<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 10, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ENGELHARD CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 22-1586002
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
101 WOOD AVENUE
ISELIN, NEW JERSEY 08830
(908) 205-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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ARTHUR A. DORNBUSCH, II
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ENGELHARD CORPORATION
101 WOOD AVENUE
ISELIN, NEW JERSEY 08830
(908) 205-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
JAMES J. CLARK
CAHILL GORDON & REINDEL
80 PINE STREET
NEW YORK, NEW YORK 10005
(212) 701-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement, as determined by
market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT PRICE FEE
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<S> <C> <C> <C> <C>
Debt Securities........ $200,000,000(1) (2) $200,000,000(3) $68,966(4)
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Common Stock (par value
$1.00 per share)...... (1) (2) (3) --
</TABLE>
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(1) The aggregate principal amount of Debt Securities registered hereunder will
be greater if any Debt Securities are issued at an original issue discount.
Debt Securities may be denominated in U.S. Dollars or the equivalent in
other currencies or currency equivalents. There is also being registered
hereunder an indeterminate number of shares of Common Stock as may be
issuable upon conversion of certain Debt Securities registered hereby.
(2) The proposed maximum offering price per unit will be determined, from time
to time, by the Registrant in connection with the issuance by the
Registrant of the securities registered hereunder.
(3) Estimated solely for purposes of computing the registration fee. No
separate consideration will be received for shares of Common Stock issued
upon conversion of Debt Securities.
(4) The registration fee has been calculated in accordance with Rule 457(o)
under the Securities Act of 1933, as amended, and reflects the offering
price rather than the principal amount of any Debt Securities issued at a
discount.
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, AS AMENDED, 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>
SUBJECT TO COMPLETION, DATED APRIL 10, 1995
$200,000,000
ENGELHARD CORPORATION
DEBT SECURITIES
Engelhard Corporation ("Engelhard" or the "Company") may offer, from time to
time, in one or more series, its unsecured senior debt securities (the "Senior
Debt Securities") and its unsecured subordinated debt securities (the
"Subordinated Debt Securities" and, together with the Senior Debt Securities,
the "Debt Securities"). The Debt Securities may be convertible into shares of
Common Stock, par value $1.00 per share ("Common Stock"), of the Company and,
to the extent applicable, references herein to the Debt Securities also include
the Common Stock issuable upon any such conversion or exchange. The Debt
Securities will have a maximum aggregate offering price of $200,000,000 (or the
equivalent thereof in foreign currency or currency units) and will be offered
on terms to be determined by market conditions at the time of sale. The Debt
Securities may be offered separately or together, in separate series, in
amounts and at prices and on terms to be set forth in an accompanying
prospectus supplement (a "Prospectus Supplement"). In addition, the specific
terms of the Debt Securities in respect of which this Prospectus is being
delivered, and whether such Debt Securities will be listed on a national
securities exchange, will be set forth in an accompanying Prospectus
Supplement.
The Senior Debt Securities, if issued, will rank equally and ratably with all
other unsecured and unsubordinated indebtedness of the Company, and the
Subordinated Debt Securities, if issued, will be unsecured and subordinated to
all present and future Senior Indebtedness (as defined) of the Company. See
"Description of Securities."
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The Debt Securities may be sold directly, through agents from time to time or
through underwriters and/or dealers. If any agent of the Company or any
underwriter is involved in the sale of the Debt Securities, the name of such
agent or underwriter and any applicable commission or discount will be set
forth in the accompanying Prospectus Supplement. See "Plan of Distribution."
-----------
This Prospectus may not be used to consummate sales of Debt Securities unless
accompanied by a Prospectus Supplement.
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THE DATE OF THIS PROSPECTUS IS , 1995.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY STATE.
