<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 2, 1999
REGISTRATION NO. 333-71069
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
AMENDMENT NO. 2
TO
FORM S-3
-------------------------
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 AND
POST-EFFECTIVE AMENDMENT NO. 3 TO REGISTRATION STATEMENT
ON FORM S-3 (NO. 33-59675)
-------------------------
EG&G, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
MASSACHUSETTS 04-2052042
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
-------------------------
45 WILLIAM STREET
WELLESLEY, MASSACHUSETTS 02481
(781) 237-5100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-------------------------
MURRAY GROSS, ESQ.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
EG&G, INC.
45 WILLIAM STREET
WELLESLEY, MASSACHUSETTS 02481
(781) 237-5100
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING
AREA CODE, OF AGENT FOR SERVICE)
-------------------------
COPIES TO:
<TABLE>
<S> <C>
DAVID E. REDLICK, ESQ. DAVID C. CHAPIN, ESQ.
HAL J. LEIBOWITZ, ESQ. ROPES & GRAY
HALE AND DORR LLP ONE INTERNATIONAL PLACE
60 STATE STREET BOSTON, MASSACHUSETTS 02110
BOSTON, MASSACHUSETTS 02109 (617) 951-7000
(617) 526-6000
</TABLE>
-------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement.
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, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]---------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]---------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
-------------------------
<PAGE> 2
THIS REGISTRATION STATEMENT, WHICH IS A NEW REGISTRATION STATEMENT, ALSO
CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 3 TO REGISTRATION STATEMENT NO.
33-59675, WHICH WAS DECLARED EFFECTIVE ON SEPTEMBER 27, 1995. SUCH
POST-EFFECTIVE AMENDMENT NO. 3 SHALL HEREAFTER BECOME EFFECTIVE CONCURRENTLY
WITH THE EFFECTIVENESS OF THIS REGISTRATION STATEMENT AND IN ACCORDANCE WITH
SECTION 8(c) OF THE SECURITIES ACT OF 1933. PURSUANT TO RULE 429 UNDER THE
SECURITIES ACT OF 1933, THE PROSPECTUS FILED AS PART OF THIS REGISTRATION
STATEMENT ALSO RELATES TO $35,000,000 OF DEBT SECURITIES PREVIOUSLY REGISTERED
BUT NOT SOLD UNDER THE REGISTRANT'S REGISTRATION STATEMENT NO. 33-59675. THE
$35,000,000 OF DEBT SECURITIES REMAINING UNSOLD FROM REGISTRATION STATEMENT NO.
33-59675 IS HEREBY COMBINED WITH THE $465,000,000 OF SECURITIES REGISTERED
PURSUANT TO THIS REGISTRATION STATEMENT TO ENABLE THE REGISTRANT TO OFFER AN
AGGREGATE AMOUNT OF $500,000,000 OF SECURITIES PURSUANT TO THE COMBINED
PROSPECTUS.
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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 3
The information in this preliminary prospectus is not complete and may be
changed. These securities may not be sold until the registration statement filed
with the Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell nor does it seek an offer to buy these
securities in any jurisdiction where the offer or sale is not permitted.
SUBJECT TO COMPLETION. DATED APRIL 2, 1999.
$500,000,000
EG&G, INC.
Common Stock
Preferred Stock
Depositary Shares
Debt Securities
Warrants
Stock Purchase Contracts
Stock Purchase Units
------------------------
EG&G, Inc. may from time to time issue up to $500,000,000 aggregate
principal amount of common stock, preferred stock, depositary shares, debt
securities, warrants, stock purchase contracts and/or stock purchase units. The
accompanying prospectus supplement will specify the terms of the securities.
------------------------
EG&G may sell these securities to or through underwriters, and also to
other purchasers or through agents. Goldman, Sachs & Co. and Merrill Lynch & Co.
may be among these underwriters or agents. The names of the underwriters or
agents will be set forth in the accompanying prospectus supplement.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY OTHER REGULATORY
BODY HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
This prospectus may not be used to consummate sales of securities unless it
is accompanied by a prospectus supplement.
GOLDMAN, SACHS & CO. MERRILL LYNCH & CO.
------------------------
Prospectus dated , 1999.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<S> <C>
About this Prospectus....................................... 2
Where You Can Find More Information......................... 2
Certain Forward-Looking Statements.......................... 3
EG&G, Inc................................................... 3
Ratios of Earnings to Fixed Charges......................... 4
Use of Proceeds............................................. 5
The Securities We May Offer................................. 5
Description of Capital Stock................................ 6
Description of Depositary Shares............................ 15
Description of Debt Securities.............................. 18
Description of Warrants..................................... 29
Description of Stock Purchase Contracts and Stock Purchase
Units..................................................... 33
Book-Entry Securities....................................... 33
Plan of Distribution........................................ 35
Validity of Securities...................................... 36
Experts..................................................... 36
</TABLE>
<PAGE> 5
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell any combination of the securities described in this prospectus in one or
more offerings up to a total dollar amount of $500,000,000. This prospectus
provides you with a general description of the securities we may offer. Each
time we sell securities, we will provide a prospectus supplement that will
contain specific information about the terms of that offering. The prospectus
supplement may also add, update or change information contained in this
prospectus. This prospectus, together with applicable prospectus supplements,
includes all material information relating to this offering.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file at the SEC's public reference rooms located at:
- 450 Fifth Street, N.W.
Washington, D.C. 20549;
- 7 World Trade Center
New York, New York 10048; and
- Citicorp Center
500 West Madison Street
Chicago, Illinois 60661.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference rooms and their copy charges.
Our common stock is listed and traded on the New York Stock Exchange. We
will refer to the New York Stock Exchange as the "NYSE" in this prospectus. You
may also inspect the information we file with the SEC at the NYSE, 20 Broad
Street, New York, New York 10005.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings made with the SEC
under Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
until we sell all of the securities.
- Our Annual Report on Form 10-K for the fiscal year ended January 3, 1999
filed with the SEC on March 30, 1999;
- Our Current Reports on Form 8-K filed with the SEC on December 30, 1998
(as amended by Forms 8-K/A filed February 26, 1999; March 10, 1999 and
March 30, 1999); January 25, 1999; March 5, 1999 and March 15, 1999;
- The description of EG&G's common stock, which is contained in our
Registration Statement on Form 8-A (File No. 1-05075) filed with the SEC
on May 3, 1965, as this description may be amended from time to time; and
- The description of EG&G's preferred stock purchase rights, which is
contained in our Registration Statement on Form 8-A (File No. 1-05075)
filed with the SEC on February 9, 1995, as amended by Amendment No. 1 to
Form 8-A (File No. 1-05075) filed with the SEC on February 9, 1995, as
this description may be further amended from time to time.
Each of these documents is available from the SEC's web site and public
reference rooms described above. You may also request a copy of these filings,
excluding
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<PAGE> 6
exhibits, at no cost by writing or telephoning us at the following address:
Vice President of Investor Relations
EG&G, Inc.
45 William Street
Wellesley, Massachusetts 02481
(781) 237-5100
You should rely only on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not authorized
anyone else to provide you with different information.
We are not making an offer of the securities covered by this prospectus in
any state where the offer is not permitted. You should not assume that the
information in this prospectus or any prospectus supplement is accurate as of
any date other than the date on the front of those documents.
CERTAIN FORWARD-LOOKING STATEMENTS
Certain statements in this prospectus and in the documents incorporated by
reference in this prospectus constitute "forward-looking statements" within the
meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Exchange Act. For this purpose, any statements contained in this prospectus or
incorporated by reference in this prospectus that are not statements of
historical fact may be deemed to be forward-looking statements. Words such as
"believes," "anticipates," "plans," "expects" and similar expressions are
intended to identify forward-looking statements. There are a number of important
factors that could cause our results to differ materially from those indicated
by the forward-looking statements included or incorporated by reference in this
prospectus, including among others, the factors included in the filings and
documents incorporated by reference in this prospectus.
EG&G, INC.
EG&G is a global technology company that designs and manufactures products
for medical, aerospace, semiconductor and a wide range of other markets and
delivers skilled support services to government and industrial customers. In
1998, we had sales of $1.4 billion from continuing operations. As of March 1,
1999, EG&G and its subsidiaries employed approximately 13,000 persons.
We classify our continuing operations into five operating segments:
- LIFE SCIENCES. Our Life Sciences operating segment manufactures
instrument systems and related products used for cell and disease
research. These systems are used in university and pharmaceutical
research facilities, hospitals and clinical laboratories around the
world. In fiscal 1998, our Life Sciences operating segment had sales of
$148 million from continuing operations.
- OPTOELECTRONICS. Our Optoelectronics operating segment designs and
manufactures sensors, specialty light bulbs and optical and electronic
parts for industrial, consumer and medical applications. In fiscal 1998,
our Optoelectronics operating segment had sales of $269 million from
continuing operations.
- INSTRUMENTS. Our Instruments operating segment is a leading manufacturer
of X-ray security products, an advanced food inspection system and a wide
range of analytical instruments for process measurement, nuclear,
electrochemical and photolithography applications. In addition, our
Instruments operating segment conducts lubricant and structural testing
simulations for the transportation industry. In fiscal 1998, our
Instruments operating segment had sales of $247 million from continuing
operations.
- ENGINEERED PRODUCTS. Our Engineered Products operating segment designs
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<PAGE> 7
and manufactures advanced seals, sealing systems and devices, valves and
pneumatic systems and components to control gas, fluid and air flow. In
fiscal 1998, our Engineered Products operating segment had sales of $168
million from continuing operations.
- TECHNICAL SERVICES. Our Technical Services operating segment provides
management, engineering, scientific, technical and operations support
services to industry and government customers. In fiscal 1998, our
Technical Services operating segment had sales of $554 million from
continuing operations.
EG&G was incorporated in Massachusetts in 1947. Our principal and executive
offices are located at 45 William Street, Wellesley, Massachusetts 02481, and
our telephone number is (781) 237-5100. Our internet address is
http://www.egginc.com.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges are computed by dividing income
from continuing operations before income taxes and fixed charges, as adjusted
for certain equity method investments, by fixed charges. Fixed charges consist
of interest on all indebtedness, including capital lease obligations,
amortization of debt expenses and a percentage of rental expense of operating
leases that represents interest. Our consolidated ratios of earnings to fixed
charges for each of the periods indicated are as follows:
<TABLE>
<CAPTION>
FISCAL YEARS ENDED
--------------------------------------------------------------------
JANUARY 1, DECEMBER 31, DECEMBER 29, DECEMBER 28, JANUARY 3,
1995 1995 1996 1997 1999
---------- ------------ ------------ ------------ ----------
<S> <C> <C> <C> <C> <C>
Ratio of earnings to
fixed charges........ --(1) 6.80x 5.14x 4.05x 9.68x
</TABLE>
- ---------------
(1) The deficiency of earnings to cover fixed charges for the fiscal year ended
January 1, 1995 was $17.4 million.
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<PAGE> 8
USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, we
expect to use the net proceeds from the sale of the securities for general
corporate purposes, which may include, among other things:
- the repayment of outstanding indebtedness;
- working capital;
- capital expenditures;
- the repurchase of shares of common stock; and
- acquisitions.
The precise amount and timing of the application of such proceeds will depend
upon our funding requirements and the availability and cost of other funds.
THE SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus, together
with the applicable prospectus supplements, summarize all the material terms and
provisions of the various types of securities that we may offer. The particular
terms of the securities offered by any prospectus supplement will be described
in the prospectus supplement relating to the securities. If indicated in the
applicable prospectus supplement, the terms of the securities may differ from
the terms summarized below. The prospectus supplement will also contain
information, where applicable, about material United States federal income tax
considerations relating to the securities, and the securities exchange, if any,
on which the securities will be listed.
We may sell from time to time, in one or more offerings:
- common stock;
- preferred stock;
- depositary shares;
- debt securities;
- warrants to purchase any of the securities listed above;
- stock purchase contracts to purchase common stock, preferred stock or
depositary shares; and/or
- stock purchase units consisting of a stock purchase contract and either
debt securities or debt obligations of certain third parties.
In this prospectus, we will refer to the common stock, preferred stock,
depositary shares, debt securities, warrants, stock purchase contracts and stock
purchase units collectively as "securities." The total dollar amount of all
securities that we may issue will not exceed $500,000,000.
If we issue debt securities at a discount from their original stated
principal amount, then, for purposes of calculating the total dollar amount of
all securities issued under this prospectus, we will treat the initial offering
price of the debt securities as the total original principal amount of the debt
securities.
This prospectus may not be used to consummate a sale of securities unless
it is accompanied by a prospectus supplement.
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<PAGE> 9
DESCRIPTION OF CAPITAL STOCK
The following description of our common stock and preferred stock, together
with the additional information included in any applicable prospectus
supplements, summarizes the material terms and provisions of these types of
securities. For the complete terms of our common stock and preferred stock,
please refer to our charter, bylaws and stockholder rights plan that are
incorporated by reference into the registration statement which includes this
prospectus. The terms of these securities may also be affected by the
Massachusetts General Laws. While the terms summarized below will apply
generally to any future common stock or preferred stock that we may offer, the
particular terms of any series of these securities will be described in more
detail in the applicable prospectus supplement and may vary from the terms
summarized below.
Under our charter our authorized capital stock consists of 100,000,000
shares of common stock, $1.00 par value per share, and 1,000,000 shares of
preferred stock, $1.00 par value per share. We will describe the specific terms
of any common stock or preferred stock we may offer in a prospectus supplement.
If indicated in a prospectus supplement, the terms of any common stock or
preferred stock offered under that prospectus supplement may differ from the
terms described below.
COMMON STOCK
As of March 5, 1999, EG&G had 44,923,093 shares of common stock issued and
outstanding. Each outstanding share of common stock currently has attached to it
one preferred share purchase right issued under our stockholder rights plan,
which is summarized below. All outstanding shares of common stock are duly
authorized, validly issued, fully paid and nonassessable.
VOTING
For all matters submitted to a vote of stockholders, each holder of common
stock is entitled to one vote for each share registered in his or her name on
the books of EG&G. Our common stock does not have cumulative voting rights. As a
result, subject to the voting rights of any outstanding preferred stock, of
which there currently is none, persons who hold more than 50% of the outstanding
common stock entitled to elect members of the board of directors can elect all
of the directors who are up for election in a particular year.
DIVIDENDS
If our board of directors declares a dividend, holders of common stock will
receive payments from the funds of EG&G that are legally available to pay
dividends. However, this dividend right is subject to any preferential dividend
rights we may grant to the persons who hold preferred stock, if any is
outstanding.
LIQUIDATION
If EG&G is dissolved, the holders of common stock will be entitled to share
ratably in all the assets that remain after we pay our liabilities and any
amounts we may owe to the persons who hold preferred stock, if any is
outstanding.
OTHER RIGHTS AND RESTRICTIONS
Holders of common stock do not have preemptive rights, and they have no
right to convert their common stock into any other securities. Our common stock
is not subject to redemption by EG&G. Our charter and bylaws do not restrict the
ability of a holder of common stock to transfer his or her shares of common
stock.
When we issue shares of common stock, the shares will be fully paid and
non-assessable. Massachusetts law provides that, if we make a distribution to
our stockholders other than a distribution of our capital stock, when we are
insolvent, or that renders us insolvent, then our stockholders would be required
to pay back to us the amount of the distribution we made to them, or the portion
of the distribution that causes us to become insolvent.
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<PAGE> 10
LISTING
Our common stock is listed on the NYSE.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for our common stock is Boston EquiServe,
L.P.
PREFERRED STOCK
As of March 5, 1999, we had no shares of preferred stock outstanding. Our
charter authorizes our board of directors to issue preferred stock in one or
more series and to determine the voting rights and dividend rights, dividend
rates, liquidation preferences, conversion rights, redemption rights, including
sinking fund provisions and redemption prices, and other terms and rights of
each series of preferred stock. The general terms of our undesignated preferred
stock are described below under the caption "-- Undesignated Preferred Stock."
As of the date of this prospectus, our board of directors had designated
70,000 shares of preferred stock as "Series C Junior Participating Preferred
Stock" in connection with our stockholder rights plan. The rights, preferences
and privileges of the Series C Preferred Stock are described below.
SERIES C PREFERRED STOCK
Our Board has reserved the Series C Preferred Stock for issuance in
connection with our stockholder rights plan, which is described below. As of
March 5, 1999, there were no shares of Series C Preferred Stock outstanding. The
following description is a summary of all the material terms of our Series C
Preferred Stock. It does not restate these terms in their entirety. We urge you
to read our charter because it, and not this description, defines the rights of
holders of Series C Preferred Stock. We have filed a copy of our charter as an
exhibit to the registration statement which includes this prospectus. This
summary of our Series C Preferred Stock is not complete and is qualified by
reference to our charter.
VOTING. Each share of Series C Preferred Stock is entitled to 1,000 votes,
subject to adjustment. Except as provided below, each share of Series C
Preferred Stock votes together with the holders of common stock and all other
capital stock of EG&G on all matters voted on by stockholders.
In the event that we fail to pay six quarterly dividends on the Series C
Preferred Stock, the holders of the Series C Preferred Stock, voting as a single
class, will have the right to elect two members of our board of directors. Any
director elected by the holders of Series C Preferred Stock may be removed with
or without cause by such holders. The terms of all directors elected under this
provision will terminate when the dividend arrearage is fully paid and, in
addition, we have paid at least one regular dividend after the curing of the
arrearage.
Without the vote of at least two-thirds of the outstanding shares of Series
C Preferred Stock, we may not alter or repeal any provisions in our charter so
as to adversely affect the rights of the Series C Preferred Stock.
DIVIDENDS. With respect to the payment of dividends and the distribution
of assets, the Series C Preferred Stock ranks junior to all series of all other
series of preferred stock, unless the terms of a particular series provide
otherwise. The holders of shares of Series C Preferred Stock are entitled to
cash dividends equal to the greater of (a) $1.00 or (b) 1,000 times the per
share amount of all cash dividends and 1,000 times the per share amount of all
non-cash dividends, other than dividends payable in common stock or by a
subdivision of the outstanding common stock, which have been declared on the
common stock since the preceding quarterly dividend payment date. Dividends on
the Series C Preferred Stock are payable quarterly on the first day of March,
June, September and December each year.
Our board of directors must declare a dividend on the Series C Preferred
Stock after it declares any dividend on the common stock, other than dividends
payable in common stock. However, if our board of directors does not declare a
dividend on the common stock during the period between quarterly dividend
payment dates, a dividend
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of $1.00 per share of Series C Preferred Stock will still be payable on the
following quarterly dividend payment date. Dividends begin to accrue and
accumulate on outstanding shares of Series C Preferred Stock from the quarterly
dividend payment date preceding the date of issuance of such shares.
LIQUIDATION. If EG&G liquidates, dissolves or winds up, then:
- we must pay the holders of outstanding shares of Series C Preferred
Stock, before we make any payment to the holders of shares of stock
ranking junior to the Series C Preferred Stock, an amount equal to $1,000
per share, plus all unpaid accrued dividends or, if greater, an amount
equal to 1,000 times the amount to be paid to holders of common stock;
and
- we may not make any distribution to the holders of shares of stock
ranking on a parity with the Series C Preferred Stock, except for
distributions made ratably to the holders of Series C Preferred Stock and
other preferred stocks.
For purposes of this liquidation preference, neither the consolidation,
merger or other business combination of EG&G with another entity nor the sale of
all or any of our property, assets or business will be treated as a liquidation,
dissolution or winding up of EG&G.
MERGER, CONSOLIDATION, ETC. If we are a party to any merger, consolidation
or similar transaction in which shares of common stock are exchanged or changed
into stock or securities of another entity, cash or property of another entity,
then the Series C Preferred Stock will be exchanged or changed into an amount
per share equal to 1,000 times the amount of consideration into which or for
which each share of common stock is changed or exchanged in such merger,
consolidation or similar transaction.
ADJUSTMENTS FOR STOCK SPLITS AND OTHER EVENTS. In the event that we declare
a dividend on our common stock that is payable in common stock or we effect a
subdivision, combination or consolidation of the outstanding shares of our
common stock into a greater or lesser number of shares, then the dividend,
liquidation and merger or consolidation amounts payable to holders of Series C
Preferred Stock will be increased or reduced in proportion to the resulting
increase or decrease in the total number of shares of common stock outstanding.
CERTAIN RESTRICTIONS. If any quarterly dividends payable on the Series C
Preferred Stock are in arrears, then, until all of these unpaid dividends have
been paid in full, we may not:
- declare or pay dividends on any shares of stock ranking junior to the
Series C Preferred Stock;
- declare or pay any dividends on any shares of stock ranking on a parity
with the Series C Preferred Stock, except ratably among all of these
parity stocks;
- redeem any stock ranking junior to the Series C Preferred Stock, unless
we redeem the junior stock by issuing additional shares of stock ranking
junior to the Series C Preferred Stock; or
- redeem any shares of Series C Preferred Stock or shares of stock ranking
on a parity with the shares of Series C Preferred Stock, except in
accordance with a purchase offer to all holders of these series or
classes upon terms that the board of directors deems fair and equitable.
We may not permit any of our subsidiaries to purchase any shares of EG&G
stock, unless we are able at such time to purchase shares in accordance with the
terms described in the preceding paragraph.
REDEMPTION. We may not redeem the Series C Preferred Stock.
FRACTIONAL SHARES. We may issue the Series C Preferred Stock in fractions
of a single share, but each fraction must be a multiple of one one-thousandth of
a share. Each fractional share of Series C Preferred Stock will have
proportionate voting, dividend,
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<PAGE> 12
liquidation and other rights as discussed above.
UNDESIGNATED PREFERRED STOCK
This summary of the undesignated preferred stock relates to terms and
conditions that we expect will apply to all series of the preferred stock
offered under this prospectus. The applicable prospectus supplement will
describe the particular terms of any series of preferred stock offered. If
indicated in the prospectus supplement, the terms of any series may differ from
the terms described below.
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of any preferred
stock being offered by this prospectus. It does not restate the terms and
provisions in their entirety. We urge you to read our charter and the applicable
certificate of designation because they, and not this description, define the
rights of any holders of preferred stock. We have filed our charter as an
exhibit to the registration statement which includes this prospectus. We will
incorporate by reference as an exhibit to the registration statement the form of
any certificate of designations before the issuance of any series of preferred
stock.
GENERAL. The applicable prospectus Supplement will describe the following
terms of each series of preferred stock:
- the designation of the series and the number of shares offered;
- the amount of the liquidation preference per share;
- the initial public offering price of the shares to be sold;
- the dividend rate applicable to the series, the dates on which dividends
will be payable and the dates from which dividends will begin to
accumulate, if any;
- any redemption or sinking fund provisions;
- any conversion or exchange rates;
- any antidilution provisions;
- any additional voting and other rights, preferences, privileges and
restrictions;
- any listing of the series on an exchange;
- the relative ranking of the series as to dividend rights and rights upon
liquidation, dissolution or winding up of EG&G; and
- any other terms of the series.
Upon receipt of the purchase price, the shares of preferred stock that we
issue will be fully paid and nonassessable. The liquidation price or preference
of any series of preferred stock is not indicative of the price at which the
shares will actually trade after the date of issuance.
Although our board of directors has no intention at the present time of
doing so, it could issue a series of preferred stock that could impede the
completion of a merger, tender offer or other takeover attempt. Our board of
directors will issue preferred stock under these circumstances only if it
determines that the issuance is in the best interests of EG&G and its
stockholders. In addition, the terms of a series of preferred stock might
discourage a potential acquiror from attempting to acquire EG&G in a manner that
changes the composition of our board of directors, even when a majority of our
stockholders believe that an acquisition under these circumstances would be in
their best interests or when stockholders would receive a premium for their
stock over the then current market price.
The NYSE currently requires us to obtain the approval of our stockholders
before listing securities for trading on the NYSE under some circumstances,
including:
- some issuances to our directors, officers, substantial security holders
and other closely-related parties;
- issuances relating to a private sale of our common stock at a price below
the book or fair market value of our common stock that increase the total
number of shares of our common stock outstanding by 20% or more; and
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- issuances that will result in a change of control of EG&G.
