of foreign banks ______________________________________0083. . 0 2.a
b. Other commercial banks in the U.S. and other depository institutions in the U.S. _0085. . 60,001 2.b
3. Balances due from banks in foreign countries and foreign central banks:
a. Foreign branches of other U.S. banks _____________________________________________0073. . 0 3.a
b. Other banks in foreign countries and foreign central banks _______________________0074. . 0 3.b
4. Balances due from Federal Reserve Banks _____________________________________________0090. . 0 4.
5. Total (sum of items 1 through 4) (must equal Schedule RC, sum of items 1.a and 1.b)__0010. . 60,001 5.
</TABLE>
<TABLE>
<CAPTION>
MEMORANDUM
Dollar Amounts in Thousands
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1. Noninterest-bearing balances due from commercial banks in the U.S. RCON
----
(included in items 2.a and 2.b above) _________________________________________ 0050. . 11,111 M.1
</TABLE>