<PAGE>
NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER, OR AGENT. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY DEBT
SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH THE OFFER OR SOLICITATION IS
NOT AUTHORIZED OR IN WHICH THE PERSON MAKING THE OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE THE OFFER OR
SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission") relating to its business, financial position,
results of operations and other matters. Such reports and other information can
be inspected and copied at the Public Reference Section maintained by the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and at its Regional Offices located at Northwestern Atrium Center, 500 West
Madison Street, Chicago, Illinois 60661, and 7 World Trade Center, 15th Floor,
New York, New York 10048. Copies of such material can also be obtained from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Common Stock of the Company is
listed on the New York Stock Exchange and such material can also be inspected
at the office of such exchange at 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement (the
"Registration Statement") under the Securities Act of 1933, as amended, with
respect to the Debt Securities covered by this Prospectus. This Prospectus does
not contain all the information set forth in the Registration Statement,
certain parts of which are omitted in accordance with the rules and regulations
of the Commission. Reference is made to the Registration Statement and to the
exhibits relating thereto for further information with respect to the Company
and the Debt Securities covered by this Prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference herein its Annual Report on Form
10-K for the fiscal year ended December 31, 1994. All documents filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Prospectus and before the termination of the offering of
the securities offered hereby shall be deemed incorporated herein by reference,
and such documents shall be deemed to be a part hereof from the date of filing
such documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of any such person, a
copy of any or all of the above documents incorporated herein by reference
(other than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into the documents that this Prospectus
incorporates). Written or oral requests should be directed to: Investor
Relations, Engelhard Corporation, 101 Wood Avenue, Iselin N.J. 08830, telephone
number (908) 205-6000.
2
<PAGE>
THE COMPANY
Engelhard develops, manufactures and markets technology-based specialty
chemical products and engineered materials for a wide spectrum of industrial
customers and provides services to precious metals customers. The Company
operates on a worldwide basis with corporate and operating headquarters and
principal manufacturing facilities and mineral reserves in the United States
with other operations conducted in the European Community, the Russian
Federation and the Asia-Pacific region.
The Company's businesses are organized into three segments: Catalysts and
Chemicals, Pigments and Additives, and Engineered Materials and Precious Metals
Management.
The Catalysts and Chemicals segment develops, manufactures and markets a wide
range of catalysts and related products and processes for the automotive, off-
road vehicle, aircraft, power generation, petroleum refining, chemical,
petrochemical, pharmaceutical and food processing industries, among others. The
Company's products are used by customers in these industries to reduce
emissions, achieve desired manufacturing yields and improve quality and/or
cost-efficiency. The segment comprises four principal product groups:
Automotive Emission Systems, used for automotive exhaust emission control,
pollution abatement in off-road vehicles and high altitude aircraft ozone
removal; Stationary Source Emission Control, used in pollution abatement in
power generation and process industries; Petroleum Catalysts, used by refiners
to treat and make gasoline, diesel fuel, heating oil, lubricants, and other
energy products from crude oil; and Chemical Catalysts, used in the production
of a variety of products or intermediates, including synthetic fibers,
fragrances, antibiotics, vitamins, polymers, plastics, detergents, fuels and
lube oils, solvents, oleochemicals and edible products.
The Pigments and Additives segment develops, manufactures and markets coating
and extender pigments for the paper industry and color pigments and specialty
minerals for a variety of industries. The segment comprises two principal
product groups: Paper Pigments and Chemicals, used principally to make coated
and uncoated paper; and Specialty Minerals and Colors providing colors used
primarily in paints and coatings, plastics, rubber and printing inks, and
specialty mineral products to the plastics, rubber, wire and cable, coatings,
inks and adhesives industries.
The Engineered Materials and Precious Metals Management segment develops,
manufactures and markets fabricated products and coatings based on precious
metals for a broad spectrum of industries. This segment also engages in
precious metals management on behalf of Engelhard businesses and customers that
use precious metals. The segment comprises the Engineered Materials Group and
the Precious Metals Management Group. The products of the Engineered Materials
Group consist primarily of metal-based materials such as temperature-sensing
devices, crucibles, bushings, gauze, precious metals coating and electroplating
materials, conductive pastes and powders, brazing alloys and precious metal
wire, sheet, and tubing. These products are used in the manufacture of
automotive components, industrial devices, glass and glass fiber, ceramics,
chemicals, instruments, control devices, fine jewelry, dental and medical
supplies, hardware, furniture and air conditioners. The Engineered Materials
Group also provides refining services to internal and external customers.
Precious metals refining is an integral part of these businesses. The Precious
Metals Management Group secures and manages precious metals in world markets to
support the Company and its customers. It also participates in refining of
precious metals and marketing of energy-related services.