VOTING. Except as described below, no series of preferred stock will have
voting rights. Under Massachusetts law, however, a holder of our capital stock
is generally entitled to vote whenever an amendment of our charter would
adversely affect the rights of the class of securities held by the holder. If we
wish to amend our charter and the amendment would adversely affect the rights of
a particular class or series of our capital stock, we would be required to
obtain the affirmative vote of at least two-thirds of the shares of that class
or series. Under these circumstances, all series of a class of capital stock
that are adversely affected in the same manner vote together as one class, and
any other series that is adversely affected in a different manner votes as a
separate class.
Without the vote of the holders of two-thirds of the then outstanding
shares of a series of preferred stock voting as a single class together with the
holders of shares of all other series of preferred stock entitled to vote on the
following matters, we may not:
- authorize or issue any shares of a class or series of stock ranking
senior to the series of preferred stock; or
- approve any amendment to our charter or applicable certificate of
designations, which would materially and adversely affect the series of
preferred stock.
An amendment which (a) increases the number of authorized shares or
authorizes the creation or issuance of any stock ranking junior to or on a
parity with such series of preferred stock, or (b) reflects a change in control
of EG&G in which EG&G is not the surviving entity, will not be deemed to
materially and adversely affect such series of preferred stock.
In addition, if six quarterly dividend payments on a series of preferred
stock have accrued but remain unpaid, then the holders of this series of
preferred stock:
- will have one vote per share; and
- will have the right, voting together as a single class with the holders
of shares of all other series of preferred stock entitled to vote for the
election of directors, other than the Series C Preferred Stock, to elect
two members to our board of directors.
This voting right will continue until dividends on this series of preferred
stock have been paid in full for four consecutive dividend periods. Directors
elected in this fashion will hold office for a term expiring on the earlier of
the payment by EG&G of dividends on this series of preferred stock for four
consecutive dividend periods or the next annual meeting of stockholders.
As described below under the caption "Description of Depositary Shares," if
EG&G elects to issue depositary shares, each depositary share will, in effect,
be entitled to a fraction of a vote per depositary share.
RANK. Each series of preferred stock will, with respect to dividend and
liquidation rights, rank senior to common stock and the Series C Preferred
Stock. All shares of each series of preferred stock will be of equal rank with
each other. Each series of preferred stock may vary as to rank and priority with
other series of preferred stock.
DIVIDENDS. Holders of each series of preferred stock will be entitled to
receive, if declared by our board of directors, cash dividends, payable on the
dates and at the rates as described in the applicable prospectus supplement.
Dividends will be cumulative and will accrue from the date stated in the
applicable prospectus supplement.
No dividends may be declared or paid on a series of preferred stock ranking
on a parity with or junior to the series of preferred stock offered by the
applicable prospectus supplement for any period unless dividends have been or
are at the same time declared and paid on the offered series of preferred stock.
Any dividend paid on a series of preferred stock and any other parity preferred
stock in an amount that is less than the full amount of the dividend entitled to
be received by this series of preferred stock and other parity preferred stock
will be paid ratably among all holders of this series of preferred
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stock and parity preferred stock. We will not pay any interest on any dividends
that are in arrears.
If we have not paid dividends in full on the series of preferred stock
offered by the applicable prospectus supplement, then we may not:
- declare or pay cash dividends on any junior stock, including common stock
and Series C Preferred Stock;
- repurchase or redeem any shares of junior stock or pay any monies into a
sinking fund for the redemption of any of these shares, unless we convert
or exchange the repurchased or redeemed stock for junior stock; or
- repurchase or redeem any series of preferred stock ranking on a parity
with the offered series of preferred stock or pay any monies into a
sinking fund for the redemption of any of these shares, unless we (a)
repurchase or redeem on a pro rata basis all or a part of the outstanding
parity preferred stock or (b) convert or exchange the redeemed or
repurchased stock for junior stock.
Any dividend payment made on a series of preferred stock will first be
credited against the earliest accrued but unpaid dividends due on the series.
LIQUIDATION. Unless otherwise specified in the applicable prospectus
supplement, if EG&G liquidates, dissolves or winds up, then the holders of a
series of preferred stock will be entitled to receive, subject to the rights of
creditors, but before any payment to the holders of common stock or any other
junior stock, an amount equal to the liquidation preference per share described
in the applicable prospectus supplement. In addition to this liquidation
preference, holders of preferred stock will also be entitled to receive accrued
and unpaid dividends on their shares of preferred stock, if such dividends are
cumulative.
If the amounts available for distribution upon liquidation, dissolution or
winding up of EG&G are not sufficient to satisfy the full liquidation rights of
all outstanding series of preferred stock and all stock ranking on a parity with
this preferred stock, then the holders of each series of stock will share
ratably in the distribution, which, in the case of preferred stock, may include
a cumulative dividend.
After payment of the full amount of the liquidation preference, the holders
of a series of preferred stock will not be entitled to any further participation
in the distribution of assets by EG&G.
CONVERSION OR EXCHANGE. The terms, if any, on which preferred stock of any
series may be converted or exchanged for another class or series of securities
will be described in the applicable prospectus supplement.
REDEMPTION. The applicable prospectus supplement will describe the terms,
if any, on which we may redeem any series of preferred stock. We will cancel all
redeemed or repurchased shares of a series of preferred stock and restore these
shares to the status of authorized but unissued shares of preferred stock.
OTHER RIGHTS. The applicable prospectus supplement will describe any other
preferences, voting powers or relative participating, optional or other special
rights of a series of preferred stock. The holders of preferred stock will not
have any preemptive rights to subscribe for any securities of EG&G.
TITLE. EG&G, the transfer agent and registrar for a series of preferred
stock and any agent of EG&G or such transfer agent and registrar may treat the
registered owner of preferred stock of the series as the absolute owner of the
preferred stock for all purposes.
TRANSFER AGENT AND REGISTRAR. The applicable prospectus supplement will
name the transfer agent and registrar for each series of preferred stock.
STOCKHOLDER RIGHTS PLAN
On January 25, 1995, our board of directors adopted a stockholder rights
plan. Under our stockholder rights plan, each of our common stockholders
received a dividend
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of one "preferred stock purchase right" for each outstanding share of common
stock that the stockholder owned. We refer to these preferred stock purchase
rights as the "Rights." The Rights trade automatically with our shares of common
stock and become exercisable only under certain circumstances described below.
The purpose of the Rights is to encourage potential acquirors to negotiate
with our board of directors before attempting a takeover bid and to provide our
board of directors with leverage in negotiating on behalf of our stockholders
the terms of any proposed takeover. The Rights may have certain antitakeover
effects. They should not, however, interfere with any merger or other business
combination approved by our board of directors.
The following description is a summary of all the material terms of our
stockholder rights plan. It does not restate these terms in their entirety. We
urge you to read our stockholder rights plan because it, and not this
description, defines the terms and provisions of our plan. We have filed a copy
of our rights agreement as an exhibit to our Registration Statement on Form 8-A,
as amended, which was filed with the SEC on February 9, 1995 and which is
incorporated by reference into the registration statement which includes this
prospectus. You may obtain a copy at no charge by writing to us at the address
listed under the caption "Where You Can Find More Information."
EXERCISE OF RIGHTS
Until a Right is exercised, the holder of a Right will not have any rights
as a stockholder. When the Rights become exercisable, holders of the Rights will
be able to purchase from us a unit equal to 1/1000th of a share of our Series C
Preferred Stock, at a purchase price of $60 per unit.
In general, the rights will become exercisable upon the earlier of:
- ten days following a public announcement by us that a person or group has
acquired beneficial ownership of 20% or more of the outstanding shares of
common stock; or
- ten business days after the beginning of a tender offer or exchange offer
that would result in a person or group beneficially owning 30% or more of
the common stock.
FLIP IN EVENT
If a person or group becomes the beneficial owner of 20% or more of our
common stock, then each Right will then entitle its holder to receive, upon
exercise, a number of shares of our common stock which is equal to (a) the
exercise price of the right divided by (b) one-half of the market price of our
common stock on the date of the occurrence of this event. We refer to this
occurrence as a "flip in event." A flip in event does not occur if there is an
offer for all of our outstanding shares of common stock that our board of
directors determines is fair to our stockholders and in EG&G's best interests.
FLIP OVER EVENT
If at any time after a person or group becomes the beneficial owner of 20%
or more of our common stock, (a) EG&G is acquired in a merger or other
transaction in which EG&G does not survive or in which our common stock is
changed or exchanged or (b) 50% or more of EG&G's assets or earning power is
sold or transferred, then each holder of a Right will be entitled to receive,
upon exercise, a number of shares of common stock of the acquiring company in
the transaction equal to (1) the exercise price of the Right divided by (2)
one-half of the market price of the acquiring company's common stock on the date
of the occurrence of this event. This exercise right will not occur if the
merger or other transaction follows an offer for all of our outstanding shares
of common stock that our board of directors determines is fair to our
stockholders and in EG&G's best interests.
EXCHANGE OF RIGHTS
At any time after a flip in event, our board of directors may exchange the
Rights by
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providing to the holder one share of our common stock or one one-thousandth of a
share of our Series C Preferred Stock for each of the holder's Rights.
REDEMPTION OF RIGHTS
At any time until ten days after the date on which a person or group
acquires beneficial ownership of 20% or more of the outstanding shares of our
common stock, we may redeem the Rights at a price of $.01 per Right. The Rights
will expire on the close of business on February 8, 2005, subject to earlier
expiration or termination as described in our stockholder rights plan.
CERTAIN PROVISIONS OF EG&G'S
BYLAWS AND MASSACHUSETTS LAW
EG&G'S BYLAWS
EG&G's bylaws impose restrictions and limitations on the ability of
stockholders to call special meetings of stockholders. For example, requests for
stockholder meetings may be made only during limited periods of time and must be
made by a group of stockholders holding at least 40%, or, if less, the maximum
percentage permitted by law, of the outstanding capital stock entitled to vote
at the meeting.
BUSINESS COMBINATIONS WITH INTERESTED STOCKHOLDERS
The Massachusetts General Laws contain antitakeover provisions regarding,
among other things, business combinations with an affiliated stockholder. In
general, the Massachusetts General Laws prevent a publicly held Massachusetts
corporation from engaging in a "business combination" as defined in the
Massachusetts General Laws with an "interested stockholder" for a period of
three years after the date of the transaction in which the person became an
interested stockholder, unless:
- before the date on which the person became an interested stockholder, the
board of directors of the corporation approved either the business
combination or the transaction in which the person became an interested
stockholder;
- the interested stockholder acquires 90% of the outstanding voting stock
of the corporation at the time it becomes an interested stockholder; or
- the business combination is approved by the board of directors and the
holders of two-thirds of the outstanding voting stock of the corporation
voting at a meeting, excluding the voting stock owned by the interested
stockholder.
An "interested stockholder" is generally a person owning more than 5% of the
outstanding voting stock of the corporation. A business combination includes
mergers, consolidations, stock and assets sales and other transactions with the
interested stockholder which result in a financial benefit to the interested
stockholder.
CONTROL SHARE ACQUISITIONS
EG&G has elected to opt out of the control share acquisitions provision of
the Massachusetts General Laws. EG&G could, however, opt into these control
share acquisitions provisions at any time by amending its bylaws.
In general, the control share acquisitions provision of the Massachusetts
General Laws provides that any person, including his or her affiliates, who
acquires shares of a corporation that is subject to the control share
acquisitions statute and whose shares represent one-fifth or more, one-third or
more, or a majority or more of the voting power of the corporation in the
election of directors cannot exercise any voting power with respect to those
shares, or any shares acquired by the person within 90 days before or after an
acquisition of this nature, unless these voting rights are authorized by the
stockholders of the corporation.
The authorization of voting rights requires the affirmative vote of the
holders of a
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majority of the outstanding voting shares, excluding shares owned by:
- the person making an acquisition of this nature;
- any officer of the corporation; and
- any employee who is also a director of the corporation.
There are several other types of share acquisitions that are not subject to
this provision of the Massachusetts General Laws, including acquisitions of
shares (a) under a tender offer, merger or consolidation which is made in
connection with an agreement to which the corporation is a party and (b)
directly from the corporation or a wholly owned subsidiary of the corporation.
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DESCRIPTION OF DEPOSITARY SHARES
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of the depositary
shares that we may offer under this prospectus and the related deposit
agreements and depositary receipts. Specific deposit agreements and depositary
receipts will contain additional important terms and provisions and will be
incorporated by reference into the registration statement which includes this
prospectus before we issue any depositary shares.
This summary of depositary agreements, depositary shares and depositary
receipts relates to terms and conditions applicable to these types of securities
generally. The particular terms of any series of depositary shares will be
summarized in the applicable prospectus supplement. If indicated in the
applicable prospectus supplement, the terms of any series may differ from the
terms summarized below.
GENERAL
We may elect to offer fractional shares of preferred stock rather than full
shares of preferred stock. If so, we will issue "depositary receipts" for these
"depositary shares." Each depositary share will represent a fraction of a share
of a particular series of preferred stock. Each holder of a depositary share
will be entitled, in proportion to the fraction of preferred stock represented
by that depositary share, to the rights and preferences of the preferred stock,
including dividend, voting, redemption, conversion and liquidation rights. We
will enter into a deposit agreement with a depositary, which will be named in
the related prospectus supplement.
In order to issue depositary shares, we will issue preferred stock and
immediately deposit these shares with the depositary. The depositary will then
issue and deliver depositary receipts to the persons who purchase depositary
shares. Each whole depositary share issued by the depositary may represent a
fraction of a share of preferred stock held by the depositary. The depositary
will issue depositary receipts in a form that reflects whole depositary shares,
and each depositary receipt may evidence any number of whole depositary shares.
Pending the preparation of definitive engraved depositary receipts, a
depositary may, upon our written order, issue temporary depositary receipts,
which will temporarily entitle the holders to all the rights pertaining to the
definitive depositary receipts. We will bear the costs and expenses of promptly
preparing definitive depositary receipts and of exchanging the temporary
depositary receipts for such definitive depositary receipts.
DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash and non-cash distributions it
receives with respect to the underlying preferred stock to the record holders of
depositary shares in proportion to the number of depositary shares they hold. In
the case of non-cash distributions, the depositary may determine that the
distribution cannot be made proportionately or that it may not be feasible to
make the distribution. If so, the depositary will, with our approval, adopt a
method it deems equitable and practicable to effect the distribution, including
the sale, public or private, of the securities or other non-cash property it
receives in the distribution at a place and on terms it deems proper. The
amounts distributed by the depositary will be reduced by any amount required to
be withheld by EG&G or the depositary on account of taxes.
REDEMPTION OF DEPOSITARY SHARES
If we redeem the series of preferred stock that underlies the depositary
shares, the depositary will redeem the depositary shares from the proceeds it
receives from the redemption of the preferred stock it holds. The depositary
will redeem the number of depositary shares that represent the amount of
underlying preferred stock that we have redeemed. The redemption price for
depositary shares will be in proportion to the redemption price per share that
we paid for the underlying preferred stock. If we redeem
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less than all of the depositary shares, the depositary will select which
depositary shares to redeem by lot, or some substantially equivalent method.
After a redemption date is fixed, the depositary shares to be redeemed no
longer will be considered outstanding. The rights of the holders of the
depositary shares will cease, except for the rights to receive money or other
property upon redemption. In order to redeem their depositary shares, holders
will surrender their depositary receipts to the depositary. If we deposit funds
with the depositary to redeem depositary shares, and the holders fail to redeem
their depositary receipts, the depositary will return the money to us within two
years from the date on which we deposited the funds.
VOTING THE PREFERRED STOCK
We will notify the depositary about any meeting at which the holders of
preferred stock are entitled to vote, and the depositary will mail the
information to the record holders of depositary shares related to that preferred
stock. Each record holder of depositary shares on the record date will be
entitled to instruct the depositary on how to vote the shares of preferred stock
represented by that holder's depositary shares. The depositary will vote the
preferred stock represented by the depositary shares in accordance with these
instructions, provided the depositary receives these instructions sufficiently
in advance of the meeting. If the depositary does not receive instructions from
the holders of the depositary shares, the depositary will abstain from voting
the preferred stock that underlies those depositary shares.
WITHDRAWAL OF PREFERRED STOCK
When a holder surrenders depositary receipts at the corporate trust office
of the depositary, and pays any necessary taxes, charges or other fees, the
holder will be entitled to receive the number of whole shares of the related
series of preferred stock, and any money or other property, if any, represented
by the holder's depositary shares. Once a holder exchanges depositary shares for
whole shares of preferred stock, that holder cannot "re-deposit" these shares of
preferred stock with the depositary, or exchange them for depositary shares. If
a holder delivers depositary receipts that represent a number of depositary
shares that exceeds the number of whole shares of related preferred stock the
holder seeks to withdraw, the depositary will issue a new depositary receipt to
the holder that evidences the excess number of depositary shares.
AMENDMENT AND TERMINATION OF THE
DEPOSIT AGREEMENT
EG&G and the depositary can agree, at any time, to amend the form of
depositary receipt and any provisions of the deposit agreement. However, if an
amendment has a material adverse effect on the rights of the holders of related
depositary shares, the holders of at least a majority of the depositary shares
then outstanding must first approve the amendment. Every holder of a depositary
receipt at the time an amendment becomes effective will be bound by the amended
deposit agreement. However, subject to any conditions in the deposit agreement
or applicable law, no amendment can impair the right of any holder of a
depositary share to receive shares of the related preferred stock, or any money
or other property represented by the depositary shares, when they surrender
their depositary receipts.
We can terminate the deposit agreement at any time, as long as we provide
at least 60 days' prior written notice to the depositary. If we terminate the
deposit agreement, then within 30 days from the date the depositary receives our
notice, the depositary will deliver whole or fractional shares of the related
preferred stock to the holders of depositary shares, when they surrender their
depositary receipts. The deposit agreement will terminate automatically after
all outstanding depositary shares have been redeemed, or, in connection with any
liquidation, dissolution or winding up of EG&G, after the final distribution of
our assets has been made to the holders of the related series of preferred stock
and, in turn, to the holders of depositary shares.
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CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and the government charges that
relate solely to the depositary arrangements. We will also pay the charges of
each depositary, including charges in connection with the initial deposit of the
related series of preferred stock, the initial issuance of the depositary
shares, and all withdrawals of shares of the related series of preferred stock.
However, holders of depositary shares will be required to pay transfer and other
taxes and government charges, as provided in the deposit agreement.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may resign at any time by delivering written notice of its
decision to us. We may remove the depositary at any time. Any resignation or
removal will take effect when we appoint a successor depositary. We must appoint
the successor depositary within 60 days after delivery of the notice of
resignation or removal. The successor depositary must be a bank or trust
corporation that has its principal office in the United States and has a
combined capital and surplus of at least $50,000,000.
MISCELLANEOUS
We will be required to furnish certain information to the holders of the
preferred stock underlying any depositary shares. The depositary, as the holder
of the underlying preferred stock, will forward any report or information it
receives from us to the holders of depositary shares.
Neither the depositary nor EG&G will be liable if its ability to perform
its obligations under the deposit agreement is prevented or delayed by law or
any circumstance beyond its control. Both EG&G and the depositary will be
obligated to use their best judgment and to act in good faith in performing
their duties under the deposit agreement. Each of EG&G and the depositary will
be liable only for gross negligence and willful misconduct in performing their
duties under the deposit agreement. They will not be obligated to appear in,
prosecute or defend any legal proceeding with respect to any depositary
receipts, depositary shares or preferred stock unless they receive what they, in
their sole discretion, determine to be a satisfactory indemnity from one or more
holders of the depositary shares. EG&G and the depositary will evaluate any
proposed indemnity in order to determine whether the financial protection
afforded by the indemnity is sufficient to reduce each party's risk to a
satisfactory and customary level. EG&G and the depositary may rely on the advice
of legal counsel or accountants of their choice. They may also rely on
information provided by persons they believe, in good faith, to be competent,
and on documents they believe, in good faith, to be genuine.
The applicable prospectus supplement will identify the depositary's
corporate trust office. Unless the prospectus supplement indicates otherwise,
the depositary will act as transfer agent and registrar for depositary receipts,
and if we redeem shares of preferred stock, the depositary will act as
redemption agent for the corresponding depositary receipts.
TITLE
EG&G, each depositary and any agent of EG&G or the applicable depositary
may treat the registered owner of any depositary share as the absolute owner of
the depositary shares for all purposes, including making payment, regardless of
whether any payment in respect of such depositary share is overdue and
regardless of any notice to the contrary. See "Book-Entry Securities" below.
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DESCRIPTION OF DEBT SECURITIES
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of the debt
securities that we may offer under this prospectus and the related trust
indentures. The indentures under which debt securities will be issued contain
additional important terms and provisions and are filed as exhibits to the
registration statement which includes this prospectus.
This summary of the indentures and the debt securities relates to terms and
conditions applicable to the debt securities generally. The particular terms of
any series of debt securities will be summarized in the applicable prospectus
supplement. If indicated in the prospectus supplement, the terms of any series
may differ from the terms summarized below.
GENERAL
Senior debt securities will be issued under a senior indenture to be
entered into by EG&G and The First National Bank of Chicago, as the senior
trustee. Subordinated debt securities will be issued under a subordinated
indenture to be entered into by EG&G and The First National Bank of Chicago, as
the subordinated trustee.
We conduct certain of our operations through our subsidiaries. Our rights
and the rights of our creditors, including holders of debt securities, to the
assets of any subsidiary of ours upon that subsidiary's liquidation or
reorganization or otherwise would be subject to the prior claims of that
subsidiary's creditors, except to the extent that we may be a creditor with
recognized claims against the subsidiary. Our subsidiaries' creditors would
include trade creditors, debt holders, secured creditors and taxing authorities.
Neither the debt securities nor the indentures restrict us or any of our
subsidiaries from incurring indebtedness.
The indentures do not limit the aggregate principal amount of debt
securities we may issue. We may issue debt securities under the indentures from
time to time in one or more series. Unless otherwise specified in a prospectus
supplement:
- debt securities will be unsecured obligations of EG&G;
- senior debt securities will rank equally with all other unsecured and
unsubordinated indebtedness of EG&G; and
- subordinated debt securities will be subordinate, in right of payment, to
all senior debt, which is described below under "-- Subordination of
Subordinated Debt Securities."
EG&G will maintain an office or agency in the City of New York and at such
other locations as it sees fit, which will be responsible for all payments of
principal of, and premium, if any, and interest on, the debt securities and the
registration of all transfers of debt securities.
Unless the applicable prospectus supplement otherwise provides, we will
issue debt securities only in fully registered form without coupons and in
denominations of $1,000 or multiples of that amount. As described under
"Book-Entry Securities" below, the debt securities may be issued in the form of
one or more "book-entry securities" that will be deposited with or on behalf of
a depositary. The depositary must be a clearing agent registered under the
Exchange Act. No service charge will be made for any registration of transfer or
exchange of debt securities, but we may require payment of a sum sufficient to
cover any tax or other governmental charge imposed in connection with the
transfer or exchange.
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The applicable prospectus supplement will describe the following terms of
the debt securities to be offered:
- the title of the debt securities;
- any limit on the aggregate principal amount of the debt securities;
- the person or entity to whom any interest will be payable, if that person
or entity is not the registered owner of the debt securities;
- the date or dates on which the principal of and premium, if any, on the
debt securities is payable or the method of determining such date or
dates;
- the rates, which may be fixed or variable, per annum at which the debt
securities will bear interest, if any, and the date or dates from which
interest, if any, will accrue;
- the dates on which interest, if any, on the debt securities will be
payable, and the regular record dates for interest payment dates or the
method for determining these dates;
- the place or places where the principal of, and premium, if any, and
interest on, the debt securities will be payable;
- any mandatory or optional sinking fund or similar provisions or
provisions for mandatory redemption or redemption at the option of the
holder;
- the period or periods within which or the date, if any, after which and
the price or prices at which the debt securities may, in accordance with
any optional or mandatory redemption provisions, be redeemed and the
other terms of any such redemption provision;
- if other than denominations of $1,000 or any multiple of that amount, the
denominations in which the debt securities will be issuable;
- if other than the full principal amount of the debt securities, the
portion of the principal amount of the debt securities which will be
payable upon the declaration of acceleration of the maturity thereof;
- the currency of payment of principal of, and premium, if any, and
interest on, the debt securities;
- any index, formula or other method used to determine the amount of
payment of principal of, and premium, if any, and interest on, the debt
securities;
- the applicability of the provisions described below under "-- Defeasance
of Debt Securities or Certain Covenants in Certain Circumstances," and
the conditions under which these provisions will apply;
- any additional, modified or different covenants applicable to the debt
securities;
- in the case of the subordinated debt securities, the applicability of the
provisions described below under "-- Conversion or Exchange of Debt
Securities;"
- if the debt securities will be issuable only in the form of a global
security as described below under "Book-Entry Debt Securities," the
depositary or its nominee for the debt securities and the circumstances
under which the global security may be registered for transfer or
exchange in the name of a person other than the depositary or its
nominee;
- any event of default with respect to the debt securities of such series,
in addition to ones set forth in the applicable indenture; and
- any other terms of the debt securities.
The debt securities may be offered and sold at a substantial discount below
their stated principal amount. The applicable prospectus supplement will
describe federal income tax consequences and other special considerations
applicable to any such original issue discount debt securities. "Original issue
discount debt securities" means any debt
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security which provides for an amount less than the principal amount of the debt
security to be due and payable upon the declaration of acceleration of the
maturity of the debt security upon the occurrence of an event of default and the
continuation of such event of default.
We may also offer indexed debt securities under this prospectus. "Indexed
debt securities" are debt securities having a principal amount payable upon
maturity that is more or less than the original principal amount of such debt
securities at the time of issuance.
If the purchase price of any of the debt securities is payable in one or
more foreign currencies or currency units, any debt securities are denominated
in one or more foreign currencies or currency units, or the principal of, and
premium, if any, or interest, if any, on, any debt securities is payable in one
or more foreign currencies or currency units, then the restrictions, elections,
material U.S. federal income tax considerations and other information with
respect to the debt securities and the foreign currency or currency units will
be described in the applicable prospectus supplement.
If any index is used to determine the amount of payments of principal of,
or premium, if any, or interest, if any, on, any series of debt securities, then
the material U.S. Federal income tax, accounting and other considerations
applicable to the use of the index will be described in the applicable
prospectus supplement.
SUBORDINATION OF SUBORDINATED
DEBT SECURITIES
Under the subordinated indenture, the payment of the principal of, premium,
if any, and interest on, and any payments on the repurchase of, subordinated
debt securities will be subordinated in right of payment to all senior debt.
If EG&G pays or distributes its assets to creditors upon a liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshalling of assets or any bankruptcy, insolvency or similar
proceedings, then the holders of all senior debt will first be entitled to
receive payment in full of all amounts due on the senior debt, or provision will
be made for such payment in cash or cash equivalents in a manner satisfactory to
the holders of senior debt, before the holders of subordinated debt securities
will be entitled to receive any such payment.
Holders of subordinated debt may, however, receive stock or securities of
EG&G or another corporation in such a bankruptcy or reorganization of the nature
described above if (a) the issuance of the stock or securities is authorized by
the bankruptcy court and (b) the stock or securities are subordinated in right
of payment to all outstanding senior debt to the same extent as the subordinated
debt held by these holders.
If the maturity of any subordinated debt is accelerated, then the holders
of all senior debt will first be entitled to receive payment in full of all
amounts due on this senior debt, or provision will be made for such payment in
cash or cash equivalents in a manner satisfactory to the holders of senior debt,
before the holders of the subordinated debt securities will be entitled to
receive any such payment.
No payments on account of principal of, premium, if any, or interest on, or
any repurchase in respect of subordinated debt securities may be made if there
is a default in any payment with respect to senior debt, or an event of default
with respect to any senior debt permitting the holders of such senior debt to
accelerate the maturity of the senior debt.
"Senior debt" generally means the principal of, and premium, if any, and
unpaid interest on, all present and future indebtedness and obligations of EG&G,
unless the instrument creating or evidencing the indebtedness or obligation
expressly provides that the indebtedness or obligation is not senior to payment
of subordinated debt securities.
The applicable prospectus supplement may further describe the provisions,
if any, applicable to the subordination of the
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subordinated debt securities of a particular series.
BOOK-ENTRY DEBT SECURITIES
We may issue any series of debt securities in the form of one or more
global securities. We will deposit these global securities with a depositary or
its nominee identified in the applicable prospectus supplement. In this case, we
will issue one or more global securities in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
outstanding debt securities of the series to be represented by the global
security or securities.
With certain exceptions, unless and until a global security is exchanged in
whole or in part for debt securities in definitive registered form, the global
security may not be registered for transfer or exchange, except as a whole by
the depositary for the global security to a nominee of the depositary and except
in the circumstances described in the applicable prospectus supplement.
The applicable prospectus supplement will describe the specific terms of
the depositary arrangement for any portion of a series of debt securities to be
represented by a global security. See the discussion below under "Book-Entry
Securities."
CONVERSION OR EXCHANGE OF
DEBT SECURITIES
The prospectus supplement will set forth the terms, if any, on which a
series of subordinated debt securities may be converted into or exchanged for
other securities of EG&G. These terms will include whether conversion or
exchange is mandatory, or is at our option or the option of the holder. We will
also describe how we will calculate the number of securities that holders of
subordinated debt securities would receive if they were to convert or exchange
their debt securities.
CERTAIN RESTRICTIVE PROVISIONS
LIMITATION ON LIENS
The senior indenture contains a covenant that we will not, and will not
permit any of our restricted subsidiaries to, create, issue, assume, incur or
guarantee any secured funded debt without first insuring that the senior debt
securities will be secured equally and ratably with, or senior to, the secured
funded debt. This covenant will not prevent us or any of our restricted
subsidiaries from creating, issuing, assuming, incurring or guaranteeing:
- secured funded debt that is owed to EG&G or another of our restricted
subsidiaries;
- secured funded debt resulting from a lien, pledge or other encumbrance on
our property or the property of a restricted subsidiary in favor of the
United States, any state, or any related agency to secure partial,
progress, advance or other payments or performance under any contract or
statute;
- secured funded debt that is secured by a lien, pledge or other
encumbrance on property, shares of stock or indebtedness of any entity at
the time that the entity becomes a restricted subsidiary;
- secured funded debt secured by a lien, pledge or other encumbrance on
property existing on the property at the time of the acquisition or lease
of the property by EG&G or a restricted subsidiary, or created or
incurred within 120 days after the date of the acquisition or lease,
including any acquisition through merger or consolidation, of the
property, stock or indebtedness;
- secured funded debt secured by a lien, pledge or other encumbrance
incurred or assumed in connection with the issuance of revenue bonds, the
interest on which is exempt from federal income tax;
- with respect to any series of senior debt securities, any secured funded
debt existing on the date of issuance of the series of senior debt
securities;
- secured funded debt secured by a lien, pledge or other encumbrance on
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property of an entity which exists at the time that the entity is merged
or consolidated with EG&G or a restricted subsidiary, or of the sale,
lease or other disposition of all or substantially all of the properties
of an entity to EG&G or a restricted subsidiary;
- secured funded debt incurred to purchase inventory, equipment or other
property acquired or held by EG&G or a restricted subsidiary that is
secured by a lien, pledge or other encumbrance on the inventory,
equipment or property, or to construct or improve any property of EG&G or
a restricted subsidiary;
- secured funded debt, if immediately after incurrence or issuance of the
secured funded debt, the sum of all (a) outstanding secured funded debt
of EG&G and our restricted subsidiaries incurred as described in this
subparagraph and (b) attributable debt of EG&G and our restricted
subsidiaries in respect of sale and leaseback transactions, does not
exceed 10% of consolidated net tangible assets (the "10% Limit"); and
- any extension, renewal or replacement of any secured funded debt we are
permitted to incur in accordance with the terms described above.
For purposes of this covenant:
- "restricted subsidiaries" means all subsidiaries of EG&G, other than
those subsidiaries that our board of directors designates as
"unrestricted subsidiaries" under the senior indenture, and any
subsidiary, a majority of the voting stock of which is owned by
unrestricted subsidiaries;
- "subsidiary" means any corporation more than 50% of the outstanding
voting stock of which is owned directly or indirectly by EG&G;
- "secured funded debt" means funded debt which is secured by a lien,
pledge or other encumbrance on any assets of EG&G or a restricted
subsidiary;
- "funded debt" means:
(a) indebtedness of EG&G or a restricted subsidiary for borrowed money
maturing more than 12 months after the time of computation of the
indebtedness,
(b) guarantees of indebtedness for borrowed money of any other entity
maturing more than 12 months after the time of computation of the
indebtedness, except certain guarantees arising in the ordinary course of
business, and
(c) indebtedness for borrowed money maturing more than 12 months after
the time of computation of the indebtedness which is secured by a lien,
pledge or other encumbrance on property of EG&G or a restricted
subsidiary, regardless of whether the indebtedness is assumed by EG&G or
its restricted subsidiaries.
Funded debt does not include any amounts relating to obligations under
leases or lease guarantees, including attributable debt, or any accrued
liabilities relating to any pension plan or post retirement medical plan,
regardless of whether any of these obligations would be included as
liabilities on a consolidated balance sheet of EG&G and its restricted
subsidiaries;
- "attributable debt" means, with respect to any sale and leaseback
transaction:
(a) the balance sheet liability amount of any capital lease entered into
in connection with the sale and leaseback transaction determined in
accordance with generally accepted accounting principles, plus
(b) the present value of:
(1) the amount of future minimum lease payments under any operating
leases entered into in connection with the sale and leaseback
transaction required to be disclosed under generally
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accepted accounting principles, less
(2) any amounts required to be paid in respect of maintenance and
repairs, insurance, taxes, assessments, water rates and similar
charges, calculated using a discount rate equal to EG&G's weighted
average cost of funds for borrowed money;
- "consolidated net tangible assets" means the total amount of assets on a
consolidated balance sheet of EG&G and its restricted subsidiaries, less
applicable reserves and other properly deductible items and after
excluding any investments made in unrestricted subsidiaries, and after
deducting:
(a) all liabilities, including all amounts relating to obligations under
leases or lease guarantees, including any attributable debt, which under
generally accepted accounting principles would be included on the
consolidated balance sheet, but not including funded debt, accrued
liabilities relating to any pension plans or post-retirement medical
plans, capital stock and surplus, surplus reserves and provisions for
deferred income taxes, and
(b) goodwill, trade names, trademarks, patents, unamortized debt discount
and expense and other intangible items;
- "sale and leaseback transaction" means any arrangement with any entity
under which EG&G or a restricted subsidiary sells or transfers any
principal property more than 120 days after the acquisition of the
principal property or, if later, the completion of construction and
commencement of full operations of the principal property, to an entity,
and leases from such entity the principal property. Sales and leaseback
transactions do not include transactions of this nature between EG&G and
our restricted subsidiaries or between restricted subsidiaries, or
involving the taking back of a lease for a period of three years or less;
and
- "principal property" means any real property of EG&G or a restricted
subsidiary, and any equipment located at, or which is a part of, any such
real property, which has a net book value in excess of the greater of
$20,000,000 or 5% of consolidated net tangible assets.
RESTRICTIONS ON SALE AND LEASEBACK TRANSACTIONS
The senior indenture contains a covenant that we will not, and will not
permit our restricted subsidiaries, to enter into any sale and leaseback
transaction involving any principal property, unless:
- EG&G or a restricted subsidiary could create secured funded debt on the
property without exceeding the 10% Limit, in a principal amount at least
equal to the attributable debt relating to the sale and leaseback
transaction that is secured by liens, pledges or other encumbrances on
the property to be leased, without equally and ratably securing the
outstanding senior debt securities;
- EG&G, within 120 days after the effective date of the sale and leaseback
transaction, applies an amount equal to the value of the sale and
leaseback transaction to either (a) the retirement of its secured funded
debt or (b) the purchase of other property which is principal property
having a fair value, as determined by EG&G, at least equal to the value
of such sale and leaseback transaction; or
- EG&G or a restricted subsidiary delivers to the trustee for cancellation
senior debt securities or funded debt in an aggregate principal amount at
least equal to the value of the sale and leaseback transaction.
For purposes of this covenant "value" means the greater of (a) the net
proceeds from the sale of the principal property leased in connection with the
sale and leaseback transaction or (b) the fair value, as
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determined by EG&G, of the principal property at the time of the sale and
leaseback transaction.
EVENTS OF DEFAULT
Any one of these events will constitute an "event of default" under the
indentures with respect to debt securities of any series:
- failure to pay principal of or any premium on any debt security of that
series when due;
- failure to pay any interest on any debt security of that series when due,
continued for 30 days;
- failure to deposit any sinking fund payment, when due, in respect of any
debt security of that series;
- failure to perform or breach of any other covenants or warranties of EG&G
in the applicable indenture continued for 90 days after written notice as
provided in the indenture;
- a default under any indebtedness for money borrowed by EG&G or any of its
subsidiaries if:
(a) the default either:
(1) results from the failure to pay the principal of any of the
indebtedness at its stated maturity or
(2) relates to an obligation other than the obligation to pay the
principal of the indebtedness at its stated maturity, and results in
the indebtedness becoming due and payable prior to the date on which
it would otherwise become due and payable;
(b) the principal amount of the indebtedness, together with the principal
amount of any other indebtedness in default for failure to pay principal
at its stated maturity or the maturity of which has been accelerated,
equals a total outstanding amount of $25,000,000 or more at any one time;
and
(c) the indebtedness is not discharged, or the acceleration is not
rescinded, within 30 days after written notice as provided in the
applicable Indenture;
- events of bankruptcy, insolvency or reorganization of EG&G; and
- any other event of default provided with respect to debt securities of
that series.
If any event of default with respect to the debt securities of any series
at the time outstanding occurs and is continuing, either the trustee or the
holders of at least 25% in aggregate principal amount of the outstanding debt
securities of that series may, by written notice to EG&G, declare the principal
amount or, if the debt securities of that series are original issue discount
debt securities or indexed debt securities, a specified portion of the principal
amount of all the debt securities of that series to be due and payable
immediately. At any time after a declaration of acceleration has been made, but
before a judgment or decree based on acceleration has been obtained, the holders
of a majority in aggregate principal amount of outstanding debt securities of
the series may, under the circumstances described in the indenture, rescind the
acceleration.
The applicable prospectus supplement relating to any series of debt
securities that are original issue discount debt securities or indexed debt
securities will describe the particular provisions relating to acceleration of
the stated maturity of a portion of the principal amount of this type of series
of debt securities upon the occurrence of an event of default and the
continuation of such event of default.
Each indenture provides that, subject to the duty of the trustee under the
indenture during default to act with the required standard of care, the trustee
will be under no obligation to exercise any of its rights or powers under the
applicable indenture at the request or direction of any of the holders of debt
securities, unless the holders have offered to the trustee reasonable indemnity.
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Subject to these provisions for the indemnification of the trustee and to other
conditions described in the indentures, the holders of a majority in aggregate
principal amount of the outstanding debt securities of any series will have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the trustee, or exercising any trust or power conferred on
the trustee, with respect to the debt securities of that series.
No holder of any series of outstanding debt securities will have any right
to institute any proceeding with respect to the applicable indenture or for any
remedy under the applicable indenture, unless:
- the holder has previously given to the trustee written notice of a
continuing event of default with respect to debt securities of that
series;
- the holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the series have made written request to
the trustee to institute the proceeding;
- such holder or holders have offered reasonable indemnity to the trustee
in connection with the request to institute a proceeding;
- the trustee has failed to institute the proceeding within 60 days after
receipt of the notice of a continuing event of default, request to
institute a proceeding and offer of indemnity; and
- the trustee has not received from the holders of a majority in aggregate
principal amount of the outstanding debt securities of the series before
the end of this 60-day period a direction inconsistent with the request
to institute a proceeding.
However, these limitations do not apply to a suit instituted by a holder of a
debt security for enforcement of payment of the principal of, or premium, if
any, or interest on, a debt security on or after the respective due dates
expressed in the debt security.
We will be required to furnish to the trustee annually a statement as to
our performance of certain of our obligations under the indentures and as to any
default in our performance.
MODIFICATION AND WAIVER
EG&G and the respective trustees may make modifications and amendments to
the Indentures without the consent of the holders of any of the debt securities
in order to:
- evidence the succession of another entity to EG&G and the assumption of
the covenants and obligations of EG&G under the debt securities and the
indentures by the successor;
- add to the covenants of EG&G for the benefit of the holders of all or any
series of debt securities, or surrender any of EG&G's rights or powers
under the indentures;
- add additional events of default with respect to any series of debt
securities;
- add to or change any provisions to the extent that may be necessary to
permit or facilitate the issuance of debt securities in bearer form or to
facilitate the issuance of book-entry securities;
- add to, change or eliminate any provision affecting only debt securities
not yet issued;
- secure the debt securities;
- establish the form or terms of debt securities of any series;
- evidence and provide for successor trustees or add or change any
provisions as may be necessary to provide for or facilitate the
appointment of a separate trustee or trustees for specific series of debt
securities;
- permit payment in respect of debt securities in bearer form or coupons in
the United States to the extent allowed by law; and
- cure any ambiguity, correct or supplement any mistaken or inconsistent
provisions, or make any other provisions with respect to matters or
questions arising under the indentures, as long as the action does
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not materially and adversely affect any holder of debt securities then
outstanding under the applicable indenture.
EG&G and the trustee may modify and amend each indenture with the consent
of the holders of not less than a majority in aggregate principal amount of the
outstanding debt securities of each series issued under the applicable indenture
that are adversely affected by the modification or amendments. However, without
the consent of the holders of all debt securities affected by a modification or
amendment, EG&G and the trustee may not modify or amend an indenture to:
- change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security;
- reduce the principal amount of, or the premium, if any, or interest on,
any debt security, including in the case of an original issue discount
debt security the amount payable upon acceleration of the maturity of the
original issue discount debt security;
- change the place or currency of payment of principal of, or premium, if
any, or interest on, any debt security;
- impair the right to institute suit for the enforcement of any payment on
any debt security on or at the stated maturity of such debt security, or
in the case of redemption, on or after the redemption date therefor;
- adversely affect any right of the holders to require EG&G to repurchase
debt securities;
- in the case of subordinated debt securities, adversely affect any right
to convert such debt securities or modify the subordination provisions in
a manner adverse to the holders of the debt securities in any material
respect;
- reduce the percentage in principal amount of outstanding debt securities
of any series, the consent of whose holders is required for modification
or amendment of the applicable indenture or for any waiver provided for
in the applicable indenture; or
- modify the provision of the applicable indenture requiring unanimous
consent of the holders of debt securities under the circumstances
described above, or modify the percentage vote required to consent to
waivers of past defaults and restrictive covenants, unless the percentage
required under the applicable indenture is increased.
With respect to the senior indenture, the holders of at least a majority in
aggregate principal amount of the outstanding debt securities of any series may,
on behalf of all holders of that series, waive compliance by EG&G with
restrictive provisions concerning:
- consolidations, mergers and sales of assets;
- limitations on liens;
- limitations on sale and leasebacks; and
- limitations on designation of unrestricted subsidiaries as restricted
subsidiaries.
With respect to the subordinated indenture, the holders of at least a
majority in aggregate principal amount of the outstanding debt securities of any
series may, on behalf of all holders of that series, waive compliance by EG&G
with restrictive provisions concerning consolidations, mergers and sales of
assets.
The holders of a majority in aggregate principal amount of the outstanding
debt securities of any series may, on behalf of all holders of that series,
waive any past default under the applicable indenture, except a default in the
payment of principal, premium or interest and in respect of a covenant or
provision of the applicable indenture that cannot be modified or amended without
the consent of the holder of each outstanding debt security of the series
affected thereby.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We may not consolidate with or merge into any other entity or transfer all
or
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substantially all of our properties and assets to any other entity, unless:
- we are the surviving entity in the transaction, or the surviving
corporation or purchaser of our properties and assets is a corporation,
partnership or trust organized under the laws of any domestic
jurisdiction, and the successor or purchaser expressly assumes all of our
obligations and covenants under the indentures and the debt securities;
- after giving effect to the transaction, no event of default, and no event
which, after notice or lapse of time, would become an event of default,
will have occurred and be continuing; and
- in the case of senior debt securities only and except in the case of a
merger or consolidation of EG&G and a restricted subsidiary, either (a)
the holders of a majority in aggregate principal amount of the
outstanding debt securities of each series have consented to the
transaction or (b) immediately after consummation of the transaction,
EG&G or the successor entity would be permitted to incur at least $1.00
of secured funded debt, without exceeding the 10% Limit.
DEFEASANCE OF DEBT SECURITIES OR CERTAIN
COVENANTS IN CERTAIN CIRCUMSTANCES
DEFEASANCE AND DISCHARGE
Each indenture provides that EG&G, at its option:
- will be discharged from any and all obligations in respect of the debt
securities of any series, except for certain obligations to register the
transfer or exchange of debt securities of the series, replace stolen,
lost or mutilated debt securities of the series, maintain paying agencies
and hold moneys for payment in trust, and
- need not comply with certain restrictive covenants of the indenture,
in each case if we deposit in trust with the trustee money and/or U.S.
government obligations which, through the payment of interest on, and principal
of, such money or obligations in accordance with their terms, will provide money
in an amount sufficient to pay all the principal of, and premium, if any, and
interest on, the debt securities of the series on the dates these payments are
due, which may include one or more redemption dates that we may designate, in
accordance with the terms of the applicable indenture and the debt securities of
such series.
We may only establish this kind of trust if, among other things:
- no event of default or event which with the giving of notice or lapse of
time, or both, would become an event of default under the applicable
Indenture will have occurred and be continuing on the date of the
deposit;
- the deposit will not cause the trustee to have any conflicting interest
with respect to other securities of EG&G; and
- we have delivered an opinion of counsel to the effect that the holders of
the debt securities of the series will not recognize income, gain or loss
for federal income tax purposes as a result of the deposit or defeasance
and will be subject to federal income tax in the same manner as if the
defeasance had not occurred.
DEFEASANCE OF CERTAIN COVENANTS APPLICABLE TO THE SENIOR DEBT SECURITIES
The senior indenture provides that the terms of any series of senior debt
securities may provide EG&G with the option to be released from the restrictive
covenants described under "-- Certain Restrictive Provisions." Both the senior
and subordinated indentures provide that the terms of any series of debt
securities may provide EG&G with the option to be released from the restrictive
covenant described under "-- Consolidation, Merger and Sale of Assets."
In order to exercise these options, we will be required to deposit with the
trustee money and/or U.S. government obligations. This money, together with the
payment of interest
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on and principal of such U.S. government obligations, must provide sufficient
money to pay principal of, premium, if any, and interest on, and any mandatory
sinking fund payments in respect of, the debt securities of the series on the
stated maturity of such payments in accordance with the terms of the applicable
indenture and the debt securities. We will also be required to deliver to the
applicable trustee an opinion of counsel to the effect that the deposit and
related covenant defeasance will not cause the holders of the debt securities of
the series to recognize income, gain or loss for federal income tax purposes.
In the event EG&G exercises one of these options and the debt securities
are declared due and payable because of the occurrence of any event of default,
the amount of money and U.S. government obligations on deposit with the
applicable trustee will be sufficient to pay amounts due on the debt securities
of the affected series at the time of their stated maturity, but may not be
sufficient to pay amounts due on the debt securities of this series at the time
of the acceleration resulting from the event of default. However, we will remain
liable for these payments.
The applicable prospectus supplement will state if any defeasance
provisions will apply to the offered debt securities.
TRUSTEES
The First National Bank of Chicago is the trustee under each of the
indentures. The trustee may resign or be removed with respect to one or more
series of debt securities under the applicable indenture and the successor
trustee may be appointed to act with respect to such series. In the event that
two or more persons are acting as trustee with respect to different series of
debt securities, each trustee will be a trustee of a trust under the related
indenture separate and apart from the trust administered by any other trustee.