Engelhard was organized under the laws of the State of Delaware in 1938. The
Company's address is 101 Wood Avenue, Iselin, New Jersey 08830, and its
telephone number is (908) 205-6000. Unless otherwise indicated or the context
otherwise requires, all references to "Engelhard" or the "Company" herein shall
be deemed to refer to Engelhard Corporation and its consolidated subsidiaries.
USE OF PROCEEDS
Except as otherwise described in the accompanying Prospectus Supplement, the
net proceeds from the sale of the Debt Securities will be used by the Company
for general corporate purposes, which may include the reduction of outstanding
indebtedness, working capital increases, capital expenditures and acquisitions.
3
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for the
Company for the periods indicated. In the calculation of the Company's ratio of
earnings to fixed charges, "earnings" consist of income from continuing
operations before income taxes and fixed charges (excluding capitalized
interest) and "fixed charges" consist of interest expense, including the
interest portion of rental obligations deemed representative of the interest
factor.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
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1994 1993 1992 1991 1990
---- ---- ---- ---- ----
<S> <C> <C> <C> <C>
6.79 (a) 7.26 5.45 3.96
</TABLE>
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(a) For fiscal 1993, earnings were insufficient to cover fixed charges by
approximately $8.3 million. Earnings in 1993 were negatively impacted by a
charge of approximately $148 million for the realignment and consolidation
of businesses and environmental matters. Without such charge, the ratio of
earnings to fixed charges for fiscal 1993 would have been 7.14.
DESCRIPTION OF SECURITIES
Senior Debt Securities may be issued from time to time in one or more series
under an indenture (the "Senior Indenture"), between the Company and The Chase
Manhattan Bank, N.A. (the "Senior Trustee"). The Senior Indenture has been
filed as an exhibit to the Registration Statement of which this Prospectus is a
part. Subordinated Debt Securities may be issued from time to time in one or
more series under an indenture (the "Subordinated Indenture") between the
Company and a trustee to be identified in the applicable Prospectus Supplement
(the "Subordinated Trustee"). The Subordinated Indenture has been filed as an
exhibit to the Registration Statement of which this Prospectus is a part. The
Senior Indenture and the Subordinated Indenture are sometimes referred to
collectively as the "Indentures," and the Senior Trustee and the Subordinated
Trustee are sometimes referred to collectively as the "Trustees." The
statements under this caption are brief summaries of certain provisions
contained in the Indentures, do not purport to be complete and are qualified in
their entirety by reference to the Indentures, including the definitions
therein of certain terms, copies of which are included or incorporated by
reference as exhibits to the Registration Statement of which this Prospectus is
a part. Capitalized terms used herein and not defined shall have the meanings
assigned to them in the relevant Indenture. The particular terms of the Debt
Securities and any variations from such general provisions applicable to any
series of Debt Securities will be set forth in the Prospectus Supplement with
respect to such series.
GENERAL
Each Indenture provides for the issuance of Debt Securities in one or more
series with the same or various maturities at par or at a discount. Any Debt
Securities bearing no interest or interest at a rate which at the time of
issuance is below market rates will be sold at a discount (which may be
substantial) from their stated principal amount. Federal income tax
consequences and other special considerations applicable to any such discounted
Debt Securities ("Discounted Securities") will be described in the Prospectus
Supplement relating thereto. Neither Indenture limits the amount of Debt
Securities that can be issued thereunder.
Reference is made to the Prospectus Supplement for the following terms, if
applicable, of the Debt Securities offered thereby: (1) the designation,
aggregate principal amount, currency or composite currency and denominations;
(2) the price at which such Debt Securities will be issued; (3) any index,
formula or other method used for determining amounts of principal or interest
payable on the Debt Securities; (4) the maturity date and other dates, if any,
on which principal will be payable; (5) the interest rate (which may be fixed
or variable), if any, and the date or dates from which interest will accrue and
on which interest will be payable, and the record dates for the payment of
interest; (6) the manner of paying principal or interest; (7) the place or
places where principal and interest will be payable; (8) the terms of any
mandatory or optional redemption by the Company; (9) the terms of any
redemption at the option of Holders; (10) whether such Debt Securities
4
<PAGE>
are to be issuable as registered Debt Securities, bearer Debt Securities, or
both, and whether and upon what terms registered Debt Securities may be
exchanged for bearer Debt Securities and vice versa; (11) whether such Debt
Securities are to be represented in whole or in part by a Debt Security in
global form and, if so, the identity of the depositary ("Depositary") for any
global Debt Security; (12) any tax indemnity provisions; (13) if the Debt
Securities provide that payments of principal or interest may be made in a
currency other than that in which Debt Securities are denominated, the manner
for determining such payments; (14) the portion of principal payable upon
acceleration of a Discounted Security; (15) whether and upon what terms Debt
Securities may be defeased; (16) any events of default or restrictive covenants
in addition to or in lieu of those set forth in the Indentures; (17) provisions
for electronic issuance of Debt Securities or for Debt Securities in
uncertificated form; (18) the terms, if any, upon which the Debt Securities
will be convertible into or exchangeable for Common Stock of the Company; and
(19) any additional provisions or other special terms not inconsistent with the
provisions of the Indentures, including any terms that may be required or
advisable under United States or other applicable laws or regulations, or
advisable in connection with the marketing of the Debt Securities.