If this occurs, any action described in this prospectus to be taken by the
"trustee" may then be taken by each trustee only with respect to the one or more
series of securities for which it is trustee.
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DESCRIPTION OF WARRANTS
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of the warrants
that we may offer under this prospectus and the related warrant agreements and
warrant certificates. Specific warrant agreements will contain additional
important terms and provisions and will be incorporated by reference as an
exhibit to the registration statement which includes this prospectus.
This summary of the warrant agreements, the warrants and the warrant
certificates relates to terms and conditions applicable to the warrants
generally. The particular terms of any series of warrants will be summarized in
the applicable prospectus supplement. If indicated in the prospectus supplement,
the terms of any series may differ from the terms summarized below.
GENERAL
We may issue warrants for the purchase of common stock, preferred stock,
depositary shares and/or debt securities in one or more series. We may issue
warrants independently or together with common stock, preferred stock,
depositary shares and/or debt securities, and they may be attached to or
separate from these securities.
Each series of warrants will be evidenced by warrant certificates issued
under a separate agreement. EG&G will enter into the warrant agreement with a
warrant agent. Each warrant agent will be a bank that we select which has its
principal office in the United States and a combined capital and surplus of at
least $50,000,000. The applicable prospectus supplement relating to a particular
series of warrants will indicate the name and address of the warrant agent.
The applicable prospectus supplement will describe the terms of the series
of warrants, including:
- the offering price;
- the currency for which the warrants may be purchased;
- if applicable, the designation and terms of the securities with which the
warrants are issued and the number of warrants issued with each such
security or each principal amount of such security;
- if applicable, the date on and after which the warrants and the related
securities will be separately transferable;
- in the case of warrants to purchase debt securities, the principal amount
of debt securities purchasable upon exercise of one warrant and the price
at, and currency in which, this principal amount of debt securities may
be purchased upon such exercise;
- in the case of warrants to purchase common stock, preferred stock or
depositary shares, the number of shares of common stock or preferred
stock or depositary shares, as the case may be, purchasable upon the
exercise of one warrant and the price at which these shares may be
purchased upon such exercise;
- the dates on which the right to exercise the warrants will commence and
expire;
- certain federal income tax consequences of holding or exercising the
warrants;
- the terms of the securities issuable upon exercise of the warrants; and
- any other terms of the warrants.
Warrant certificates may be exchanged for new warrant certificates of
different denominations, presented for registration of transfer, and exercised
at the corporate trust office of the warrant agent or any other office indicated
in the applicable prospectus supplement. If the warrants are not separately
transferrable from the securities with which they were issued, such exchange may
take place only in connection with an exchange of
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the certificates representing the related securities.
Before exercising their warrants, holders of warrants will not have any of
the rights of holders of the securities purchasable upon such exercise,
including:
- in the case of warrants to purchase debt securities, the right to receive
payments of principal of, or premium, if any, or interest on, the debt
securities purchasable upon exercise or to enforce covenants in the
applicable indenture; or
- in the case of warrants to purchase common stock, preferred stock or
depositary shares, the right to receive dividends, if any, or payments
upon the liquidation, dissolution or winding up of EG&G or to exercise
voting rights, if any.
EXERCISE OF WARRANTS
Each warrant will entitle the holder to purchase the securities specified
in the applicable prospectus supplement at the exercise price described in the
applicable prospectus supplement. Unless otherwise specified in the applicable
prospectus supplement, warrants may be exercised at any time up to 5:00 P.M. New
York time on the expiration date set forth in the applicable prospectus
supplement. After the close of business on the expiration date, unexercised
warrants will become void.
Warrants may be exercised by delivery of the warrant certificate
representing the warrants to be exercised together with certain information, and
payment to the warrant agent in immediately available funds, as provided in the
applicable prospectus supplement, of the required amount. The information
required to be delivered to the warrant agent will be set forth on the reverse
side of the warrant certificate and in the applicable prospectus supplement.
Upon receipt of the required payment and the warrant certificate properly
completed and duly executed at the corporate trust office of the warrant agent
or any other office indicated in the applicable prospectus supplement, we will
issue and deliver the securities purchasable upon such exercise. If fewer than
all of the warrants represented by the warrant certificate are exercised, a new
warrant certificate will be issued for the remaining amount of warrants. If so
indicated in the applicable prospectus supplement, securities may be surrendered
as all or part of the exercise price for warrants.
ANTIDILUTION PROVISIONS
In the case of warrants to purchase common stock, the exercise price
payable and the number of shares of common stock purchasable upon the exercise
of each warrant will be subject to adjustment in certain events. No fractional
shares will be issued upon exercise of warrants, but we will pay cash value of
any fractional shares otherwise issuable.
MODIFICATION
Any warrant agreement and the terms of the related warrants may be amended
by EG&G and the applicable warrant agent by executing a supplemental warrant
agreement, without the consent of the holders of any such warrants, for the
following purposes:
- curing any ambiguity, or correcting any defective or inconsistent
provision contained therein, or making any other provisions with respect
to matters or questions arising under the warrant agreement that is not
inconsistent with the provisions of the warrant agreement or the warrant
certificates;
- evidencing the assumption by any successor to EG&G of the covenants of
EG&G contained in the warrant agreement and the warrants;
- appointing a successor warrant agent;
- evidencing the appointment of a successor warrant agent;
- adding to the covenants of EG&G for the benefit of the holders of the
warrants or surrendering any right or power conferred upon EG&G under the
warrant agreement;
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- issuing warrants in definitive form, if the warrants are initially issued
in the form of global securities; or
- amending the warrant agreement and the warrants in any manner that we may
deem to be necessary or desirable and that will not adversely affect the
interests of the holders of the warrants in any material respect.
EG&G and the warrant agent may also amend any warrant agreement and the
terms of the related warrants by executing a supplemental warrant agreement with
the consent of the holders of not less than a majority in number of the
unexercised warrants affected by the amendment, except that without the consent
of the affected holder, no such amendment may:
- change the number or amount of securities purchasable upon exercise of
the warrants so as to reduce the number or amount of securities
purchasable upon such exercise;
- shorten the period of time during which the warrants may be exercised;
- otherwise adversely affect the exercise rights of the holders of the
warrants in any material respect; or
- reduce the number of unexercised warrants the consent of holders of which
is required for amendment of the warrant agreement or the related
warrants.
CONSOLIDATION, MERGER AND SALE
OF ASSETS
Each warrant agreement will provide that we may consolidate or merge with
or into any other corporation or sell, lease or transfer all or substantially
all of our assets to any other corporation, provided that:
- we are the continuing corporation, or the corporation, if other than
EG&G, that is formed by or results from any such consolidation or merger
or receives such assets
(a) is a corporation organized under the laws of the United States of
America or a U.S. state and
(b) assumes all of the obligations of EG&G with respect to all the
unexercised warrants and the applicable warrant agreements; and
- EG&G or the successor corporation, as the case may be, is not immediately
in default under such warrant agreement.
ENFORCEABILITY OF RIGHTS BY HOLDERS
OF WARRANTS
Each warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or relationship of agency
or trust with any holder of any warrant. A single bank or trust company may act
as warrant agent for more than one issue of warrants. A warrant agent will have
no duty or responsibility in case of any default by EG&G under the applicable
warrant agreement or warrant including, without limitation, any duty or
responsibility to initiate any proceedings at law or otherwise, or to make any
demand upon EG&G. Any holder of a warrant may, without the consent of the
related warrant agent or the holder of any other warrant, enforce by appropriate
legal action its right to exercise, and receive the securities purchasable upon
exercise of, its warrants.
RESIGNATION AND APPOINTMENT
OF WARRANT AGENT
We will provide a warrant agent until all the warrants issued have been
exercised or expired in accordance with their terms. The warrant agent may
resign at any time by giving notice to us, and we may at any time remove a
warrant agent. Any such resignation or removal will take effect upon the
appointment of a successor warrant agent. The warrant agent and any successor
warrant agent will be a bank or trust company having its office or agent's
office in the United States and having a combined capital and surplus of at
least $50,000,000.
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<PAGE> 35
TITLE
EG&G, the warrant agents and any agent of EG&G or the applicable warrant
agent may treat the registered holder of any warrant certificate as the absolute
owner of the warrants for any purpose and as the person entitled to exercise the
rights attaching to the warrants, in each case regardless of any notice to the
contrary.
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<PAGE> 36
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
The following description, together with the applicable prospectus
supplements, summarizes all the material terms and provisions of the stock
purchase contracts and stock purchase units that we may offer pursuant to this
prospectus. Specific forms of the stock purchase contracts and stock purchase
units and any related collateral arrangements, depositary arrangements, prepaid
securities and the documents under which these securities are issued, contain
additional important terms and provisions and will be incorporated by reference
into the registration statement which includes this prospectus before we issue
any stock purchase contracts.
We may issue stock purchase contracts that obligate the holders to purchase
from EG&G, and EG&G to sell to the holders, a specified number of shares of
common stock, preferred stock or depositary shares at a future date.
The price per share of common stock, preferred stock or depositary shares
may be fixed at the time the stock purchase contracts are issued or may be
determined by a specific formula set forth in the stock purchase contracts. The
stock purchase contracts may be issued separately or as a part of stock purchase
units consisting of a stock purchase contract and either debt securities or debt
obligations of third parties, including U.S. Treasury securities, in each case
securing the holder's obligations to purchase the common stock, preferred stock
or depositary shares under the stock purchase contracts.
The stock purchase contracts may require us to make periodic payments to
the holders of the stock purchase units or vice versa, and these payments may be
unsecured or prefunded on some basis. The stock purchase contracts may require
holders to secure their obligations under the stock purchase contracts in a
specified manner. In certain circumstances we may deliver newly issued prepaid
stock purchase contracts upon release to a holder of any collateral securing the
holder's obligations under the original stock purchase contract.
BOOK-ENTRY SECURITIES
Unless otherwise specified in the applicable prospectus supplement, we will
issue securities, other than common stock, in the form of one or more book-entry
certificates registered in the name of a depositary or a nominee of a
depositary. Unless otherwise specified in the applicable prospectus supplement,
the depositary will be The Depository Trust Company. We have been informed by
DTC that its nominee will be Cede & Co. Accordingly, Cede is expected to be the
initial registered holder of all securities that are issued in book-entry form.
No person that acquires a beneficial interest in securities issued in
book-entry form will be entitled to receive a certificate representing those
securities, except as set forth in this prospectus or in the applicable
prospectus supplement. Unless and until definitive securities are issued under
the limited circumstances described below, all references to actions by
beneficial owners of securities issued in book-entry form will refer to actions
taken by DTC upon instructions from its participants, and all references to
payments and notices to beneficial owners will refer to payments and notices to
DTC or Cede, as the registered holder of such securities.
DTC has informed us that it is:
- a limited purpose trust company organized under New York banking laws;
- a "banking organization" within the meaning of the New York banking laws;
- a member of the Federal Reserve System; and
- a "clearing agency" registered under the Exchange Act.
DTC has also informed us that it was created to:
- hold securities for its participating clients, or "participants"; and
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<PAGE> 37
- facilitate the clearance and settlement of securities transactions among
participants through electronic book-entry, thereby eliminating the need
for the physical movement of securities certificates.
Participants include securities brokers and dealers, banks, trust companies
and clearing corporations. Indirect access to the DTC system also is available
to other indirect participants such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
participant, either directly or indirectly.
Persons that are not participants or indirect participants but desire to
buy, sell or otherwise transfer ownership of or interests in securities may do
so only through participants and indirect participants. Under the book-entry
system, beneficial owners may experience some delay in receiving payments, as
payments will be forwarded by our agent to Cede, as nominee for DTC. DTC will
forward these payments to its participants, which thereafter will forward them
to indirect participants or beneficial owners. Beneficial owners will not be
recognized by the applicable registrar, transfer agent, trustee, depositary or
warrant agent as registered holders of the securities entitled to the benefits
of the certificate or the applicable indenture, deposit agreement, warrant
agreement, stock purchase contract or stock purchase unit. Beneficial owners
that are not participants will be permitted to exercise their rights as an owner
only indirectly through participants and, if applicable, indirect participants.
Under the current rules and regulations affecting DTC, DTC will be required
to make book-entry transfers of securities among participants and to receive and
transmit payments to participants. Participants and indirect participants with
which beneficial owners of securities have accounts are also required by these
rules to make book-entry transfers and receive and transmit such payments on
behalf of their respective account holders.
Because DTC can act only on behalf of participants, who in turn act only on
behalf of other participants or indirect participants, and on behalf of certain
banks, trust companies and other persons approved by it, the ability of a
beneficial owner of securities issued in book-entry form to pledge those
securities to persons or entities that do not participate in the DTC system may
be limited due to the unavailability of physical certificates for the
securities.
DTC has advised us that it will take any action permitted to be taken by a
registered holder of any securities under the certificate or the applicable
indenture, deposit agreement, warrant agreement, stock purchase contract or
stock purchase unit only at the direction of one or more participants to whose
accounts with DTC the securities are credited.
Unless otherwise specified in the applicable prospectus supplement, a book-
entry security will be exchangeable for definitive securities registered in the
names of persons other than DTC or its nominee only if:
- DTC notifies us that it is unwilling or unable to continue as depositary
for the book-entry security or DTC ceases to be a clearing agency
registered under the Exchange Act at a time when DTC is required to be so
registered;
- we execute and deliver to the applicable registrar, transfer agent,
trustee, depositary and/or warrant agent an order complying with the
requirements of the certificate or the applicable indenture, deposit
agreement, warrant agreement, stock purchase contract and/or stock
purchase unit that the book-entry security will be so exchangeable; or
- there is a default in the payment of any amount due in respect of the
securities or, in the case of debt securities, an event of default with
respect to the debt securities.
Any book-entry security that is exchangeable in accordance with the preceding
sentence will be exchangeable for securities registered in such names as DTC
directs.
If one of the events described in the immediately preceding paragraph
occurs,
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<PAGE> 38
DTC is generally required to notify all participants of the availability through
DTC of definitive securities. Upon surrender by DTC of the book-entry security
representing the securities and delivery of instructions for re-registration,
the registrar, transfer agent, trustee, depositary or warrant agent, as the case
may be, will reissue the securities as definitive securities. After reissuance
of the securities, such persons will recognize the beneficial owners of such
definitive securities as registered holders of securities.
Except as described above:
- a book-entry security may not be transferred except as a whole book-
entry security by or among DTC, a nominee of DTC and/or a successor
depositary appointed by us; and
- DTC may not sell, assign or otherwise transfer any beneficial interest in
a book-entry security unless the beneficial interest is in an amount
equal to an authorized denomination for the securities evidenced by the
book-entry security.
None of EG&G, the trustees, any registrar and transfer agent, any warrant
agent or any depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTC's or any participant's records
relating to, or for payments made on account of, beneficial interests in a
book-entry security.
PLAN OF DISTRIBUTION
We may sell the securities through agents, underwriters or dealers, or
directly to one or more purchasers. Goldman, Sachs & Co. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated may be among these agents or underwriters.
In the ordinary course of their businesses, Goldman, Sachs & Co. and Merrill
Lynch, Pierce, Fenner & Smith Incorporated and their respective affiliates have
engaged, and may in the future engage, in commercial banking and/or investment
banking transactions with EG&G or its affiliates.
AGENTS
We may designate agents who agree to use their reasonable efforts to
solicit purchases for the period of their appointment or to sell securities on a
continuing basis.
UNDERWRITERS
If we use underwriters for a sale of securities, the underwriters will
acquire the securities for their own account. The underwriters may resell the
securities in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the securities will be subject
to the conditions set forth in the applicable underwriting agreement. The
underwriters will be obligated to purchase all the securities of the series
offered if any of the securities of that series are purchased. Any initial
public offering price and any discounts or concessions allowed or re-allowed or
paid to dealers may be changed from time to time.
DIRECT SALES
We may also sell securities directly to one or more purchasers without
using underwriters or agents.
Underwriters, dealers and agents that participate in the distribution of
the securities may be underwriters as defined in the Securities Act and any
discounts or commissions they receive from us and any profit on their resale of
the securities may be treated as underwriting discounts and commissions under
the Securities Act. The applicable prospectus supplement will identify any
underwriters, dealers or agents and will describe their compensation. We may
have agreements with the underwriters, dealers and agents to indemnify them
against certain civil liabilities, including liabilities under the Securities
Act. Underwriters, dealers and agents may engage in transactions with or
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perform services for us or our subsidiaries in the ordinary course of their
businesses.
TRADING MARKETS AND LISTING OF SECURITIES
Unless otherwise specified in the applicable prospectus supplement, each
class or series of securities will be a new issue with no established trading
market, other than the common stock, which is listed on the NYSE. We may elect
to list any other class or series of securities on any exchange, but we are not
obligated to do so. It is possible that one or more underwriters may make a
market in a class or series of securities, but the underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. We cannot give any assurance as to the liquidity of the trading market
for any of the securities.
STABILIZATION ACTIVITIES
Any underwriter may engage in over-allotment, stabilizing transactions,
short covering transactions and penalty bids in accordance with Regulation M
under the Exchange Act. Over-allotment involves sales in excess of the offering
size, which create a short position. Stabilizing transactions permit bids to
purchase the underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of the
securities in the open market after the distribution is completed to cover short
positions. Penalty bids permit the underwriters to reclaim a selling concession
from a dealer when the securities originally sold by the dealer are purchased in
a covering transaction to cover short positions. Those activities may cause the
price of the securities to be higher than it would otherwise be. If commenced,
the underwriters may discontinue any of the activities at any time.
VALIDITY OF SECURITIES
The legality of the securities will be passed upon for EG&G by Murray
Gross, Esq., Senior Vice President, General Counsel and Clerk of EG&G. In
addition, other customary legal matters relating to the offering of the
securities, including matters relating to our due incorporation, legal existence
and authorized capitalization, will be passed upon for EG&G by Mr. Gross or Hale
and Dorr LLP, Boston, Massachusetts. As of March 5, 1999, Murray Gross, Esq.
beneficially owned 177,244 shares (including options to purchase 144,400 shares)
of common stock of EG&G.
EXPERTS
The consolidated financial statements of EG&G and the related financial
statement schedules, as of January 3, 1999 and December 28, 1997, and for each
of the fiscal years in the three year period ended January 3, 1999, appearing in
EG&G's Annual Report on Form 10-K for the year ended January 3, 1999 and the
consolidated financial statements of ILC Technology, Inc. as of September 27,
1997 and for the fiscal year then ended, included in EG&G's Forms 8-K/A filed on
February 26, 1999, March 10, 1999 and March 30, 1999, both of which are
incorporated herein by reference, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated herein by reference in reliance upon the authority
of said firm as experts in giving said reports.
The consolidated financial statements of Lumen Technologies, Inc. (formerly
BEC Group, Inc.) as of December 31, 1997 and for the fiscal year then ended are
incorporated in this prospectus by reference to EG&G's Forms 8-K/A filed on
February 26, 1999, March 10, 1999 and March 30, 1999, and have been so
incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION*
<TABLE>
<S> <C>
SEC registration fee........................................ $129,270
Accountants' fees and expenses.............................. 90,000
Attorneys' fees and expenses................................ 150,000
Printing and engraving expenses............................. 65,000
Fees and expenses of trustee................................ 5,000
Rating agencies' fees....................................... 40,000
Miscellaneous............................................... 50,730
--------
Total.................................................. $530,000
========
</TABLE>
- ---------------
* All fees and expenses other than the SEC registration fee are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 67, Chapter 156B of the General Laws of the Commonwealth of
Massachusetts, as amended (the "Massachusetts Business Corporation Law"), and
Article V, Section 9 of the Registrant's Bylaws, to which reference is hereby
made, contain provisions authorizing indemnification by the Registrant of
directors, officers, employees or agents against certain liabilities and
expenses, which they may incur as directors, officers, employees or agents of
the Registrant or of certain other entities. Section 67, Chapter 156B of the
Massachusetts Business Corporation Law provides that the indemnification of
directors, officers, employees and agents of a corporation and persons who serve
at the corporation's request as directors, officers, employees and other agents
of another organization may be provided to whatever extent as shall be specified
by (i) the articles of organization of the corporation or (ii) a bylaw adopted
by the stockholder or (iii) a vote adopted by the holders of a majority of the
shares of stock entitled to vote on the election of directors. Unless otherwise
provided in the articles of organization or the bylaws, the indemnification of
any persons described above who are not directors of the corporation may be
provided by the corporation to the extent authorized by the directors. Such
indemnification may include payment by the corporation of expenses incurred in
defending a civil or criminal action or proceeding prior to the final
disposition of such action or proceeding, upon receipt of an undertaking by the
indemnified person to repay such payment if he shall be adjudicated to be not
entitled to indemnification under Section 67, Chapter 156B of the Massachusetts
Business Corporation Law. Any indemnification may be provided although the
person to be indemnified is no longer an officer, director, employee or agent of
the corporation or of such other organization. Indemnification may not be
provided for any person with respect to any matter as to which that person shall
have been adjudicated in any proceeding to not have acted in good faith in the
reasonable belief that his action was in the best interest of the corporation.
Section 65, Chapter 156B of the Massachusetts Business Corporation Law
provides a limitation on the imposition of liability under other sections of the
Massachusetts Business Corporation Law. Under this Section, a director, officer
or incorporator of a corporation is to perform his duties in good faith and in a
manner he reasonably believes to be in the best interests of the corporation and
with such care as an ordinarily prudent person in a like position would use
under similar circumstances. Such director, officer or incorporator is entitled
to rely on information, opinions, reports or records, including financial
statements, books of accounts and
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other financial records, which are prepared by or presented by or under the
supervision of (i) one or more officers or employees of the corporation whom the
director, officer or incorporator reasonably believes to be reliable and
competent in the matters presented, or (ii) counsel, public accountants or other
persons as to matters that the director, officer or incorporator reasonably
believes to be within such a person's professional expert competence, or (iii)
in the case of a director, a duly constituted committee of the Board of
Directors upon which he does not serve, as to matters within its delegated
authority, which committee the director reasonably believes to merit confidence.
If a director, officer or incorporator performs his duties in the manner that is
set forth above, that fact shall be an absolute defense to any claim asserted
against him except as expressly provided by statute.
Section 13, Chapter 156B of the Massachusetts Business Corporation Law
provides that the articles of organization of a corporation may contain a
provision eliminating or limiting the personal liability of a director to the
corporation or its stockholders for monetary damages for breach of a fiduciary
duty as a director notwithstanding any provision of law imposing such liability;
provided, however, that such provision shall not eliminate or limit the
liability of a director (i) for any breach of the director's duty of loyalty to
the corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under Sections 61 or 62, Chapter 156B of the Massachusetts Business
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit. Article Six of the Restated Articles of Organization
of the Registrant contains a provision consistent with Section 13, Chapter 156B
of the Massachusetts Business Corporation Law and provides that to the fullest
extent permitted by the Massachusetts Business Corporation Law, a director of
the Registrant shall not be personally liable to the Registrant or its
stockholder for monetary damages for breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability.
Section 9 of Article V of the Bylaws of the Registrant contains provisions
relating to the indemnification of directors and officers of the Registrant,
which are consistent with Section 67, Chapter 156B of the Massachusetts Business
Corporation Law. This Section provides that no indemnification will be provided
to any person who was or is a director or officer with respect to any matter as
to which such person shall have been finally adjudicated in any proceeding not
to have acted in good faith in the reasonable belief that his action was in the
best interest of the corporation; nor shall indemnification be provided where
the corporation is required or has undertaken to submit to a court the question
of whether or not indemnification by it is against public policy and it has been
finally determined that such indemnification is against public policy; provided,
however, that, prior to such final adjudication, the corporation may compromise
and settle any such claims and liabilities and pay such expenses, if such
settlement or payment, or both, appears, in the judgment of a majority of those
members of the Board of Directors who are not directly involved in such matters,
to be for the best interest of the corporation as evidenced by a resolution to
that effect adopted after receipt by the corporation of a written opinion of
counsel for the corporation that, based upon the facts available to such counsel
such person has not acted in a manner that would prohibit indemnification.
Section 67, Chapter 156B of the Massachusetts Business Corporation Law also
contains provisions authorizing a corporation to obtain insurance on behalf of
any director, officer, employee or agent of the corporation against liabilities,
whether or not the corporation would have the power to indemnify against such
liabilities. The Registrant maintains directors' and officers' liability and
company reimbursement liability insurance. Subject to certain deductibles, such
insurance will pay up to $50,000,000 per year on claims or errors and omissions
against the Registrant's directors and officers and will reimburse the
Registrant for amounts paid to indemnify directors and officers against the
costs of such claims pursuant to the Registrant's Bylaws.
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<PAGE> 42
In the Underwriting Agreements the underwriters will agree to indemnify,
under certain conditions, the Registrant, its directors, certain of its officers
and persons who control the Registrant within the meaning of the Securities Act
of 1933, as amended, against certain liabilities.
ITEM 16. EXHIBITS
<TABLE>
<C> <S>
*1.1 Form of Common Stock Underwriting Agreement.
#1.2 Form of Debt Underwriting Agreement.
+4.1 Form of Senior Debt Indenture between the Registrant and The
First National Bank of Chicago, as Trustee.
#4.2 Form of Subordinated Debt Indenture between the Registrant
and The First National Bank of Chicago, as Trustee.
4.3 Restated Articles of Organization of the Registrant filed
with the Securities and Exchange Commission on March 30,
1999 as Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K and incorporated herein by reference.
4.4 Bylaws of the Registrant filed with the Securities and
Exchange Commission on March 24, 1998 as Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K and incorporated
herein by reference.
4.5 The Rights Agreement dated as of January 25, 1995 between
the Registrant and the First National Bank of Boston filed
with the Securities and Exchange Commission on January 27,
1995 as Exhibit 4.1 to the Registrant's Current Report on
Form 8-K and incorporated herein by reference.
+5.1 Opinion and Consent of Murray Gross, Esq.
+12.1 Statement re computation of ratios.
#23.1 Consent of Arthur Andersen LLP, Boston.
+23.2 Consent of Murray Gross, Esq. (included as part of Exhibit
5.1).
#23.3 Consent of PricewaterhouseCoopers LLP.
#23.4 Consent of Arthur Andersen LLP, San Jose.
+24.1 Powers of attorney.
+25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of the First National Bank of
Chicago, as Trustee with respect to the Senior Debt
Indenture, and as Trustee with respect to the Subordinated
Indenture.
</TABLE>
- ---------------
* To be filed by amendment or as an exhibit to a document to be incorporated by
reference herein in connection with an offering of the offered securities.
# Filed herewith.
+ Previously filed.
ITEM 17. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement.
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts 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
the volume of securities offered (if the total dollar value of
securities offered
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<PAGE> 43
would not exceed that which was registered) and any deviation from the
low or high and 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 20% change in the maximum aggregate offering price set
forth in the "Calculations of Registration Fee" table in the effective
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended, that are incorporated by reference in the
Registration Statement;
(b) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, 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; and
(c) 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.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, as amended, each
filing of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934, as amended, (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, as amended) 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.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, 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 against the Registrant 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.
4. The undersigned Registrant hereby undertakes that:
(a) For the purpose of determining any liability under the Securities Act
of 1933, as amended, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act, as amended, shall be
deemed to be part of this Registration Statement as of the time it was
declared effective; and
II-4
<PAGE> 44
(b) For the purpose of determining any liability under the Securities Act
of 1933, as amended, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
5. The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-5
<PAGE> 45
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL
OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS AMENDMENT
NO. 2 TO REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED,
THEREUNTO DULY AUTHORIZED, IN THE TOWN OF WELLESLEY, COMMONWEALTH OF
MASSACHUSETTS ON THE 1ST DAY OF APRIL, 1999.
EG&G, INC.
By: /s/ MURRAY GROSS
------------------------------------
Murray Gross,
Senior Vice President
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS AMENDMENT NO. 2 TO REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING
PERSONS IN THE CAPACITIES AND ON THE DATE INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
GREGORY L. SUMME* Chief Executive Officer April 1, 1999
- --------------------------------------------------- (Principal Executive
Gregory L. Summe Officer)
ROBERT F. FRIEL* Senior Vice President and April 1, 1999
- --------------------------------------------------- Chief Financial Officer
Robert F. Friel (Principal Financial
Officer)
GREGORY D. PERRY* Corporate Controller April 1, 1999
- --------------------------------------------------- (Principal Accounting
Gregory D. Perry Officer)
JOHN M. KUCHARSKI* Chairman of the Board April 1, 1999
- ---------------------------------------------------
John M. Kucharski
TAMARA J. ERICKSON* Director April 1, 1999
- ---------------------------------------------------
Tamara J. Erickson
JOHN B. GRAY* Director April 1, 1999
- ---------------------------------------------------
John B. Gray
KENT F. HANSEN* Director April 1, 1999
- ---------------------------------------------------
Kent F. Hansen
JOHN F. KEANE* Director April 1, 1999
- ---------------------------------------------------
John F. Keane
NICHOLAS A. LOPARDO* Director April 1, 1999
- ---------------------------------------------------
Nicholas A. Lopardo
GRETA E. MARSHALL* Director April 1, 1999
- ---------------------------------------------------
Greta E. Marshall
</TABLE>
II-6
<PAGE> 46
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
MICHAEL C. RUETTGERS* Director April 1, 1999
- ---------------------------------------------------
Michael C. Ruettgers
GREGORY L. SUMME* Director April 1, 1999
- ---------------------------------------------------
Gregory L. Summe
JOHN LARKIN THOMPSON* Director April 1, 1999
- ---------------------------------------------------
John Larkin Thompson
G. ROBERT TOD* Director April 1, 1999
- ---------------------------------------------------
G. Robert Tod
*By: /s/ MURRAY GROSS
---------------------------------------------
Murray Gross
Attorney-in-Fact
</TABLE>
II-7
<PAGE> 47
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO.
- -------
<C> <S>
*1.1 Form of Common Stock Underwriting Agreement.
#1.2 Form of Debt Underwriting Agreement.
+4.1 Form of Senior Debt Indenture between the Registrant and The
First National Bank of Chicago, as Trustee.
#4.2 Form of Subordinated Debt Indenture between the Registrant
and The First National Bank of Chicago, as Trustee.
4.3 Restated Articles of Organization of the Registrant filed
with the Securities and Exchange Commission on March 30,
1999 as Exhibit 3.1 to the Registrant's Annual Report on
Form 10-K and incorporated herein by reference.
4.4 Bylaws of the Registrant filed with the Securities and
Exchange Commission on March 24, 1998 as Exhibit 3.2 to the
Registrant's Annual Report on Form 10-K and incorporated
herein by reference.
4.5 The Rights Agreement dated as of January 25, 1995 between
the Registrant and the First National Bank of Boston filed
with the Securities and Exchange Commission on January 27,
1995 as Exhibit 4.1 to the Registrant's Current Report on
Form 8-K and incorporated herein by reference.
+5.1 Opinion and Consent of Murray Gross, Esq.
+12.1 Statement re computation of ratios.
#23.1 Consent of Arthur Andersen LLP, Boston.
+23.2 Consent of Murray Gross, Esq. (included as part of Exhibit
5.1).
#23.3 Consent of PricewaterhouseCoopers LLP.
#23.4 Consent of Arthur Andersen LLP, San Jose.
+24.1 Powers of attorney.
+25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The First National Bank of
Chicago, as Trustee with respect to the Senior Debt
Indenture, and as Trustee with respect to the Subordinated
Indenture.
</TABLE>
- ---------------
* To be filed by amendment or as an exhibit to a document to be incorporated by
reference herein in connection with an offering of the offered securities.
# Filed herewith.
+ Previously filed.
II-8
<PAGE> 1
EXHIBIT 1.2
EG&G, INC.
DEBT SECURITIES
----------
UNDERWRITING AGREEMENT
, 1999
GOLDMAN, SACHS & CO.,
MERRILL LYNCH & CO. INC.
C/O GOLDMAN, SACHS & CO.
85 BROAD STREET,
NEW YORK, NEW YORK 10004
Ladies and Gentlemen:
From time to time EG&G, Inc., a Massachusetts corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to an Underwriter or
Underwriters who act without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation of
any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be
<PAGE> 2
evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the aggregate principal
amount of such Designated Securities, the initial public offering price of such
Designated Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each
of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-71069 (the "Initial Registration Statement") in respect of the
Securities and certain other securities of the Company has been filed
with the Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendments
thereto, each in the form heretofore delivered or to be delivered to
the Representatives and, excluding exhibits to the Initial Registration
Statement, but including all documents incorporated by reference in the
prospectus contained therein, to the Representatives for each of the
other Underwriters, have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the
size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document with
respect to the Initial Registration Statement or document incorporated
by reference therein has heretofore been filed or transmitted for
filing with the Commission (other than prospectuses filed pursuant to
Rule 424(b) of the rules and regulations of the Commission under the
Act, each in the form heretofore delivered to the Representatives); and
no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) under the Act, is
hereinafter called a "Preliminary Prospectus"; the various parts of the
Initial Registration Statement, any post-effective amendment thereto
and the Rule 462(b) Registration Statement, if any, including all
exhibits thereto and the documents incorporated by reference in the
prospectus contained in the Initial Registration Statement at the time
such part of the Initial Registration Statement became effective but
excluding Form T-1, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in
-2-
<PAGE> 3
the form in which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of this Agreement,
being hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed after the
date of such Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any
annual report of the Company filed pursuant to Sections 13(a) or 15(d)
of the Exchange Act after the effective date of the Initial
Registration Statement that is incorporated by reference in the
Registration Statement; and any reference to the Prospectus as amended
or supplemented shall be deemed to refer to the Prospectus as amended
or supplemented in relation to the applicable Designated Securities in
the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none of such
documents contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus or any further
amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements
-3-
<PAGE> 4
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities or to any statement in or
omission from the Form T-1;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus which is material
to the Company and its subsidiaries, taken as a whole; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change in
the capital stock (other than pursuant to the Company's employee and
director stock and option plans and repurchases of the Company's common
stock pursuant to any previously announced authorizations to do so) or
any material increase in the long-term debt of the Company and its
subsidiaries, taken as a whole, or any material adverse change, or any
development which the Company has reasonable cause to believe would
involve a prospective material adverse change, in or affecting the
business, consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries taken as a
whole, otherwise than as set forth or contemplated in the Prospectus;
(e) The Company and its Material Subsidiaries (as set
forth in Schedule III attached hereto) have good and marketable title
to all property that is described in the Prospectus as being owned by
them, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do
not materially adversely affect the value of such property or the use
made and proposed to be made of such property by the Company and its
Material Subsidiaries; and any real property and buildings held under
lease by the Company and its Material Subsidiaries that are described
in the Prospectus are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material or do not
materially interfere with the use made and proposed to be made of such
property and buildings by the Company and its Material Subsidiaries;
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, or is
subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction; and each Material
Subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation (except with respect to any subsidiaries
incorporated in
-4-
<PAGE> 5
jurisdictions where the concept of good standing is not recognized),
and except for any failure to be so incorporated and existing which
would not have a material adverse effect on the business, consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole;
(g) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable, and all the issued shares of capital
stock of each Material Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and
(except as disclosed in the Annual Report on Form 10-K for the year
ended _________, and except for directors qualifying shares or such
shares as may be required by local laws to be owned by residents of the
jurisdiction of incorporation) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims.
(h) The Securities have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this
Agreement and the Pricing Agreement with respect to such Designated
Securities, such Designated Securities will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement (except to the extent
that the terms of any Designated Securities or Supplemental Indenture
render certain provisions of the Indenture inapplicable to such
Designated Securities) subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, moratorium, reorganization and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and, at the
Time of Delivery for such Designated Securities (as defined in Section
4 hereof), the Indenture will constitute a valid and legally binding
instrument, enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; and the Indenture conforms, and the
Designated Securities will conform, to the descriptions thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities;
(i) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the Securities,
the Indenture, this Agreement and any Pricing Agreement, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries
is subject, excluding conflicts, breaches, violations and defaults
that, individually or in the aggregate, will not have a material
adverse effect on the business, consolidated financial position,
stockholders' equity or results of
-5-
<PAGE> 6
operations of the Company and its subsidiaries taken as a whole, nor
will such action result in any violation of the provisions of the
Restated Articles of Organization or By-laws of the Company or any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or
the Indenture, except such as have been, or will have been prior to the
Time of Delivery, obtained under the Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Securities
by the Underwriters;
(j) Neither the Company nor any of its Material
Subsidiaries is in violation of its Restated Articles of Organization
or By-laws or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound, except for violations or defaults that,
individually or in the aggregate, will not have a material adverse
effect on the consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole;
(k) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which will, in the
Company's reasonable belief, individually or in the aggregate, have a
material adverse effect on the business, consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(l) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(m) Arthur Andersen LLP, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(n) Except as disclosed in or specifically contemplated
by the Prospectus, the Company has not been advised, and has no reason
to believe, that either the Company or any of its subsidiaries is not
conducting business in compliance with all applicable laws, rules and
regulations of the jurisdictions in which it is conducting business,
including, without
-6-
<PAGE> 7
limitation, all applicable local, state and federal environmental laws
and regulations, except where the failure to be so in compliance would
not materially adversely affect the general affairs, consolidated
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, taken as a whole; and
(o) The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns
(or has timely filed for extensions thereof), except in any case in
which the failure so to file would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, and have paid
all taxes shown as due thereon to the extent such taxes are due and
payable, except in all cases for any such tax that is being contested
by the Company in good faith; and, except as disclosed in the
Prospectus, the Company has no knowledge of any tax deficiency which
has been or might be asserted or threatened against the Company or its
subsidiaries which could materially and adversely affect the business,
operations or properties of the Company and its subsidiaries, taken as
a whole;
(p) The Company has in good faith attempted to review its
operations and that of its subsidiaries and any third parties with
which the Company or any of its subsidiaries has a material
relationship to evaluate the extent to which the business or operations
of the Company or any of its subsidiaries will be affected by the Year
2000 Problem. Except as set forth in the Prospectus, to the knowledge
of the Company, the Year 2000 Problem will not have a material adverse
effect on the business, consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in the form specified in
such Pricing Agreement, and in such authorized denominations and registered in
such names as the Representatives may request upon at least forty-eight hours'
prior notice to the Company, shall be delivered by or on behalf of the Company
to the Representatives for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor by wire
transfer of Federal (same-day) funds to an account specified by the Company to
the Representatives at least forty-eight hours in advance or at such other place
and time and date as the Representatives and the Company may agree upon in
writing, such time and date being herein called the "Time of Delivery" for such
Securities.
-7-
<PAGE> 8
5. The Company agrees with each of the Underwriters of any
Designated Securities:
(a) To prepare the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in a form approved
by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Securities or,
if applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Designated Securities and prior
to the Time of Delivery for such Securities which shall be disapproved
by the Representatives for such Securities promptly after reasonable
notice thereof; to advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Designated
Securities, and during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus
has been filed with the Commission, of the issuance by the Commission
of any stop order or of any order preventing or suspending the use of
any Preliminary Prospectus or Prospectus relating to such Designated
Securities, of the suspension of the qualification of such Designated
Securities for offering or sale in any jurisdiction, of the initiation
or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information;
and, in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of the Registration Statement or
the Prospectus relating to such Designated Securities or suspending any
such qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
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 such Designated Securities, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New
York business day next succeeding the date of the applicable Pricing
Agreement and from time to time, to furnish the Underwriters with
copies of the Prospectus as amended or supplemented in New York City in
such quantities as the Representatives may reasonably request, and, if
the delivery of a prospectus is required at any time in connection with
the offering or sale of the Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then
-8-
<PAGE> 9
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend
or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify
the Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its security holders
as soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), an earnings statement of the Company and
its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Company by the
Representatives as soon as practicable, but in any event not later than
15 days after the Time of Delivery, and (ii) the Time of Delivery for
such Designated Securities, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company which mature
more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of the applicable Pricing Agreement, and the
Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give
irrevocable instructions for the payment of such fee pursuant to Rule
111(b) under the Act.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Indenture, any Blue Sky Memoranda, closing documents (including any compilations
thereof) and any other documents in connection with the offering, purchase, sale
and delivery of the Securities;
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<PAGE> 10
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky Surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) any filing fees incident to any review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the
cost of preparing the Securities; (vii) the fees and expenses of any Trustee and
any agent of any Trustee and the fees and disbursements of counsel for any
Trustee in connection with any Indenture and the Securities; and (viii) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company in
or incorporated by reference in the Pricing Agreement relating to such
Designated Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation
to the applicable Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall
have become effective by 10:00 P.M., Washington, D.C. time, on the date
of this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the
Representatives' reasonable satisfaction;
(b) Ropes & Gray, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated
the Time of Delivery for such Designated Securities, with respect to
the matters covered in paragraphs (i), (ii), (iv), and the unnumbered
paragraph, of subsection (c) and paragraphs (i), (ii), (v) and (vii) of
subsection (d) below as well as such other related matters as the
Representatives may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to
enable them to pass upon such matters;
(c) Hale and Dorr LLP, counsel for the Company, shall
have furnished to the Representatives their written opinion, dated the
Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect that:
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<PAGE> 11
(i) The Designated Securities have been duly
authorized, executed, authenticated, issued and delivered by
the Company and, when paid for in accordance with the terms
thereof, will constitute valid and legally binding obligations
of the Company entitled to the benefits provided by the
Indenture, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, moratorium, reorganization
and similar laws of general applicability relating to or
affecting creditors' rights and general equity principles; and
the Designated Securities and the Indenture conform in all
material respects to the descriptions thereof in the
Prospectus as amended or supplemented;
(ii) The Indenture has been duly authorized,
executed and delivered by the Company and, assuming the 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, subject, as to its binding nature and
enforceability, to bankruptcy, insolvency, fraudulent
transfer, moratorium, reorganization and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles; and the Indenture has
been duly qualified under the Trust Indenture Act;
(iii) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the issue and sale
of the Designated Securities or the consummation by the
Company of the transactions contemplated by this Agreement,
such Pricing Agreement or the Indenture, except such as have
been obtained under the Act and the Trust Indenture Act and
such consents, approvals, authorizations, orders,
registrations or qualifications as may be required under state
securities or Blue Sky laws (as to the applicability of which
no opinion need be expressed) in connection with the purchase
and distribution of the Designated Securities by the
Underwriters;
(iv) The Registration Statement and the
Prospectus as amended or supplemented and any further
amendments and supplements thereto made by the Company prior
to the Time of Delivery of the Designated Securities (other
than the financial statements and financial data and related
schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
rules and regulations thereunder; and
(v) This Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly
authorized, executed and delivered by the Company.
Such counsel shall also state, without passing upon or assuming any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, that nothing has come
to their attention that has led them to believe (a) that, as of the effective
date
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<PAGE> 12
of the Registration Statement, the Registration Statement (or as of its date,
any amendment or supplement thereto made by the Company prior to the date of
such opinion) contained any 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 (b) that, as of its date, the Prospectus as
amended or supplemented or any further amendment or supplement thereto made by
the Company prior to the Time of Delivery contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (c) that, as of the
Time of Delivery, the Registration Statement as amended contained any 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
(d) that, as of the Time of Delivery, the Prospectus as amended or supplemented
contained any 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,
in the light of the circumstances under which they were made, not misleading.
Such counsel need express no belief as to the financial statements, including
the notes and schedules thereto, or any financial data set forth or referred to
in the Registration Statement or the Prospectus.
(d) Murray Gross, Esquire, General Counsel of the
Company, shall have furnished to the Representatives his opinion, dated
the Time of Delivery for such Designated Securities, in form and
substance satisfactory to the Representatives, to the effect that:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of The Commonwealth of Massachusetts, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
(ii) The Company has an authorized capitalization
as set forth in the Prospectus as amended or supplemented, and
all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid
and non-assessable;
(iii) Each Material Subsidiary of the Company has
been duly incorporated and is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation (except with respect to any such
subsidiaries incorporated in jurisdictions where the concept
of good standing is not recognized, and except for any failure
to be so incorporated and existing which would not have a
material adverse effect on the business, consolidated
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a
whole); and all of the issued shares of capital stock of each
such Material Subsidiary have been duly and validly authorized
and issued, are fully paid and non-assessable, and (except as
disclosed in the Annual Report on Form 10-K for the year ended
_______________, and except for directors' qualifying shares
or such shares as may be required by local laws to be owned by
residents of the jurisdiction of incorporation) are owned of
record directly or indirectly by the Company, to its knowledge
free and
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<PAGE> 13
clear of all liens, encumbrances, equities or claims (such
counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company
or its subsidiaries, provided that such counsel shall state
that he believes that both the Representatives and he are
justified in relying upon such opinions and certificates);
(iv) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which
will, in such counsel's reasonable belief, individually or in
the aggregate, have a material adverse effect on the business,
consolidated financial position, stockholders' equity or
results of operations of the Company and its subsidiaries
taken as a whole; and, to such counsel's knowledge, no such
proceedings are threatened by governmental authorities or
threatened by others;
(v) This Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(vi) The issue and sale of the Designated
Securities and the compliance by the Company with all of the
provisions of the Designated Securities, the Indenture, this
Agreement and the Pricing Agreement with respect to the
Designated Securities and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach or violation of the Restated Articles of
Organization or By-laws of the Company, nor will such actions
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to
which any of the properties or assets of the Company is
subject, or rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over
the Company or any of its properties (except that such opinion
shall not extend to compliance with the anti-fraud provisions
of federal or state securities laws); except for such
conflicts, breaches, violations and defaults as are not
reasonably likely, individually or in the aggregate, to have a
material adverse effect on the business, consolidated
financial position, stockholders' equity, results of
operations, business or prospects of the Company and its
subsidiaries, taken as a whole; and
(vii) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than the
financial statements and financial data and related schedules
therein, as to which such counsel need express no opinion),
when they were filed with the Commission, complied as to form
in all material respects with the requirements of the Exchange
Act and the rules and regulations of the Commission
thereunder; and he does not know of any amendment to the
Registration
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<PAGE> 14
Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to
the Registration Statement or required to be incorporated by
reference into the Prospectus or required to be described in
the Registration Statement or the Prospectus which are not
filed or incorporated by reference or described as required.
Such counsel shall also state that he has no reason to believe that any
of the documents incorporated by reference in the Prospectus as amended or
supplemented, when they were so filed, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
when such documents were so filed, not misleading.