RANKING OF DEBT SECURITIES
The Senior Debt Securities will be unsecured and will rank equally and
ratably with other unsecured and unsubordinated debt of the Company.
The obligations of the Company pursuant to any Subordinated Debt Securities
will be subordinate in right of payment to all Senior Indebtedness of the
Company. "Senior Indebtedness" of the Company is defined to mean the principal
of (and premium, if any) and interest on (a) any and all indebtedness and
obligations of the Company (including indebtedness of others guaranteed by the
Company) other than the Subordinated Debt Securities, whether or not contingent
and whether outstanding on the date of the Subordinated Indenture or thereafter
created, incurred or assumed, which (i) are for money borrowed; (ii) are
evidenced by any bond, note, debenture or similar instrument; (iii) represent
the unpaid balance on the purchase price of any property, business, or asset of
any kind; (iv) are obligations of the Company as lessee under any and all
leases of property, equipment or other assets required to be capitalized on the
balance sheet of the lessee under generally accepted accounting principles; (v)
are reimbursement obligations of the Company with respect to letters of credit;
and (b) any deferrals, amendments, renewals, extensions, modifications and
refundings of any indebtedness or obligations of the types referred to above;
provided that Senior Indebtedness shall not include (i) Subordinated Debt
Securities; (ii) any indebtedness or obligation of the Company which, by its
express terms or the express terms of the instrument creating or evidencing it,
is not superior in right of payment to the Subordinated Debt Securities; or
(iii) any indebtedness or obligation incurred by the Company in connection with
the purchase of assets, materials or services in the ordinary course of
business and which constitutes a trade payable.
The Subordinated Indenture does not contain any limitation on the amount of
Senior Indebtedness which may be hereafter incurred by the Company.
In the event of any default in the payment of the principal of, or interest
on, any Senior Indebtedness in an aggregate principal amount of at least
$25,000,000 or any default permitting the acceleration of Senior Indebtedness
in an aggregate amount of at least $25,000,000 where notice of such default has
been given to the Company, no payment with respect to the principal of or
interest on the Subordinated Debt Securities will be made by the Company unless
and until such default has been cured or waived. Upon any payment or
distribution of the Company's assets to creditors of the Company in a
liquidation or dissolution of the Company, or in a reorganization, bankruptcy,
insolvency, receivership or similar proceeding relating to the Company or its
property, whether voluntary or involuntary, the holders of Senior Indebtedness
will first be entitled to receive payment in full of all amounts due thereon
before the holders of the Subordinated Debt Securities will be entitled to
receive any payment upon the principal of or premium, if any, or interest on
the Subordinated Debt Securities. By reason of such subordination, in the event
of insolvency of the Company, holders of Senior Indebtedness of the Company may
receive more, ratably, and holders of the Subordinated Debt Securities may
receive less, ratably, than the other creditors of the Company. Such
subordination will not prevent the occurrence of any Event of Default in
respect of the Subordinated Debt Securities.
5
<PAGE>
COVENANTS
The Senior Indenture contains, among others, the covenants summarized below,
which will be applicable (unless waived or amended) so long as any of the
Senior Debt Securities are outstanding, unless stated otherwise in the
Prospectus Supplement.