(e) On the date of the Pricing Agreement for such
Designated Securities at a time prior to the execution of the Pricing
Agreement with respect to such Designated Securities and at the Time of
Delivery for such Designated Securities, the independent accountants of
the Company who have certified the financial statements of the Company
and its subsidiaries included or incorporated by reference in the
Registration Statement shall have furnished to the Representatives a
letter, dated the effective date of the Registration Statement or the
date of the most recent report filed with the Commission containing
financial statements and incorporated by reference in the Registration
Statement, if the date of such report is later than such effective
date, and a letter dated such Time of Delivery, respectively, to the
effect set forth in Annex II hereto, and with respect to such letter
dated such Time of Delivery, as to such other matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(f) (i) The Company and its subsidiaries, taken as a
whole, shall not have sustained since the date of the latest audited
financial statements included or incorporated by reference in the
Prospectus as amended or supplemented prior to the date of the Pricing
Agreement relating to the Designated Securities any material loss or
interference with their businesses from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Agreement relating to the
Designated Securities, and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior
to the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any material change in the capital
stock (other than pursuant to the Company's employee and director stock
and option plans and repurchases of common stock of the Company
pursuant to any previously announced authorizations to do so) or any
increase in the long-term debt of the Company and its subsidiaries,
taken as a whole, in excess of $10,000,000, or any material adverse
change, or any development involving a prospective material adverse
change, in or affecting the business, consolidated financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Agreement relating to the Designated Securities,
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<PAGE> 15
the effect of which, in any such case described in Clause (i) or (ii),
is in the judgment of the Representatives so material and adverse as to
make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms and
in the manner contemplated in the Prospectus as amended or supplemented
relating to the Designated Securities;
(g) On or after the date of the Pricing Agreement
relating to the Designated Securities (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock;
(h) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange; (ii) a suspension
or material limitation in trading in the Company's securities on the
New York Stock Exchange; (iii) a general moratorium on commercial
banking activities declared by either Federal or New York State
authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this Clause (iv) in the judgment of the Representatives makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(i) The Company shall have complied with the provisions
of Section 5(c) hereof with respect to the furnishing of prospectuses
on the New York business day next succeeding the date of the applicable
Pricing Agreement; and
(j) The Company shall have furnished or caused to be
furnished to the Representatives at the Time of Delivery for the
Designated Securities a certificate or certificates of officers of the
Company (on behalf of the Company) satisfactory to the Representatives
as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior
to such Time of Delivery, as to the matters set forth in subsections
(a) and (f) of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration
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<PAGE> 16
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of Designated Securities
through the Representatives expressly for use therein; and provided further,
that the Company shall not be liable to any Underwriter with respect to any
Preliminary Prospectus or any preliminary prospectus supplement, to the extent
that any such loss, claim, damage or liability of such Underwriter results
solely from an untrue statement of a material fact contained in, or the omission
of a material fact from, such Preliminary Prospectus, which untrue statement or
omission was corrected in the Prospectus, if the Company shall sustain the
burden of proving that (i) such Underwriter sold Securities to the person
alleging such loss, claim, damage or liability without sending or giving or
making available electronically, at or prior to the written confirmation of such
sale, a copy of the Prospectus to such person, (ii) delivery of a Prospectus was
required under the Act, and (iii) the Company delivered to the Underwriters
copies of such Prospectus in such quantities as they shall have reasonably
requested.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not
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<PAGE> 17
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection and shall relieve it from liability under
such subsection only to the extent that such omission results in the forfeiture
by the indemnifying party of material rights or defenses with respect to such
action. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party. No
indemnifying party shall be liable for any settlement of any claim or action
effected without its consent, which consent will not be unreasonably withheld.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Designated Securities on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by such Underwriters. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or such Underwriters
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<PAGE> 18
on the other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such Designated Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company and to each
person, if any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
to purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company that they
have so arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of such
Designated Securities, the Representatives or the Company shall have the right
to postpone the Time of Delivery for such Designated Securities for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company agrees
to file promptly any amendments or supplements to the Registration Statement or
the Prospectus which in the opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person
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<PAGE> 19
substituted under this Section with like effect as if such person had originally
been a party to the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities.
11. If any Pricing Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Sections 6 and 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
-19-
<PAGE> 20
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company and, to
the extent provided in Sections 8 and 10 hereof, the officers and directors of
the Company and each person who controls the Company or any Underwriter, and
their respective heirs, executors, administrators, successors and assigns, and
no other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of counterparts,
each of which shall be deemed to be an original, but all such respective
counterparts shall together constitute one and the same instrument.
-20-
<PAGE> 21
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof.
Very truly yours,
EG&G, Inc.
By:
------------------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Merrill Lynch & Co.
By:
------------------------------------
(Goldman, Sachs & Co.)
-22-
<PAGE> 22
ANNEX I
PRICING AGREEMENT
Goldman, Sachs & Co.,
Merrill Lynch & Co.
As Representatives of the several
Underwriters named in Schedule I hereto,
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004.
, ____
Ladies and Gentlemen:
EG&G, Inc., a Massachusetts corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated ______________, 1999 (the "Underwriting Agreement"), between
the Company on the one hand and Goldman, Sachs & Co. and Merrill Lynch & Co. on
the other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting Agreement
is incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
<PAGE> 23
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the principal amount of Designated Securities set forth opposite the name of
such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is or will be pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
EG&G, Inc.
By:
------------------------------------
Name:
Title:
Accepted as of the date hereof:
Goldman, Sachs & Co.
Merrill Lynch & Co.
By:
------------------------------------
(Goldman, Sachs & Co.)
-2-
<PAGE> 24
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
Goldman, Sachs & Co. $
Merrill Lynch & Co.
Total $
-1-
<PAGE> 25
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[%] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due ,
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and
accrued amortization[, if any,] from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to [and
accrued amortization[, if any,] from to ]
FORM OF DESIGNATED SECURITIES:
[Definitive form to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the
Representatives]]
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company ("DTC") or its designated
custodian, to be made available for checking by the Representatives at
least twenty-four hours prior to the Time of Delivery at the office of
DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
TIME OF DELIVERY:
a.m. (New York City time), , ____
Indenture:
Indenture dated , ____, between the Company
and , as Trustee
MATURITY:
INTEREST RATE:
[%] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates, commencing ....................., 19..]
<PAGE> 26
REDEMPTION PROVISIONS:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed
in percentages of principal amount). If [redeemed on or before ,
%, and if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
and thereafter at 100% of their principal amount,
together in each case with accrued interest to the
redemption date.]
[on any interest payment date falling on or
after , , at the election of
the Company, at a redemption price equal to the
principal amount thereof, plus accrued interest
to the date of redemption.]]
[Other possible redemption provisions, such as
mandatory redemption upon occurrence of certain
events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund
to retire [$ ] principal amount of Designated Securities on in each
of the years through at 100% of their principal amount plus
accrued interest[, together with [cumulative] [noncumulative] redemptions
at the option of the Company to retire an additional [$ ] principal
amount of Designated Securities in the years through at 100% of
their principal amount plus accrued interest.]
DEFEASANCE PROVISIONS:
-2-
<PAGE> 27
CLOSING LOCATION FOR DELIVERY OF DESIGNATED SECURITIES:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives: Goldman, Sachs & Co.
Address for Notices, etc.: 85 Broad Street
New York, NY 10004
Attention: Syndicate Department
CAPTION OF PROSPECTUS SUPPLEMENT:
OTHER TERMS:
-3-
<PAGE> 28
SCHEDULE III
MATERIAL SUBSIDIARIES
NAME STATE OR JURISDICTION OF INCORPORATION
<PAGE> 29
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules audited (and, if
applicable, financial forecasts and/or pro forma financial information)
examined by them and included or incorporated by reference in the
Registration Statement or the Prospectus comply as to form in all
material respects with the applicable accounting requirements of the
Act or the Exchange Act, as applicable, and the related rules and
regulations adopted by the Commission thereunder; and, if applicable,
they have made a review in accordance with standards established by the
American Institute of Certified Public Accountants of the consolidated
interim financial statements, selected financial data, pro forma
financial information, financial forecasts and/or condensed financial
statements derived from audited financial statements of the Company for
the periods specified in such letter, as indicated in their reports
thereon, copies of which have been furnished to the representative or
representatives of the Underwriters (the "Representatives"), such term
to include an Underwriter or Underwriters who act without any firm
being designated as its or their representatives, and are attached
hereto;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
report on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which [HAVE BEEN
SEPARATELY FURNISHED TO THE REPRESENTATIVES][ARE ATTACHED HERETO]; and
on the basis of specified procedures including inquiries of officials
of the Company who have responsibility for financial and accounting
matters regarding whether the unaudited condensed consolidated
financial statements referred to in paragraph (vi)(A)(i) below comply
as to form in all material respects with the applicable accounting
requirements of the [ACT AND THE EXCHANGE] Act and the related
published rules and regulations, nothing came to their attention that
caused them to believe that the unaudited condensed consolidated
financial statements do not comply as to form in all material respects
with the applicable accounting requirements of the [ACT AND THE
EXCHANGE] Act and the related published rules and regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated
<PAGE> 30
financial statements for five such fiscal years which were included or
incorporated by reference in the Company's Annual Reports on Form 10-K
for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited procedures specified in such letter
nothing came to their attention as a result of the foregoing procedures
that caused them to believe that this information does not conform in
all material respects with the disclosure requirements of Items 301 and
503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting
an examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made
to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data
and balance sheet items included in the Prospectus do not
agree with the corresponding items in the unaudited
consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were
not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year;
(C) the unaudited financial statements which
were not included in the Prospectus but from which were
derived the unaudited condensed financial statements
-2-
<PAGE> 31
referred to in clause (A) and any unaudited income statement
data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis
substantially consistent with the basis for the audited
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(D) any unaudited pro forma consolidated
condensed financial statements included or incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
(E) as of a specified date not more than five
days prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or
any increase in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not constituting an audit in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representatives which are derived from the general accounting
-3-
<PAGE> 32
records of the Company and its subsidiaries, which appear in the
Prospectus (excluding documents incorporated by reference), or in Part
II of, or in exhibits and schedules to, the Registration Statement
specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and
have found them to be in agreement.
All references in this Annex II to the Prospectus shall be
deemed to refer to the Prospectus (including the documents incorporated by
reference therein) as defined in the Underwriting Agreement as of the date of
the letter delivered on the date of the Pricing Agreement for purposes of such
letter and to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for such
Designated Securities.
-4-
<PAGE> 1
EXHIBIT 4.2
- --------------------------------------------------------------------------------
EG&G, INC.
TO
THE FIRST NATIONAL BANK OF CHICAGO
----------
INDENTURE
Dated as of ________, 1999
Providing for Issuance of Subordinated
Debt Securities in Series
- --------------------------------------------------------------------------------
<PAGE> 2
EG&G, INC.
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
(S) 310 (a) (1) ............................................ 609
(a) (2) ............................................ 609
(a) (3) ............................................ Not Applicable
(a) (4) ............................................ Not Applicable
(b) ............................................ 608
610
(S) 311 (a) ............................................ 613
(b) ............................................ 613
(S) 312 (a) ............................................ 701
702(a)
(b) ............................................ 702(b)
(c) ............................................ 702(c)
(S) 313 (a) ............................................ 703(a)
(b) ............................................ 703(a)
(c) ............................................ 703(a)
(d) ............................................ 703(b)
(S) 314 (a) ............................................ 704
(a) (4) ............................................ 101
1004
(b) ............................................ Not Applicable
(c) (1) ............................................ 102
401
(c) (2) ............................................ 102
401
(c) (3) ............................................ 1504(1)
(d) ............................................ Not Applicable
</TABLE>
2
<PAGE> 3
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
(e) ............................................ 102
(S) 315 (a) ............................................ 601
(b) ............................................ 602
(c) ............................................ 601
(d) ............................................ 601
(e) ............................................ 514
(S) 316 (a) (1)(A) ............................................ 502
512
(a) (1)(B) ............................................ 513
(a) (2) ............................................ Not Applicable
(b) ............................................ 508
(c) ............................................ 104(c)
(S) 317 (a) (1) ............................................ 503
(a) (2) ............................................ 504
(b) ............................................ 1003
(S) 318 (a) ............................................ 107
</TABLE>
- --------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
3
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE ONE
Definitions and Other Provisions of General Application................... 1
Section 101. DEFINITIONS................................................. 1
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS........................ 8
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE...................... 9
Section 104. ACTS OF HOLDERS; RECORD DATES............................... 10
Section 105. NOTICES, ETC., TO TRUSTEE AND COMPANY....................... 11
Section 106. NOTICE TO HOLDERS; WAIVER................................... 11
Section 107. CONFLICT WITH TRUST INDENTURE ACT........................... 12
Section 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.................... 12
Section 109. SUCCESSORS AND ASSIGNS...................................... 12
Section 110. SEPARABILITY CLAUSE......................................... 12
Section 111. BENEFITS OF INDENTURE....................................... 12
Section 112. GOVERNING LAW............................................... 13
Section 113. LEGAL HOLIDAYS.............................................. 13
ARTICLE TWO
Security Forms............................................................ 13
Section 201. FORMS GENERALLY............................................. 13
Section 202. FORM OF FACE OF SECURITY.................................... 14
Section 203. FORM OF REVERSE OF SECURITY................................. 16
Section 204. ADDITIONAL PROVISIONS REQUIRED IN BOOK-ENTRY SECURITY....... 21
Section 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION............. 22
ARTICLE THREE
The Securities............................................................ 22
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES........................ 22
Section 302. DENOMINATIONS............................................... 26
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.............. 26
Section 304. TEMPORARY SECURITIES........................................ 28
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE......... 29
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES............ 30
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.............. 31
Section 308. PERSONS DEEMED OWNERS....................................... 33
Section 309. CANCELLATION................................................ 33
</TABLE>
i
<PAGE> 5
<TABLE>
<CAPTION>
<S> <C>
Section 310. COMPUTATION OF INTEREST..................................... 33
Section 311. CUSIP NUMBERS............................................... 34
ARTICLE FOUR
Satisfaction and Discharge................................................ 34
Section 401. SATISFACTION AND DISCHARGE OF INDENTURE..................... 34
Section 402. APPLICATION OF TRUST MONEY.................................. 35
ARTICLE FIVE
Remedies.................................................................. 36
Section 501. EVENTS OF DEFAULT........................................... 36
Section 502. ACCELERATION OF MATURITY: RESCISSION AND ANNULMENT.......... 38
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS
FOR ENFORCEMENT BY TRUSTEE.................................. 39
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM............................ 39
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT
POSSESSION OF SECURITIES.................................... 40
Section 506. APPLICATION OF MONEY COLLECTED.............................. 40
Section 507. LIMITATION ON SUITS......................................... 41
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST............................. 41
Section 509. RESTORATION OF RIGHTS AND REMEDIES.......................... 42
Section 510. RIGHTS AND REMEDIES CUMULATIVE.............................. 42
Section 511. DELAY OR OMISSION NOT WAIVER................................ 42
Section 512. CONTROL BY HOLDERS.......................................... 42
Section 513. WAIVER OF PAST DEFAULTS..................................... 43
Section 514. UNDERTAKING FOR COSTS....................................... 43
Section 515. WAIVER OF USURY STAY OR EXTENSION LAWS...................... 43
ARTICLE SIX
The Trustee............................................................... 44
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES......................... 44
Section 602. NOTICE OF DEFAULTS.......................................... 44
Section 603. CERTAIN RIGHTS OF TRUSTEE................................... 44
Section 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES...... 46
Section 605. MAY HOLD SECURITIES......................................... 46
Section 606. MONEY HELD IN TRUST......................................... 46
Section 607. COMPENSATION AND REIMBURSEMENT.............................. 46
Section 608. DISQUALIFICATION; CONFLICTING INTERESTS..................... 47
Section 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY..................... 48
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR........... 48
</TABLE>
ii
<PAGE> 6
<TABLE>
<CAPTION>
<S> <C>
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR...................... 50
Section 612. MERGER CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.. 51
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY........... 51
Section 614. APPOINTMENT OF AUTHENTICATING AGENT......................... 51
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company......................... 53
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS........................................ 53
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS...... 54
Section 703. REPORTS BY TRUSTEE.......................................... 54
Section 704. REPORTS BY COMPANY.......................................... 54
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease...................... 55
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS........ 55
Section 802. SUCCESSOR SUBSTITUTED....................................... 55
ARTICLE NINE
Supplemental Indentures................................................... 56
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.......... 56
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS............. 57
Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES........................ 59
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES........................... 59
Section 905. CONFORMITY WITH TRUST INDENTURE ACT......................... 59
Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.......... 59
ARTICLE TEN
Covenants................................................................. 60
Section 1001. PAYMENT OF PRINCIPAL PREMIUM AND INTEREST.................. 60
Section 1002. MAINTENANCE OF OFFICE OR AGENCY............................ 60
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.......... 60
Section 1004. STATEMENT BY OFFICERS AS TO DEFAULT........................ 62
Section 1005. EXISTENCE.................................................. 62
Section 1006. WAIVER OF CERTAIN COVENANTS................................ 62
Section 1007. CALCULATION OF ORIGINAL ISSUE DISCOUNT..................... 62
ARTICLE ELEVEN
Redemption of Securities.................................................. 63
</TABLE>
iii
<PAGE> 7
<TABLE>
<CAPTION>
<S> <C>
Section 1101. APPLICABILITY OF ARTICLE................................... 63
Section 1102. ELECTION TO REDEEM: NOTICE TO TRUSTEE...................... 63
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.......... 63
Section 1104. NOTICE OF REDEMPTION....................................... 64
Section 1105. DEPOSIT OF REDEMPTION PRICE................................ 64
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE...................... 65
Section 1107. SECURITIES REDEEMED IN PART................................ 65
ARTICLE TWELVE
Sinking Funds............................................................. 66
Section 1201. APPLICABILITY OF ARTICLE................................... 66
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES...... 66
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.................. 66
ARTICLE THIRTEEN
Subordination of Securities............................................... 67
Section 1301. SECURITIES SUBORDINATE TO SENIOR DEBT...................... 67
Section 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC............. 67
Section 1303. NO PAYMENT WHEN SENIOR DEBT IN DEFAULT..................... 68
Section 1304. PAYMENT PERMITTED IF NO DEFAULT............................ 69
Section 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT............ 69
Section 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS................ 70
Section 1307. TRUSTEE TO EFFECTUATE SUBORDINATION........................ 70
Section 1308. NO WAIVER OF SUBORDINATION PROVISIONS...................... 70
Section 1309. NOTICE TO TRUSTEE.......................................... 71
Section 1310. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE
OF LIQUIDATING AGENT....................................... 72
Section 1311. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT........... 72
Section 1312. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT;
PRESERVATION OF TRUSTEE'S RIGHTS........................... 72
Section 1313. ARTICLE APPLICABLE TO PAYING AGENTS........................ 72
Section 1314. DEFEASANCE OF THIS ARTICLE THIRTEEN........................ 73
ARTICLE FOURTEEN
Conversion of Securities.................................................. 73
Section 1401. APPLICABILITY OF ARTICLE................................... 73
Section 1402. CONVERSION PRIVILEGE AND CONVERSION PRICE.................. 73
Section 1403. EXERCISE OF CONVERSION PRIVILEGE........................... 74
Section 1404. FRACTIONS OF SHARES........................................ 74
Section 1405. ADJUSTMENT OF CONVERSION PRICE............................. 75
Section 1406. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.................. 80
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
Section 1407. NOTICE OF CERTAIN CORPORATE ACTION......................... 80
Section 1408. COMPANY TO RESERVE COMMON STOCK............................ 81
Section 1409. TAXES ON CONVERSIONS....................................... 81
Section 1410. COVENANT AS TO COMMON STOCK................................ 82
Section 1411. CANCELLATION OF CONVERTED SECURITIES....................... 82
Section 1412. PROVISIONS IN CASE OF CONSOLIDATION, MERGER
OR SALE OF ASSETS.......................................... 82
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance........................................ 83
Section 1501. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE................... 83
Section 1502. DEFEASANCE AND DISCHARGE................................... 83
Section 1503. COVENANT DEFEASANCE........................................ 84
Section 1504. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE............ 84
Section 1505. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS........... 86
Section 1506. COUNTERPARTS............................................... 86
</TABLE>
v
<PAGE> 9
INDENTURE, dated as of ________, __, 1999, between EG&G, Inc., a
corporation duly organized and existing under the laws of the Commonwealth of
Massachusetts (herein called the "Company"), having its principal office at 45
William Street, Wellesley, Massachusetts 02481, and The First National Bank of
Chicago, a national banking association, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation
<PAGE> 10
required or permitted hereunder shall mean such accounting principles
as are generally accepted at the date of such computation; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Clerk
or an Assistant Clerk of the Company to have been duly adopted by the Board of
Directors (which resolution may delegate to specified officers of the Company
the power to determine the forms of series of Securities pursuant to Section 201
and the terms and provisions of such series of Securities pursuant to Section
301, such determination to be evidenced by an Officers' Certificate) and to be
in full force and effect on the date of such certification, and delivered to the
Trustee.
"Book-Entry Security" means a Security substantially in the form
prescribed in Section 204 evidencing all or part of a series of Securities,
issued to the Depositary for such series or its nominee, and registered in the
name of such Depositary or such nominee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
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<PAGE> 11
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. However, subject to the
provisions of Section 1412, shares issuable on conversion of Securities shall
include only shares of the class designated as Common Stock of the Company at
the date of this instrument or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which are
not subject to redemption by the Company; provided that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board of Directors, its
Chief Executive Officer, its President, its Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Controller, an
Assistant Controller, its Clerk or an Assistant Clerk, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office at the date of original execution of this Indenture is located at One
First National Plaza, Suite 0126, Chicago, Illinois 60670, Attention: Corporate
Trust Services Division, except that, with respect to presentation of the
Securities for payment or registration of transfers or exchanges and the
location of the register, such term means the office or agency of the Trustee
at which at any particular time its corporate agency business shall be
conducted, which at the date of original execution of this Indenture is located
at c/o First Chicago Trust Company of New York, 14 Wall Street, 8th
Floor-Window 2, New York, New York 10005.
"Corporation" means a corporation, association, company, joint-stock
company, business trust or limited liability company.
3
<PAGE> 12
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 301, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934; and if at any time there is more than
one such Person, "Depositary" as used with respect to the Securities of any
series shall mean the Depositary with respect to the Securities of such series.
"Event of Default" has the meaning specified in Section 501.
"Expiration Time" has the meaning specified in Section 1405.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the forms and terms of
particular series of Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the principal
amount thereof payable at Stated Maturity may be more or less than the principal
face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors, the Chief Executive Officer,
4
<PAGE> 13
the President, the Chief Financial Officer or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Clerk or an Assistant Clerk, of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, EXCEPT:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; PROVIDED that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to Section 1104 of this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1502
and 1503, with respect to which the Company has effected defeasance or
covenant defeasance as provided in Article Fifteen; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calculations required
by Section 313 of the Trust Indenture Act, (i) the principal amount of an
Original Issue Discount Security that
5
<PAGE> 14
shall be deemed to be Outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof pursuant to Section 502, (ii) the principal
amount of a Security denominated in one or more foreign currencies or currency
units shall be the U.S. dollar equivalent, determined in the manner contemplated
by Section 301 on the date of original issuance of such Security, of the
principal amount (or, in the case of an Original Issue Discount Security, the
U.S. dollar equivalent on the date of original issuance of such Security of the
amount determined as provided in (i) above) of such Security, (iii) the
principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such Security
pursuant to Section 301, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Purchased Shares" has the meaning specified in Section 1405.
6
<PAGE> 15
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Payment" has the meaning specified in Section 1302.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means, without duplication, the principal, premium (if
any) and unpaid interest on all present and future (i) indebtedness of the
Company for borrowed money, (ii) obligations of the Company evidenced by bonds,
debentures, notes or similar instruments, (iii) indebtedness incurred, assumed
or guaranteed by the Company in connection with the acquisition by it or a
Subsidiary of any business, properties or assets (except purchase-money
indebtedness classified as accounts payable under generally accepted accounting
principles), (iv) obligations of the Company as lessee under leases required to
be capitalized on the balance sheet of the lessee under generally accepted
accounting principles, (v) reimbursement obligations of the Company in respect
of letters of credit relating to indebtedness or other obligations of the
Company that qualify as indebtedness or obligations of the kind referred to in
clauses (i) through (iv) above, and (vi) obligations of the Company under direct
or indirect guarantees in respect of, and obligations (contingent or otherwise)
to purchase or otherwise acquire, or otherwise to assure a creditor against loss
in respect of, indebtedness or obligations of others of the kinds referred to in
clauses (i) through (v) above, in each case unless in the instrument creating or
evidencing the indebtedness or obligation or pursuant to which the same is
7
<PAGE> 16
outstanding it is expressly provided that such indebtedness or obligation is not
superior in right of payment to the Securities.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a Corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock or
other similar security which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock or
other similar security has such voting power by reason of any contingency.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the applicable
securities exchange or in the applicable securities market.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; PROVIDED, HOWEVER, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in
Section 1504.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
Section 102. COMPLIANCE CERTIFICATES AND OPINIONS.
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<PAGE> 17
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company
9
<PAGE> 18
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to a Responsible Officer of the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments. Proof of execution
of any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the first
solicitation of a Holder of Securities of such series made by any Person in
respect of any such action, or, in the
10
<PAGE> 19
case of any such vote, prior to such vote, the record date for any such action
or vote shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 701) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 105. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with a Responsible Officer of the Trustee at its
Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to a Responsible Officer
of the Trustee by the Company.
Section 106. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect
11
<PAGE> 20
the sufficiency of such notice with respect to other Holders. Any notice mailed
to a Holder in the manner herein prescribed shall be conclusively deemed to have
been received by such Holder, whether or not such Holder actually receives such
notice. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of a Responsible
Officer of the Trustee shall constitute a sufficient notification for every
purpose hereunder.
Section 107. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
Section 108. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the
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Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 112. GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES THEREOF.
Section 113. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, the Redemption Date, or at the Stated Maturity or
Maturity, PROVIDED THAT no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date, Stated Maturity Date or Maturity,
as the case may be.
ARTICLE TWO
Security Forms
Section 201. FORMS GENERALLY.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security. If the form of Securities of any series is established by, or
by action taken pursuant to, a Board Resolution, a copy of an appropriate record
of such action shall be certified by the Clerk or an Assistant Clerk
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of the Company and delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 303 for the authentication and delivery of
such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202. FORM OF FACE OF SECURITY.
[INSERT ANY LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND THE
REGULATIONS THEREUNDER.]
EG&G, INC.
No. __________
$ ___________
CUSIP No. _______
EG&G, Inc., a corporation duly organized and existing under the laws of
the Commonwealth of Massachusetts (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _____________________________________,
or registered assigns, the principal sum of _______________ Dollars on
___________________________ [IF THE SECURITY IS TO BEAR INTEREST PRIOR TO
MATURITY, INSERT --, and to pay interest __________ thereon from __________ or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on _________ and __________ in each year,
commencing ___________, at the rate of _____% per annum, until the principal
hereof is paid or made available for payment [IF APPLICABLE, INSERT -- and (to
the extent that the payment of such interest shall be legally enforceable) at
the rate of _____% per annum on any overdue principal and premium and on any
overdue installment of interest]. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the __________ or __________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to
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<PAGE> 23
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
[IF THE SECURITY IS NOT TO BEAR INTEREST PRIOR TO MATURITY, INSERT --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [IF APPLICABLE,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ______________ in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [IF APPLICABLE, insert --;
PROVIDED, HOWEVER, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register,
provided that such Person shall have given the Trustee written wire
instructions.]
[IF THE SECURITY IS PAYABLE IN A FOREIGN CURRENCY, INSERT -- the
appropriate provision.]
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
EG&G, INC.
By: ____________________________________
Title:
Attest:
___________________________________
Title:
Section 203. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of ___________, 1999 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee, the
holders of Senior Debt and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof[, limited in
aggregate principal amount to $...........].
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [IF
APPLICABLE, INSERT -- (1) on _________ in any year commencing with the year
________ and ending with the year ________ through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time [on or after _______ 19__], as a whole or in part, at the
election of the Company, [at Redemption Prices determined as follows:] [at the
following Redemption Prices (expressed as percentages of the principal amount):
If redeemed [on or before ___________, ___%, and if redeemed] during the 12-
month period beginning _________ of the years indicated,
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<PAGE> 25
Redemption Year Price Redemption Year Price
--------------- ----- --------------- -----
and thereafter at a Redemption Price equal to _____% of the principal amount,]
together in the case of any such redemption [IF APPLICABLE, INSERT -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates or Special Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, (1) on
_________ in any year commencing with the year _____ and ending with the year
__________ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after __________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning _________ of the years indicated,
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
of the Sinking Fund Year of the Sinking Fund
------------------- ------------------------
and thereafter at a Redemption Price equal to _____% of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be
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payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Regular Record
Dates or Special Record Dates referred to on the face hereof, all as provided in
the Indenture.]
Notwithstanding the foregoing, the Company may not, prior to _________
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than _____% per annum.]
[The sinking fund for this series provides for the redemption on _____
in each year beginning with the year _____ and ending with the year of ______
[not less than $_____ ("mandatory sinking fund") and not more than] $_____
aggregate principal amount of Securities of this series. Securities of this
series acquired or redeemed by the Company otherwise than through [mandatory]
sinking fund payments may be credited against subsequent [mandatory] sinking
fund payments otherwise required to be made [in the inverse order in which they
become due].]
[IF THE SECURITIES DO NOT HAVE A SINKING FUND, THEN INSERT -- the
Securities do not have the benefit of any sinking fund obligations.]
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effect the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes.
[IF THE SECURITY IS SUBJECT TO REDEMPTION, INSERT -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
Security] [,in each case] upon compliance with certain conditions set forth in
the Indenture.]
[IF THE SECURITY IS NOT AN ORIGINAL ISSUE DISCOUNT SECURITY INSERT --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the
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<PAGE> 27
principal of the Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture.]
[IF THE SECURITY IS AN ORIGINAL ISSUE DISCOUNT SECURITY, INSERT -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to - INSERT FORMULA FOR DETERMINING THE
AMOUNT. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
[IF THE SECURITY IS AN INDEXED SECURITY, INSERT -- the appropriate
provision.]
[IF THE SECURITY IS CONVERTIBLE, INSERT -- Subject to and upon
compliance with the provisions of the Indenture, the Holder of this Security is
entitled, at his option, at any time on or after the opening of business on
__________, 19__ and on or before the close of business on __________, or in
case this Security or a portion hereof is called for redemption, then in respect
of this Security or such portion hereof until and including, but (unless the
Company defaults in making the payment due upon redemption) not after, the close
of business on the Redemption Date, to convert this Security (or any portion of
the principal amount hereof which is $ _________or an integral multiple
thereof), at the principal amount hereof, or of such portion, into fully paid
and nonassessable shares (calculated as to each conversion to the nearest 1/100
of a share) of Common Stock of the Company at a conversion price equal to
$________ aggregate principal amount of Securities for each share of Common
Stock (or at the current adjusted conversion price if an adjustment has been
made as provided in the Indenture) by surrender of this Security, duly endorsed
or assigned to the Company or in blank, to the Company at its office or agency
in ___________ accompanied by written notice to the Company that the Holder
hereof elects to convert this Security, or if less than the entire principal
amount hereof is to be converted, the portion hereof to be converted, and, in
case such surrender shall be made during the period from the close of business
on any Regular Record Date next preceding any Interest Payment Date to the
opening of business on such Interest Payment Date (unless this Security of the
portion hereof being converted has been called for redemption on a Redemption
Date within such period), also accompanied by payment in immediately available
funds or other funds acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the principal amount of this
Security then being converted. Subject to the aforesaid requirement for payment
and, in the case of a conversion after the Regular Record Date next preceding
any Interest Payment Date and on or before such Interest Payment Date, to the
right of the Holder of this Security (or any Predecessor
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<PAGE> 28
Security) of record at such Regular Record Date to receive an installment of
interest (with certain exceptions provided in the Indenture), no payment or
adjustment is to be made on conversion for interest accrued hereon or for
dividends on the Common Stock issued on conversion. No fractions of shares or
scrip representing fractions of shares will be issued on conversion, but instead
of any fractional interest the Company shall pay a cash adjustment as provided
in the Indenture. The conversion price is subject to adjustment as provided in
the Indenture. In addition, the Indenture provides that in case of certain
consolidations or mergers to which the Company is a party or the transfer of
substantially all of the assets of the Company, the Indenture shall be amended,
without the consent of any Holders of Securities, so that this Security, if then
outstanding, will be convertible thereafter, during the period this Security
shall be convertible as specified above, only into the kind and amount of
securities, cash and other property receivable upon the consolidation, merger or
transfer by a holder of the number of shares of Common Stock into which this
Security might have been converted immediately prior to such consolidation,
merger or transfer (assuming such holder of Common Stock failed to exercise any
rights of election and received per share the kind and amount received per share
by a plurality of non-electing shares), assuming, if such consolidation, merger
or transfer is prior to [insert date upon which the Securities first become
convertible], that this Security was convertible at the time of such
consolidation, merger or transfer at the initial conversion price specified
above as adjusted from __________________, to such time pursuant to the
Indenture.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
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As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The indenture and this Security shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts without regard to
conflicts of law principles thereof.
Section 204. ADDITIONAL PROVISIONS REQUIRED IN BOOK-ENTRY SECURITY.
Any Book-Entry Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in substantially the
following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances
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described in the Indenture and may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary."
Section 205. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: _______________
THE FIRST NATIONAL BANK OF CHICAGO
As Trustee
By _______________________________
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
The terms of each series of Securities shall be either (i) established in or
pursuant to a Board Resolution and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or (ii)
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series. The Securities of each such series may bear such
date or dates, be payable at such place or places, have such Stated Maturity or
Maturities, be issuable at such premium over a discount from their face value,
bear interest at such rate or rates, from such date or dates, payable in such
installments and on such dates and at such place or places to the Holders of
Securities registered as such on such Regular Record Dates, or may bear
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<PAGE> 31
no interest, and may be redeemable or repayable at such Redemption Price or
Prices, whether at the option of the Holder or otherwise, and upon such terms,
all as shall be provided for in or pursuant to the Board Resolution, and,
subject to Section 303, set forth, or determined in the manner provided, in an
Officers' Certificate, or in the supplemental indenture creating that series.
There may also be established in or pursuant to a Board Resolution and, subject
to Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, provision for:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(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 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of and premium, if
any, on the Securities of the series is payable or the method of
determination thereof and the date on which the Securities of the
series will mature;
(5) the price (expressed as a percentage of the aggregate
principal amount thereof) at which the Securities of the series will be
issued;
(6) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method of calculating such rate or
rates of interest, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined,
the Interest Payment Dates on which any such interest shall be payable
and the Regular Record Date for any interest payable on any Interest
Payment Date;
(7) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
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(8) the period or periods within which, the price or prices at
which, the currency or currencies (including currency units) in which
and the other terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the other terms
and conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(11) the currency, currencies or currency units in which payment
of the principal of and any premium and interest on any Securities of
the series shall be payable if other than the currency of the United
States of America and the manner of determining the equivalent thereof
in the currency of the United States of America for purposes of the
definition of "Outstanding" in Section 101;
(12) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with
reference to an index, formula or other method, the index, formula or
other method by which such amounts shall be determined;
(13) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the other terms and conditions upon which such
election is to be made;
(14) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion shall be determined;
(15) the application, if any, of Section 1502 or 1503 to the
Securities of any series and the terms and conditions under which the
Company may substitute money or U.S. Government Obligations for money
or U.S.
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Government Obligations previously deposited pursuant to Section 403,
provided that the substituted money or U.S. Government Obligations,
together with money or U.S. Government Obligations previously deposited
and not substituted for, will be sufficient to satisfy the Company's
payment obligations as contemplated by Section 1504(1);
(16) whether the Securities of the series shall be issued in
whole or in part in the form of one or more Book-Entry Securities and,
in such case, the Depositary with respect to such Book-Entry Security
or Securities and the circumstances under which any Book-Entry Security
may be registered for transfer or exchange, or authenticated and
delivered, in the name of a Person other than such Depositary or its
nominee, if other than as set forth in Section 305;
(17) any additional, modified or different covenants applicable
to one or more particular series of Securities;
(18) any Event of Default with respect to the Securities of such
series, in addition to any set forth herein, and any deletions or other
changes to the Events of Default set forth herein that shall be
applicable to the Securities of such series;
(19) the application, if any, of Article Fourteen to the
Securities of any Series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
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 Clerk or an Assistant Clerk of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the series.
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Section 302. DENOMINATIONS.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Clerk or one of its Assistant Clerks. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver or make available for
delivery such Securities; PROVIDED, HOWEVER, that, in the case of Securities of
a series that are not to be originally issued at one time, the Trustee shall
authenticate and deliver or make available for delivery such Securities from
time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to a Responsible Officer of the Trustee prior to the time of the first
authentication of Securities of such series. If the form or terms of the
Securities of the series have been established in or pursuant to one or more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
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(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have 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 and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the 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 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Book-Entry Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such series, authenticate and deliver or make available for delivery one or more
Securities in such form that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Book-Entry Security or Securities, or such
portion thereof as the Company shall specify in a Company Order, (ii) shall be
registered in the name of the Depositary for such Book-Entry Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear the legend substantially to the effect set forth in Section 204.
Unless otherwise established pursuant to Section 301, each Depositary
designated pursuant to Section 301 for a Book-Entry Security must, at the time
of its
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designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934 and any other applicable
statute or regulation. The Trustee shall have no responsibility to determine if
the Depositary is so registered. Each Depositary shall enter into an agreement
with the Trustee governing the respective duties and rights of such Depositary
and the Trustee with regard to Book-Entry Securities.
Unless otherwise provided in the form of Security for any series, each
Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver or make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver or make available for delivery in
exchange therefor one or more definitive Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to
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the same benefits under this Indenture as definitive Securities of such series
and tenor.
Section 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver or make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver or make available for delivery, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company, the Security Registrar or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Security Registrar and the Trustee duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
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The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 305 for Securities registered in the names
of Persons other than the Depositary for such Security or its nominee only if
(i) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Book-Entry Security or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (ii) the Company executes and delivers to the
Trustee a Company Order that such Book-Entry Security shall be so exchangeable
or (iii) there shall have occurred and be continuing an Event of Default with
respect to the Securities. Any Book-Entry Security that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Securities registered in
such names as such Depositary shall direct.
Notwithstanding any other provision in this Indenture, unless and until
it is exchanged in whole or in part for Securities that are not in the form of a
Book-Entry Security, a Book-Entry Security may not be transferred or exchanged
except as a whole by the Depositary with respect to such Book-Entry Security to
a nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary.
Section 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver or make available
for delivery in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise contemplated by Section 301 with respect to any
series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency maintained for such purpose pursuant
to Section 1002; PROVIDED, HOWEVER, that at the option of the Company, interest
on Securities of any series that bear interest may be paid (i) by check mailed
to the address of the Person entitled thereto as it shall appear on the Security
Register or (ii) by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be
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fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities of such series at his address as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
In the case of any Security which is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Security whose Maturity is prior to such Interest Payment Date), interest
whose Stated Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
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Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. CANCELLATION.
All Securities surrendered for payment, redemption, conversion,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee. All Securities so delivered and any Securities surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by the
Trustee and such cancellation shall be noted conspicuously on each such
Security. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Unless the Company directs otherwise by a Company
Order, all cancelled Securities held by the Trustee may be destroyed, but the
Trustee shall not be obligated to so destroy such Securities, and, if any such
cancelled Security is destroyed, the Trustee shall furnish to the Company a
certificate with respect to such destruction.
Section 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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Section 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
with respect to Securities of any series (except as to any surviving rights of
registration of transfer, exchange or replacement of such 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 with respect to such Securities, including, but not limited to,
Article Thirteen hereof, when
(1) either
(A) all such Securities theretofore authenticated and
delivered (other than (i) such Securities which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306 and (ii) such Securities for whose payment
money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
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(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company
and the Company, in the case of (B)(i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount in the currency or
currencies or currency unit or units in which such Securities are
payable sufficient to pay and discharge the entire indebtedness on
such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the
date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to such Securities have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402, Article Six and
the last paragraph of Section 1003 shall survive.
Section 402. APPLICATION OF TRUST MONEY.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
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ARTICLE FIVE
Remedies
Section 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless such event is either inapplicable to a particular series of Securities or
it is specifically deleted or modified in or pursuant to the supplemental
indenture or Board Resolution creating such series of Securities or in the form
of Security for such series:
(1) default in the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to Securities of
that series (other than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture
solely for the benefit of a series of Securities other than that
series), and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding
Securities of that series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is
a "Notice of Default" hereunder; or
(5) if an event of default as defined in any mortgage, indenture
or instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness for money borrowed of the
Company or any Subsidiary, whether such indebtedness now exists or
shall hereafter be created, if (A) such default either (1) results from
the failure to pay the principal of any such indebtedness at its stated
maturity or (2) relates to an obligation other than the obligation to
pay the principal of such indebtedness
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at its stated maturity and results in such indebtedness becoming or
being declared due and payable prior to the date on which it would
otherwise become due and payable, (B) the principal amount of such
indebtedness, together with the principal amount of any other such
indebtedness in default for failure to pay principal at stated maturity
or the maturity of which has been so accelerated, aggregates
$25,000,000 or more at any one time outstanding and (C) such
indebtedness is not discharged, or such acceleration is not rescinded
or annulled within a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of Outstanding Securities a written notice specifying such event
of default and requiring the Company to cause such acceleration to be
rescinded or annulled or to cause such indebtedness to be discharged
and stating that such notice is a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or state bankruptcy, insolvency, reorganization or other
similar law or the consent by it to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
any applicable Federal or State law, or the consent by it to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due; or
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(8) any other Event of Default provided with respect to
Securities of that series.
Section 502. ACCELERATION OF MATURITY: RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or, in the case of Original Issue Discount Securities or Indexed
Securities, such specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
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(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or
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deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities
in respect of which or for the benefit of which such money
has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Company.
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Section 507. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee before or during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
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Section 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306 and as otherwise provided in Section 507, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. CONTROL BY HOLDERS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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Section 513. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess reasonable
costs, including reasonable counsel fees and expenses, against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
PROVIDED that neither this Section nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company, the Trustee or the Holders of
10% aggregate principal amount of the Outstanding Securities of any series.
Section 515. WAIVER OF USURY, STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
The Trustee
Section 601. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. NOTICE OF DEFAULTS.
If a default occurs hereunder with respect to Securities of any series,
the Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 90 days after the occurrence thereof, and provided
further that, except in the case of any defaults of the character specified in
clauses (1), (2) and (3) of Section 501, the Trustee may refrain from giving any
notice of default to the Holders of Securities if the Trustee considers it in
the interests of such Holders to so refrain. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
Section 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and
the written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture; and
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(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.
Section 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Subject to the provisions of Section 608, the Trustee may become and
act as trustee under other indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee.
Section 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as shall be agreed in writing between the Company and the
Trustee for all services rendered by it hereunder (which compensation
shall not be limited by
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any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee, or any predecessor
Trustee, for, and to hold it harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence, bad
faith or willful misconduct on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance
of any of its powers or duties hereunder and the costs and expenses of
enforcing this right of indemnification.
Section 608. DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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Section 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and an office in the
Borough of Manhattan, The City of New York at which at any particular time the
Trustee's corporate trust business may be administered. If such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of any Federal or state supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such Person shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
106. Each notice shall
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include the name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
Section 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the
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Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. MERGER CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of
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authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, and if not an Affiliate of the
Trustee, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: ________________
THE FIRST NATIONAL BANK OF CHICAGO
As Trustee
By _______________________________
As Authenticating Agent
By _______________________________
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than June 30 and December 31 in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities of each series as of a date no more
than 15 days prior to the date such list is furnished, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list in similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
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EXCLUDING from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. REPORTS BY TRUSTEE.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each May 1 following the date of the first issuance deliver to
Holders a brief report, dated as of such May 1, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. REPORTS BY COMPANY.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; PROVIDED that any such
information, documents or reports required to be filed with the Commission
pursuant to
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Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with
the Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company, in a single transaction or through a series of related
transactions, shall not consolidate with or merge with or into any other Person
or transfer (by lease, assignment, sale or otherwise) all or substantially all
of its properties and assets to another Person or group of affiliated Persons,
unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the Person (if other than the Company) formed by such consolidation or into
which the Company is merged or to which all or substantially all of the
properties and assets of the Company are transferred (i) shall be a Corporation
organized and validly existing under the laws of the United States or any state
thereof or the District of Columbia and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all of the obligations of the Company
under the Securities and this Indenture 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 the
assumption contemplated by clause (a) above, no Event of Default, and no event
which, after notice or lapse of time, or both, would become an Event of Default,
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this Article
Eight and that all conditions precedent herein provided for relating to such
transaction have been satisfied.
Section 802. SUCCESSOR SUBSTITUTED.
The successor Person formed by such consolidation or into which the
Company is merged, or the successor Person to which such conveyance, transfer or
lease is made in accordance with Section 801, shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein, and
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thereafter, except in the case of a lease of its properties and assets
substantially as an entirety, the Company shall be discharged and released from
all obligations and covenants under this Indenture and the Securities. The
Trustee shall enter into a supplemental indenture to evidence the succession and
substitution of such successor Person and such discharge and release of the
Company.
ARTICLE NINE
Supplemental Indentures
Section 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to all
or any series of Securities (and if such additional Events of Default
are to be in respect of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of one or more specified series); or
(4) to add to or change any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Securities in bearer form, registrable or not registrable
as to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form or in the
form of Book-Entry Securities; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture and
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entitled to the benefit of such provision nor (B) modify the rights of
the Holder of any such Security with respect to such provision or (ii)
shall become effective only when there is no such Security Outstanding;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301 and to provide for the issuance
thereof; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) if allowed, without penalty under applicable laws and
regulations, to permit payment in the United States (including any of
the States thereof and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction of principal
of, or premium, if any, or interest, if any, on, securities in bearer
form or coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any
provision herein which is mistaken or may be inconsistent with any
other provision herein or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that such
action pursuant to this clause (10), other than with respect to a
mistaken provision, shall not adversely affect the interests of the
Holders of Securities of any series in any material respect.
Section 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount
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thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or adversely affect the
right of the Holder of any Security to require the Company to
repurchase such Security, or adversely affect the right to convert any
Security as contemplated by Article Fourteen or modify the provisions
of Article Thirteen or the definition of "Senior Debt" in a manner
adverse to the Holder of any Security in any material respect, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1006, except to increase any percentage set forth in such
Sections or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 1006, or the deletion of this
proviso, in accordance with the requirements of Sections 611(b) and
901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
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Section 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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ARTICLE TEN
Covenants
Section 1001. PAYMENT OF PRINCIPAL PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any premium
and interest on the Securities of that series in accordance with the terms of
such Securities and this Indenture.
Section 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to
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such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such
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money then remaining will be repaid to the Company free of the trust formerly
impressed upon it.
Section 1004. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, one of the signers of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Company, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its legal
existence.
Section 1006. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 801, with respect to the
Securities of any series if before or after the time for such compliance the
Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
Section 1007. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
If the Trustee is requested or required to send Form 1099 (or any
successor form) to Holders of Original Issue Discount Securities, the Company
shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on Outstanding Securities as of the end of
such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
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ARTICLE ELEVEN
Redemption of Securities
Section 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable in whole or in part
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
Section 1102. ELECTION TO REDEEM: NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution or Officers' Certificate. In case of any
redemption at the election of the Company of the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities to
be redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption a portion of the principal amount of any Security of
such series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination or any integral multiple thereof) for such
Security. If less than all of the Securities of such series and of a specified
tenor are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, or portion thereof, to
be redeemed and, if applicable, that interest thereon will cease to
accrue on and after said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) that there exists a conversion privilege, if applicable.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. DEPOSIT OF REDEMPTION PRICE.
Prior to 12:00 noon New York City time on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies in
which the
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Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof which are to be
redeemed on that date.
Section 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver or make available for delivery to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE TWELVE
Sinking Funds
Section 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been (a) redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, (b) converted pursuant to Article Fourteen or (c) cancelled or
delivered for cancellation pursuant to Section 309, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have not
been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Section 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to
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be redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Subordination of Securities
Section 1301. SECURITIES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to the provisions of
Article Four and Article Fifteen), the payment of the principal of (and premium,
if any) and interest on each and all of the Securities (including any amounts
payable upon a purchase of the Securities) are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all Senior Debt.
Section 1302. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Debt, or provision shall be made for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, whether in cash, property or
securities, on account of principal of (or premium, if any) or interest on or
other obligations in respect of the Securities or on account of any purchase or
other acquisition of Securities by the Company or any Subsidiary of the Company
(all such payments, distributions, purchases and acquisitions herein referred
to, individually and collectively, as a "Securities Payment"), and to that end
the holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any Securities Payment which may be payable or deliverable in
respect of the Securities in any such Proceeding.