Limitations on Liens and Encumbrances. The Company covenants that it will not
nor will it permit any Subsidiary, directly or indirectly, to incur or create
any Lien on any property, assets or stock now owned or hereafter acquired by
the Company or any of its Subsidiaries without equally and ratably securing all
series of Senior Debt Securities then outstanding with the indebtedness secured
by such Lien, other than: (a) Liens for taxes or assessments and similar
charges either (i) not delinquent or (ii) being contested in good faith by
appropriate proceedings and as to which the Company or such Subsidiary, as the
case may be, shall have set aside on its books adequate reserves; (b) Liens
incurred or pledges and deposits made in connection with workmen's
compensation, unemployment insurance, old age pensions and social security
benefits or securing the performance of bids, tenders, leases, contracts (other
than for obligations incurred in connection with the borrowing of money or the
obtaining of advances or credit), and statutory obligations of like nature,
incurred as an incident to and in the ordinary course of business; (c)
materialmen's, mechanics', repairmen's, employees', operators' or other similar
Liens or charges arising in the ordinary course of business incidental to
construction, maintenance or operation of any property of the Company or any
Subsidiary which have not at the time been filed pursuant to law and any such
Liens and charges incidental to construction, maintenance or operation of any
property of the Company or any Subsidiary, which, although filed, relate to
obligations not yet due or the payment of which is being withheld as provided
by law, or to obligations the validity of which is being contested in good
faith by appropriate proceedings; (d) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions, waivers, restrictions on the
use of property or minor irregularities of title (and with respect to leasehold
interests, mortgages, obligations, Liens and other encumbrances incurred,
created, assumed or permitted to exist and arising by, through or under or
asserted by a landlord or owner of the leased property, with or without consent
of the lessee), which will not individually or in the aggregate interfere
materially with the use or operation by the Company or any Subsidiary of the
property affected thereby for the purposes for which such property was acquired
or is held by the Company or any Subsidiary; (e) Liens created by or resulting
from any litigation or proceeding which is being contested in good faith by
appropriate proceedings and as to which levy and execution have been stayed and
continue to be stayed; (f) Liens consisting of repurchase agreements, swaps or
other obligations entered into in the ordinary course of business relating to
precious metals purchased, borrowed or otherwise held by the Company or any
Subsidiary; (g) Liens incidental to the conduct of its business or the
ownership of its property and assets which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit and which do not
in the aggregate materially detract from the value of the property or assets
subject thereto or materially impair the use thereof in the operation of its
business; (h) Liens on property or assets of a Subsidiary to secure obligations
of such Subsidiary to the Company or another Subsidiary; (i) Liens arising in
connection with letter of credit trade transactions, provided that the Company
or its Subsidiary, as the case may be, discharges within 60 days its obligation
to pay the indebtedness to banks arising from payments made by such banks under
such letters of credit; and (j) other Liens, provided that the aggregate of all
properties and assets of the Company and the Subsidiaries which are subject to
or affected by such Liens and which would properly be classified as assets on a
consolidated balance sheet prepared in accordance with generally accepted
accounting principles as in effect on the date of the Indenture (including all
leases (other than leases of office space and leases of research and
development facilities, if any) that would be required to be reflected as
capital leases pursuant to such principles) does not at any time have a value
on the books of the Company and its Subsidiaries in excess of 25% of the
Consolidated Tangible Net Worth of the Company and its Subsidiaries calculated
for the quarter most recently ended.
Limitations on Sale and Leaseback Transactions. The Company covenants that it
will not, and will not permit any Significant Subsidiary to, directly or
indirectly, sell or transfer (other than to the Company or a Significant
Subsidiary) any Principal Property with the intention that the Company or any
Significant Subsidiary take back a lease thereof which (i) has a term of more
than three years or (ii) is renewable at the
6
<PAGE>
option of the Company or such Significant Subsidiary for an aggregate period or
periods of more than three years from the date of commencement thereof unless
(a) the Company promptly gives notice thereof to the Senior Trustee, and either
(b) the Principal Property owned by the Company or a Significant Subsidiary
immediately prior to such sale could have been subjected to a Lien to secure
indebtedness without being required to equally and ratably secure Senior Debt
Securities pursuant to the limitations described under "Limitations on Liens
and Encumbrances" or (c) the net proceeds of such sale are applied within 270
days (i) to the retirement of indebtedness of the Company or any Subsidiary or
(ii) to the redemption of Senior Debt Securities of any series at the time
outstanding or (iii) to the purchase of property, securities or other assets
having a value at least equal to the net proceeds of such sale, or (d) the
Company shall deliver to the Senior Trustee for cancellation Senior Debt
Securities of any series at the time outstanding in an aggregate principal
amount at least equal to the net proceeds of such sale (less any amounts
applied in accordance with clause (c)).
Certain Definitions. The term "Consolidated Tangible Net Worth" means the
excess of (i) the net book value of the assets of the Company and its
Subsidiaries (other than patents, patent rights, trademarks, trade names,
franchises, copyrights, licenses, permits, goodwill and other intangible assets
classified as such in accordance with generally accepted accounting principles
as in effect on the date of the Indenture) after all appropriate deductions in
accordance with generally accepted accounting principles as in effect on the
date of the Indenture (including, without limitation, reserves for doubtful
receivables, obsolescence, depreciation and amortization) plus the amount, if
any, by which the market value of precious metals inventories exceeds the
carrying value of those metals on the consolidated books of account of the
Company and its Subsidiaries reduced by taxes estimated to be payable upon
realization as calculated by the Company and reviewed by the Company's auditors
over (ii) the consolidated liabilities (including tax and other proper
accruals) of the Company and its Subsidiaries, in each case computed and
consolidated in accordance with generally accepted accounting principles as in
effect on the date of the Indenture. The term "Lien" means any mortgage,
pledge, security interest, encumbrance, lien or charge of any kind whatsoever
(including any conditional sale or other title retention agreement, any lease
in the nature thereof, and the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction). The term
"Principal Property" means, with certain exceptions, any manufacturing plant or
warehouse owned at the date hereof or hereafter acquired by the Company or any
Significant Subsidiary which is located within the United States and the gross
book value of which (before deduction of any applicable depreciation reserves)
is in excess of 5% of the Company's Consolidated Tangible Net Worth. The term
"Significant Subsidiary" shall have the meaning assigned to such term in
Regulation S-X promulgated under the Securities Act of 1933, as amended. The
term "Subsidiary" means any corporation, association or other business entity,
a majority (by number of votes) of the voting stock or control of which is at
the time owned or controlled by the Company or another Subsidiary of the
Company.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the form
of one or more global securities ("Global Securities") that will be deposited
with, or on behalf of, a Depositary identified in the Prospectus Supplement
relating to such series. Global Securities will be issued in registered form
and in either temporary or definitive form. Unless and until it is exchanged in
whole or in part for Notes in definitive form, a Global Security may not be
transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor of such Depositary or a nominee of such successor.
The specific terms of the Depositary arrangement with respect to Debt
Securities of a series will be described in the Prospectus Supplement relating
to such series. The Company anticipates that the following provisions will
apply to all Depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Notes represented by such
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Global Security to the accounts of institutions that have accounts with such
Depositary ("Participants"). The accounts to be credited shall be designated by
the underwriters of such Debt Securities, by certain agents of the Company or
by the Company, if such Debt Securities are offered and sold directly by the
Company. Ownership of beneficial interests in a Global Security will be limited
to Participants or persons that may hold interest through Participants.
Ownership of beneficial interest in such Global Security will be shown on, and
the transfer of that ownership will be effected only through, records
maintained by the Depositary with respect to Participants' beneficial
interests. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
ownership limits and such laws may impair the ability to transfer beneficial
interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
holder of such Global Security, such Depositary or such nominee, as the case
may be, will be considered the sole owner or holder of the Debt Securities
represented by such Global Security for all purposes under the Indenture
governing such Debt Securities. Except as set forth below, owners of beneficial
interests in a Global Security will not be entitled to have Debt Securities of
the series represented by such Global Security registered in their names, will
not receive or be entitled to receive physical delivery of Debt Securities of
such series in definitive form and will not be considered the owners or holders
thereof under the Indenture governing such Debt Securities.
Principal and interest payments on Debt Securities registered in the name of
or held by a Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner of the Global Security
representing such Debt Securities. The Company expects that the Depositary for
Debt Securities of a series, upon receipt of any payment of principal or
interest in respect of a Global Security, will immediately credit Participants'
accounts with payments in amount proportionate to their respective beneficial
interest in the principal amount of such Global Security as shown on the
records of such Depositary. The Company also expects that payments by
Participants to owners of beneficial interest in such Global Security held
through such Participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers in bearer form or registered in "street name," and will be the
responsibility of such Participants. None of the Company, the Trustee for such
Debt Securities, any paying agent or any registrar for such Debt Securities
will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interest in a
Global Security for such Debt Securities or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
If a Depositary for Debt Securities of a series is at any time unwilling or
unable to continue as a Depositary and a successor Depositary is not appointed
by the Company within 90 days, the Company will issue Debt Securities of such
series in definitive form in exchange for the Global Security or Debt
Securities representing the Debt Securities of such series represented by one
or more Global Securities.