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In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt is paid in full or payment thereof
provided for in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, and if such fact shall, at or prior to the time
of such Securities Payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such Securities Payment shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Company provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or readjustment which
stock or securities are subordinated in right of payment to all then outstanding
Senior Debt to substantially the same extent as the Securities are so
subordinated as provided in this Article. The consolidation of the Company with,
or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or transfer of all or
substantially all of its properties and assets as an entirety to another Person
upon the terms and conditions set forth in Article Eight shall not be deemed a
Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer such properties and assets as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article Eight.
Section 1303. NO PAYMENT WHEN SENIOR DEBT IN DEFAULT.
In the event that any Securities are declared due and payable before
their Stated Maturity, then in such event the holders of the Senior Debt
outstanding at the time such Securities become due and payable shall be entitled
to receive payment in full of all amounts due or to become due on or in respect
of all Senior Debt, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of such Senior
Debt, before the Holders of the Securities are entitled to receive any
Securities Payment.
In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Debt beyond any
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applicable grace period with respect thereto, or in the event that any event of
default with respect to any Senior Debt shall have occurred and be continuing
permitting the holders of such Senior Debt (or a trustee on behalf of the
holders thereof) to declare such Senior Debt due and payable prior to the date
on which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to exist
and such acceleration shall have been rescinded or annulled, or in the event any
judicial proceeding shall be pending with respect to any such default in payment
or event of default, then no Securities Payment shall be made; provided,
however, that nothing in this paragraph shall prevent the satisfaction of any
sinking fund payment in accordance with Article Twelve by delivering and
crediting pursuant to Section 1202 Securities which have been acquired (upon
redemption or otherwise).
In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such Securities Payment, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such Securities Payment shall
be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 1302 would be applicable.
Section 1304. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 1302 or under the
conditions described in Section 1303, from making Securities Payments, or (b)
the application by the Trustee of any money deposited with it hereunder to
Securities Payments or the retention of such Securities Payment by the Holders,
if, at the time of such application by the Trustee, it did not have knowledge
that such Securities Payment would have been prohibited by the provisions of
this Article.
Section 1305. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all amounts due or to become due on
or in respect of Senior Debt, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt,
the Holders of the Securities shall be subrogated to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of (and premium, if
any) and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the
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Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Debt by Holders of the Securities or the
Trustee, shall, as among the Company, its creditors other than holders of Senior
Debt and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.
Section 1306. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Securities
and creditors of the Company other than the holders of Senior Debt; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Debt to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
Section 1307. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1308. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
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Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any manner
for the collection of Senior Debt; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 1309. NOTICE TO TRUSTEE.
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 to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Debt (or a trustee therefor) to establish that
such notice has been given by a holder of Senior Debt (or a trustee therefor).
In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt 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 Debt held by such Person, the extent to
which such Person is entitled to participate in such payment or
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distribution and 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.
Section 1310. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 1311. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to Holders of Securities or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article or otherwise.
Section 1312. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; PRESERVATION OF
TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
Section 1313. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all
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intents and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee; provided, however, that Section 1312
shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.
Section 1314. DEFEASANCE OF THIS ARTICLE THIRTEEN.
The subordination of the Securities provided by this Article Thirteen
is expressly made subject to the provisions for defeasance or covenant
defeasance in Article Fifteen hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities then outstanding shall thereupon cease to be
subordinated pursuant to this Article Thirteen.
ARTICLE FOURTEEN
Conversion of Securities
Section 1401. APPLICABILITY OF ARTICLE.
If pursuant to Section 301 provision is made for the conversion of
Securities pursuant to this Article Fourteen, then the provisions of this
Article Fourteen, with such modifications thereto as may be specified pursuant
to Section 301 with respect to any Securities, shall be applicable to the
Securities of such series.
Section 1402. CONVERSION PRIVILEGE AND CONVERSION PRICE.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof which is $1,000 or an integral multiple of $1,000 may be
converted at the principal amount thereof, or of such portion thereof, into
fully paid and nonassessable shares (calculated as to each conversion to the
nearest 1/100 of a share) of Common Stock of the Company, at the conversion
price, determined as hereinafter provided, in effect at the time of conversion.
Such conversion right shall commence at the opening of business on the date
provided for in the Securities with respect to such Securities and expire at the
close of business on the date provided for in the Securities with respect to
such Securities. In case a Security or portion thereof is called for redemption,
such conversion right in respect of the Security or portion so called shall
expire at the close of business on the Business Day prior to the Redemption
Date, unless the Company defaults in making the payment due upon redemption.
The price at which shares of Common Stock shall be delivered upon
conversion is herein referred to as the "conversion price". The conversion price
shall be adjusted in certain instances as provided in Section 1405.
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Section 1403. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to Section 1002, accompanied by written
notice to the Company at such office or agency that the Holder elects to convert
such Security or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. Securities surrendered for
conversion during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date shall (except in the case of Securities or portions
thereof which have been called for redemption on a Redemption Date within such
period) be accompanied by payment in immediately available funds or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of Securities being surrendered
for conversion. Except as provided in the preceding sentence and subject to the
third paragraph of Section 307, no payment or adjustment shall be made upon any
conversion on account of any interest accrued on the Securities surrendered for
conversion or on account of any dividends on the Common Stock issued upon
conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 1404.
In the case of any Security which is converted in part only, upon such
conversion 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 authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
Section 1404. FRACTIONS OF SHARES.
No fractional shares of Common Stock shall be issued upon conversion of
Securities. If more than one Security shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount
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of the Securities (or specified portions thereof) so surrendered. Instead of any
fractional share of Common Stock which would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction in an amount
equal to the same fraction of the market price per share of Common Stock (as
determined by the Board of Directors or in any manner prescribed by the Board of
Directors) at the close of business on the day of conversion.
Section 1405. ADJUSTMENT OF CONVERSION PRICE.
(1) In case at any time after the date of the issuance of the
applicable Securities, the Company shall pay or make a dividend or
other distribution on any class of capital stock of the Company in
Common Stock, the conversion price in effect at the opening of business
on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution
shall be reduced by multiplying such conversion price by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or
other distribution, such reduction to become effective immediately
after the opening of business on the day following the date fixed for
such determination. For the purposes of this paragraph (1), the number
of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions
of shares of Common Stock. The Company will not pay any dividend or
make any distribution on shares of Common Stock held in the treasury of
the Company.
(2) In case at any time after the date of the issuance of the
applicable Securities, the Company shall issue rights or warrants to
all holders of its Common Stock (not being available on an equivalent
basis to Holders of the Securities upon conversion) entitling them to
subscribe for or purchase shares of Common Stock at a price per share
less than the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date fixed
for the determination of stockholders entitled to receive such rights,
options or warrants (other than pursuant to a dividend reinvestment
plan), the conversion price in effect at the opening of business on the
day following the date fixed for such determination shall be reduced by
multiplying such conversion price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate of the offering price of the
total number of shares of Common Stock so offered for subscription or
purchase would
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purchase at such current market price and the denominator shall be the
number of shares of Common Stock outstanding at the close of business
on the date fixed for such determination plus the number of shares of
Common Stock so offered for subscription or purchase, such reduction to
become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of
this paragraph (2), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not issue any rights or warrants in respect of shares of
Common Stock held in the treasury of the Company.
(3) In case at any time after the date of the issuance of the
applicable Securities, outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
conversion price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately reduced, and, conversely, in case outstanding shares
of Common Stock shall each be combined into a smaller number of shares
of Common Stock, the conversion price in effect at the opening of
business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(4) In case at any time after the date of the issuance of the
applicable Securities, the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any rights
or warrants referred to in paragraph (2) of this Section, any dividend
or distribution paid in cash out of the retained earnings of the
Company and any dividend or distribution referred to in paragraph (1)
of this Section), the conversion price shall be adjusted so that the
same shall equal the price determined by multiplying the conversion
price in effect immediately prior to the close of business on the date
fixed for the determination of stockholders entitled to receive such
distribution by a fraction of which the numerator shall be the current
market price per share (determined as provided in paragraph (8) of this
Section) of the Common Stock on the date fixed for such determination
less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
Board Resolution filed with the Trustee) of the portion of the assets
or evidences of indebtedness so distributed applicable to one share of
Common Stock and the denominator shall be such current market price per
share of the Common Stock, such adjustment to become effective
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immediately prior to the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive
such distribution.
(5) In case at any time after the date of the issuance of the
applicable Securities, the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed upon a merger or consolidation to which Section
1412 applies or as part of a distribution referred to in paragraph (4)
of this Section) in an aggregate amount that, combined together with:
(A) the aggregate amount of any other such all-cash
distributions made to all holders of its Common Stock within
the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant
to this paragraph (5) has been made, and
(B) the aggregate of any cash plus the fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution) of
consideration payable in respect of any tender offer by the
Company or any of its subsidiaries for all or any portion of
the Common Stock concluded within the 12 months preceding
the date of payment of such distribution and in respect of
which no adjustment pursuant to paragraph (6) of this
Section has been made,
(the amount of such cash distribution together with the amounts
described in clauses (A) and (B) above being referred to herein as the
"Aggregate Cash Distribution Amount") exceeds 15% of the product of
(I) the current market price per share of the Common Stock on the date
for the determination of holders of shares of Common Stock entitled to
receive such distribution, times (II) the number of shares of Common
Stock outstanding on such date (the amount by which the Aggregate Cash
Distribution Amount exceeds 15% of the product of the amounts
described in clauses (I) and (II) above being referred to herein as
the "Excess Amount"), then, and in each such case, immediately after
the close of business on such date for determination, the conversion
price shall be decreased in accordance with the following formula:
M - (EA/O)
AC = CP x ----------------
M
Where:
AC = the adjusted conversion price.
CP = the conversion price in effect immediately prior to the
close of business on the date fixed for determination of the
stockholders entitled to receive the distribution.
M = the current market price per share (determined as provided
in paragraph (8) of this Section) of the Common Stock on the
date fixed for determination of the stockholders entitled to
receive the distribution.
EA = the Excess Amount.
O = the number of shares of Common Stock outstanding on the date
fixed for determination of the stockholders entitled to
receive the distribution.
(6) In case at any time after the date of the issuance of the
applicable Securities, a tender offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and
such tender offer (as amended upon the expiration thereof) shall
require the payment to stockholders (based on the acceptance (up to
any maximum specified in the terms of the tender offer) of Purchased
Shares (as defined below)) of an aggregate consideration having a fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution)
that combined together with:
(A) the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination
shall be conclusive and described in a Board Resolution), as
of the expiration of such tender offer, of consideration
payable in respect of any other tender offer, by the Company
or any Subsidiary for all or any portion of the Common Stock
expiring within the 12 months preceding the expiration of
such tender offer and in respect of which no adjustment
pursuant to this paragraph (6) has been made, and
(B) the aggregate amount of any all-cash distributions referred
to in paragraph (5) of this Section 1405 made to all
holders of the Company's Common Stock within 12 months
preceding the expiration of such tender offer and in respect
of which no adjustment pursuant to paragraph (5) of this
Section has been made,
exceeds 15% of the product of (I) the current market price per share
of the Common Stock (determined as provided in paragraph (8) of this
Section) as of the last time (the "Expiration Time") tenders could
have been made pursuant to such tender offer (as it may be amended),
times (II) the number of shares of Common Stock outstanding (including
any tendered shares) on the Expiration Time, then, and in each such
case, immediately prior to the opening of business on the day after
the date of the Expiration Time, the conversion price shall be
adjusted in accordance with the following formula:
(M x O) - C
AC = CP x ---------------
M x (O - TS)
Where:
AC = the adjusted conversion price.
CP = the conversion price immediately prior to close of
business on the date of the Expiration Time.
M = the current market price per share of the Common
Stock (determined as provided in paragraph (8) of
this Section) on the date of the Expiration Time.
O = the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration
Time.
C = the amount of cash plus the fair market value (as
determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution) of the aggregate consideration
payable to stockholders based on the acceptance (up
to any maximum specified in the terms of the tender
offer) of Purchased Shares (as defined below).
TS = the number of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares
deemed so accepted up to any such maximum, being
referred to as the "Purchased Shares").
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(7) The reclassification of Common Stock into securities
including securities other than Common Stock (other than any
reclassification upon a consolidation or merger to which Section 1412
applies) shall be deemed to involve (a) a distribution of such
securities other than Common Stock to all holders of Common Stock (and
the effective date of such reclassification shall be deemed to be "the
date fixed for the determination of stockholders entitled to receive
such distribution" and "the date fixed for such determination" within
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the meaning of paragraph (4) of this Section), and (b) a subdivision or
combination, as the case may be, of the number of shares of Common
Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter
(and the effective date of such reclassification shall be deemed to be
"the day upon which such subdivision becomes effective" or "the day
upon which such combination becomes effective", as the case may be, and
"the day upon which such subdivision or combination becomes effective"
within the meaning of paragraph (3) of this Section).
(8) For the purpose of any computation under paragraphs (2),
(4), (5) and (6) of this Section, the current market price per share of
Common Stock on any date shall be deemed to be the average of the daily
closing prices for the five consecutive Trading Days selected by the
Company commencing not more than 20 Trading Days before, and ending not
later than the earlier of the day in question and the day before the
"ex" date with request to the issuance or distribution requiring such
computation. The closing price for each day shall be the last reported
sales price regular way or, in case no such reported sale takes place
on such day, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange or, if the
Common Stock is not listed or admitted to trading on such Exchange, on
the principal national securities exchange on which the Common Stock is
listed or admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the Nasdaq National Market or,
if the Common Stock is not listed or admitted to trading on any
national securities exchange or quoted on the Nasdaq National Market,
the average of the closing bid and asked prices in the over-the-counter
market as furnished by any New York Stock Exchange member firm selected
from time to time by the Company for that purpose. For purposes of this
paragraph, the term "'ex' date", when used with respect to any issuance
or distribution, means the first date on which the Common Stock trades
regular way on such exchange or in such market without the right to
receive such issuance or distribution.
(9) No adjustment in the conversion price shall be required
unless such adjustment (plus any adjustments not previously made by
reason of this paragraph (9)) would require an increase or decrease of
at least 1% in such price; provided, however, that any adjustments
which by reason of this paragraph (9) are not required to be made shall
be carried forward and taken into account in any subsequent adjustment.
All calculations under this paragraph (9) shall be made to the nearest
cent.
(10) The Company may make such reductions in the conversion
price, in addition to those required by this Section, as it considers
to be advisable in
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order to avoid or diminish any income tax to any holders of shares of
Common Stock resulting from any dividend or distribution of stock or
issuance of rights or warrants to purchase or subscribe for stock or
from any event treated as such for income tax purposes or for any other
reasons. The Company shall have the power to resolve any ambiguity or
correct any error in this paragraph (10) and its actions in so doing
shall be final and conclusive.
Section 1406. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price in
accordance with Section 1405 and shall prepare an Officers'
Certificate, one of the signatories of which shall be the Treasurer of
the Company, setting forth the adjusted conversion price and showing in
reasonable detail the facts upon which such adjustment is based, and
such certificate shall forthwith be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to
Section 1002; and
(b) a notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price shall
forthwith be required, and as soon as practicable after it is required,
such notice shall be mailed by the Company to all Holders at their last
addresses as they shall appear in the Security Register.
Section 1407. NOTICE OF CERTAIN CORPORATE ACTION.
In case at any time after the date 20 days prior to the date on which
the Securities first become convertible:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of
its retained earnings; or
(b) the Company shall authorize the granting to the holders of
its Common Stock of rights or warrants to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding shares of
Common Stock), or of any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
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(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be mailed to all Holders at their last addresses as they shall appear
in the Security Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, rights or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights or warrants are to
be determined, or (y) the date on which such reclassification, consolidation,
merger, share exchange, sale, transfer, dissolution, liquidation or winding up
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 shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, sale, transfer,
dissolution, liquidation or winding up. Neither the failure to give such notice
nor any defect therein shall affect the legality or validity of the proceedings
described in clauses (a) through (d) of this Section 1407. If at the time the
Trustee shall not be the conversion agent, a copy of such notice shall also
forthwith be filed by the Company with the Trustee.
Section 1408. COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Securities.
Section 1409. TAXES ON CONVERSIONS.
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of Securities
pursuant hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that of the Holder of
the Security or Securities to be converted, and no such issue or delivery shall
be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.
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Section 1410. COVENANT AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 1409, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
Section 1411. CANCELLATION OF CONVERTED SECURITIES.
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
Section 1412. PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR SALE OF ASSETS.
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company
(other than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company)
or any sale or transfer of all or substantially all of the assets of the
Company, the Person formed by such consolidation or resulting from such merger
or which acquires such assets, as the case may be, shall execute and deliver to
the Trustee a supplemental indenture providing that the Holder of each Security
then outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 1402, to convert such
Security only into the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of shares of Common Stock of the Company into which such Security might
have been converted immediately prior to such consolidation, merger, sale or
transfer, assuming such holder of Common Stock of the Company (i) is not a
Person with which the Company consolidated or into which the Company merged or
which merged into the Company or to which such sale or transfer was made, as the
case may be ("constituent Person"), or an Affiliate of a constituent Person and
(ii) failed to exercise his rights of election, if any, as to the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, sale or transfer (provided that if the kind or amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer is not the same for each share of Common Stock of the Company held
immediately prior to such consolidation, merger, sale or transfer by other than
a constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("non-electing share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares), and assuming, if such
consolidation, merger, sale or transfer is prior to the date upon
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which the Securities first become convertible, that the Securities were
convertible at the time of such consolidation, merger, sale or transfer at the
initial conversion price specified in Section 1402 as adjusted from the date of
the issuance of the applicable Securities to such time pursuant to Section 1405.
Such supplemental indenture shall provide for adjustments which, for events
subsequent to the effective date of such supplemental indenture, shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article. The above provisions of this Section shall similarly apply to
successive consolidations, mergers, sales or transfers.
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
Section 1501. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO EFFECT DEFEASANCE OR
COVENANT DEFEASANCE.
Unless pursuant to Section 301 provision is made that either or both
(a) defeasance of the Securities of a series under Section 1502 or (b) covenant
defeasance of the Securities of a series under Section 1503 shall not be
applicable to the Securities of any series, then the provisions of such Section
or Sections, as the case may be, together with the other provisions of this
Article Fifteen, with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities, shall be applicable to the
Securities of such series, and the Company may at its option by Board
Resolution, at any time, with respect to the Securities of such series, elect to
have either Section 1502 (if applicable) or Section 1503 (if applicable) applied
to the Outstanding Securities of such series upon compliance with the conditions
set forth below in this Article Fifteen.
Section 1502. DEFEASANCE AND DISCHARGE.
Upon the Company's exercise of its option to have this Section applied
to any series of Securities the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of such series,
and the provisions of Article Thirteen hereof shall cease to be effective, on
and after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by and obligations under the Outstanding Securities of such series
which shall thereafter be deemed to be "Outstanding" only for the purposes of
the Sections of this Indenture referred to in clauses (A) and (B) of this
Section, and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Securities of
such series to receive, solely from the trust fund described in Section 1504 as
more fully set forth in such Section, payments of the principal of
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(and premium, if any) and interest on such Securities when such payments are
due, and (B) the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003 and such obligations as shall be ancillary
thereto. Subject to compliance with this Article Fifteen, the Company may
exercise its option under this Section 1502 notwithstanding the prior exercise
of its option under Section 1503 with respect to the Securities of such series.
Following a defeasance, payment of such Securities may not be accelerated
because of an Event of Default.
Section 1503. COVENANT DEFEASANCE.
Upon the Company's exercise of its option (if any) to have this Section
applied to any series of Securities, the Company shall be released from its
obligations under Section 801 (and any covenant made applicable to such
Securities pursuant to Section 301), the occurrence of an event specified in
Sections 501(4) through 501(8) (and any other Event of Default applicable to
such Securities that are determined pursuant to Section 301 to be subject to
this provision) shall not be deemed to be an Event of Default with respect to
the Outstanding Securities of such series and the provisions of Article Thirteen
hereof shall cease to be effective on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and such
Securities shall thereafter be deemed not to be "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Section 801 (and any other
covenant made applicable to such Security pursuant to Section 301), but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to the Outstanding
Securities of such series, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or such other covenant whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or such other covenant or by
reason of any reference in any such Section or such other covenant to any other
provision herein or in any other document, but the remainder of this Indenture
and such Securities shall be unaffected thereby.
Section 1504. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions precedent to application of
either Section 1502 or Section 1503 to the Outstanding Securities of or within
such series:
(1) The Company shall have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of
Section 609 who shall agree to comply with the provisions of this
Article Fifteen 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, (A) money in an amount (in such currency, currencies
or currency units in which such Securities are then specified as
payable at Maturity), or (B) U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of
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any payment, money in an amount, or (C) a combination thereof in an
amount, 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, (i) the principal of (and premium, if any) and interest on
the Outstanding Securities of such series on the Maturity of such
principal, premium, if any, or interest and (ii) any mandatory sinking
fund payments applicable to such Securities on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and such Securities. Before such a deposit the Company may
make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article Eleven,
which shall be given effect in applying the foregoing. For this
purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include
a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to
any such U.S. Government Obligation or a specific payment of principal
of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depositary 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 depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by
such depositary receipt.
(2) 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.
(3) In the case of an election under Section 1502, the Company
shall have delivered to the Trustee an Opinion of Counsel 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
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. Such opinion shall be
based upon at least one of the following authorities (issued, enacted
or promulgated after the date of this Indenture), substantially on
point and to the foregoing effect: (i) a public ruling of the Internal
Revenue Service, (ii) a private ruling of the Internal Revenue Service
issued to the Company with respect to the Securities, (iii) a provision
of the Internal Revenue Code,
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(iv) a final regulation promulgated by the Department of the Treasury,
or (v) a change in the applicable Federal income tax law.
(4) In the case of an election under Section 1503, 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.
Section 1505. DEPOSITED MONEY AND U.S. GOVERNMENT OBLIGATIONS TO BE HELD IN
TRUST; OTHER MISCELLANEOUS PROVISIONS.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (collectively, for purposes of this
Section 1505, the "Trustee") pursuant to Section 1504 in respect of the
Outstanding Securities of such 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 (but not
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) and interest, but such
money need not be segregated from other funds except to the extent required by
law. Money so held in trust shall not be subject to the provisions of Article
Thirteen.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1504 which in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1506. COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
EG&G, INC.
By: ______________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: ______________________________
Name:
Title:
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STATE OF ______________)
) ss.:
COUNTY OF _____________)
On ____________, 199_, before me, ____________, Notary Public,
personally appeared __________________, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
_________________________________________
Notary Public
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STATE OF _____________)
) ss.:
COUNTY OF ____________)
On ____________, 199_, before me personally came ________________, to
me known, who, being by me duly sworn, did depose and say that he/she is
__________ of ________________________, one of the companies described in and
which executed the foregoing instrument; that it was so affixed by authority of
the Board of Directors of said corporation, and that he/she signed his/her name
thereto by like authority of the Board of Directors of said corporation.
_________________________________________
Notary Public
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Exhibit 23.1
ARTHUR ANDERSEN LLP
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated January 23, 1999
(except with respect to the matters discussed in Note 26, for which the date is
March 8, 1999) included in EG&G, Inc.'s Annual Report on Form 10-K for the year
ended January 3, 1999 and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Boston, Massachusetts
March 30, 1999
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated April 9, 1998, relating to the consolidated financial statements of Lumen
Technologies, Inc. (formerly BEC Group, Inc.), which is included in the Current
Report on Form 8-K/A of EG&G, Inc. dated March 30, 1999. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Dallas, Texas
April 1, 1999
<PAGE> 1
Exhibit 23.4
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-3 of our report dated
December 1, 1997 covering the historical statements of ILC Technology, Inc.
included in EG&G, Inc.'s Form 8-K/A and to all references to our Firm included
in this registration statement.
/s/ Arthur Andersen LLP
San Jose, California
March 30, 1999