INTEREST AND FOREIGN CURRENCY
Principal, premium, if any, and interest will be payable, and the Debt
Securities will be transferable, in the manner described in the Prospectus
Supplement relating to such Debt Securities. If any of the Debt Securities are
sold for any foreign currency or currency unit or if principal of, premium, if
any, or any interest on any of the Debt Securities is payable in any foreign
currency or currency unit, the restrictions, elections, tax consequences,
specific terms and other information with respect to such issue of Debt
Securities and such foreign currency or currency unit will be specified in a
Prospectus Supplement.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Indentures provide that the Company may not consolidate with or merge
into any other person or convey, transfer or lease its properties and assets
substantially as an entirety to any person and the Company shall not permit any
person to consolidate with or merge into the Company or convey, transfer or
lease its properties and assets substantially as an entirety to the Company,
unless (i) the successor corporation shall
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be a corporation organized and validly existing under the laws of the United
States, any State thereof or the District of Columbia, and shall expressly
assume by a supplemental indenture all obligations of the Company under the
applicable Indenture and the Debt Securities issued under such Indenture; (ii)
immediately after giving effect to such transaction, no Event of Default, and
no event which, after notice or lapse of time or both would become an Event of
Default, shall have happened and be continuing; (iii) if, as a result of any
such transaction a Principal Property would become subject to a mortgage,
pledge, lien, security interest or other encumbrance which would not be
permitted by the Senior Indenture, the Company or such successor Person, as the
case may be, secures the Senior Debt Securities equally and ratably with or
prior to such Lien. The successor shall be substituted for the Company and
thereafter all obligations of the Company under the applicable Indenture and
the Debt Securities issued under such Indenture shall terminate.
EVENTS OF DEFAULT
The following shall constitute Events of Default with respect to Debt
Securities of any series: (i) default for a period of 30 days in payment of any
interest on the Debt Securities of that series when due; (ii) default in
payment of principal of (or premium, if any, on) the Debt Securities of that
series when due (whether at maturity, upon redemption or otherwise or in the
making of any required sinking fund payment); (iii) default in performance of
any other covenant, condition or agreement in the Debt Security or in the
Indenture (other than a covenant, condition or agreement included in the Debt
Security or Indenture solely for the benefit of a series of Debt Securities
other than that series) continued for 60 days after written notice as provided
in the Indenture; (iv) a default under any instrument or other evidence of
indebtedness for money borrowed by the Company (including a default with
respect to Debt Securities of any series other than that series) or under any
instrument (including the Indenture) under which there may be issued or by
which there may be evidenced or secured any indebtedness for money borrowed by
the Company, which default shall involve an amount in excess of $25,000,000 and
shall constitute a failure to pay such indebtedness when due and payable after
the expiration of any grace period and shall have resulted in the acceleration
of such indebtedness, if such accelerated indebtedness is not discharged, or
such acceleration is not annulled, within 30 days after written notice as
provided in the Indenture; and (v) certain events of bankruptcy, insolvency or
reorganization.
If an Event of Default with respect to Debt Securities of any series at the
time outstanding shall occur and be continuing, the Trustee or the Holders of
25% in principal amount of the outstanding Debt Securities of that series may
declare the principal and accrued interest of all of the Debt Securities of
that series to be due and payable immediately.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default, give to Holders of the Debt Securities of the series
with respect to which a default has occurred notice of all uncured defaults
known to it; but, except in the case of a default in the payment of principal
or interest on Debt Securities of that series, the Trustee shall be protected
in withholding such notice if it in good faith determines that the withholding
of such notice is in the interest of the Holders.
The Indenture contains a provision entitling the Trustee, subject to the duty
of the Trustee during a default to act with the required standard of care, to
be indemnified by the Holders of Debt Securities of the series with respect to
which a default has occurred before proceeding to exercise any right or power
under the Indenture at the request of such Holders. Subject to such right of
indemnification, the Indenture provides that the Holders of a majority in
principal amount of the outstanding Debt Securities of a series may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred upon the Trustee with
respect to such series.
The Company will be required to furnish to the Trustee annually a statement
as to the fulfillment by the Company of all of its obligations under the
Indenture.
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MODIFICATION OF INDENTURES
Unless the resolution establishing the terms of a series otherwise provides,
the applicable Indenture and the Debt Securities of the series may be amended,
and any default may be waived as follows: the Debt Securities and the
applicable Indenture may be amended with the consent of holders of a majority
in principal amount of the Debt Securities of all series affected voting as one
class. A default with respect to a series may be waived with the consent of the
holders of a majority in principal amount of the Debt Securities of the series.
However, without the consent of each holder affected, no amendment or waiver
may (1) reduce the amount of Debt Securities whose holders must consent to an
amendment or waiver, (2) reduce the interest on or change the time for payment
of interest on any Debt Security, (3) change the fixed maturity of any Debt
Security, (4) reduce the principal of any non-Discounted Security or reduce the
amount of principal of any Discounted Security that would be due on
acceleration thereof, (5) change the currency in which principal or interest on
a Debt Security is payable, (6) waive any default in payment of interest on or
principal of a Debt Security or (7) change certain provisions of the applicable
Indenture regarding waiver of past defaults and amendments with the consent of
holders other than to increase the principal amount of Debt Securities required
to consent. Without the consent of any holder, the applicable Indenture or the
Debt Securities may be amended to cure any ambiguity, omission, defect or
inconsistency; to provide for the assumption of Company obligations to holders
in the event of a merger or consolidation requiring such assumption; to provide
that specific provisions in the applicable Indenture not apply to a series of
Debt Securities not previously issued; to create a series and establish its
terms; to provide for a separate Trustee for one or more series; or to make any
change that does not materially adversely affect the rights of any holder.
DEFEASANCE
Debt Securities of a series may be defeased in accordance with their terms
and, unless the resolution establishing the terms of the series otherwise
provides, as set forth below. The Company at any time may terminate as to a
series all of its obligations (except for certain obligations with respect to
the defeasance trust and obligations to register the transfer or exchange of a
Debt Security, to replace destroyed, lost or stolen Debt Securities and to
maintain agencies in respect of the Debt Securities) with respect to the Debt
Securities of that series and the applicable Indenture ("legal defeasance").
The Company at any time may terminate as to a series its obligations with
respect to the Debt Securities of that series under the covenants described
under "Covenants" ("covenant defeasance").
The Company may exercise its legal defeasance option notwithstanding its
prior exercise of its covenant defeasance option. If the Company exercises its
legal defeasance option, a series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, a series may
not be accelerated by reference to the covenants described under "Covenants."
To exercise either option as to a series, the Company must deposit in the
trust (the "defeasance trust") with the applicable Trustee money or U.S.
Government Obligations for the payment of principal, premium, if any, and
interest on the Debt Securities of the series to redemption or maturity and
must comply with certain other conditions. In particular, if the defeasance
occurs more than twelve months prior to the earlier of the maturity or the date
fixed for redemption of the series to be defeased, the Company must obtain an
opinion of tax counsel that the defeasance will not result in recognition for
Federal income tax purposes of any gain or loss to holders of the series. "U.S.
Government Obligations" are direct obligations of the United States of America
which have the full faith and credit of the United States of America pledged
for payment and which are not callable at the issuer's option, or certificates
representing an ownership interest in such obligations.
CONVERSION RIGHTS OF DEBT SECURITIES
If so indicated in the applicable Prospectus Supplement with respect to a
particular series of Debt Securities, holders of such series of Debt Securities
will be entitled, at any time prior to the date set forth in
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the Prospectus Supplement relating to such series, subject to prior redemption,
to convert such Debt Securities or portions thereof (which are $1,000 or
integral multiples thereof) into or for common stock, par value $1.00 per share
(the "Common Stock") of the Company, at the conversion rate stated in the
Prospectus Supplement, subject to adjustment as described below or in the
applicable Prospectus Supplement. The right to convert Debt Securities called
for redemption will terminate at the close of business on the redemption date,
and will be lost if not exercised prior to that time unless the Company
defaults in making the payments due upon redemption.
To convert a Debt Security, a Holder must (i) complete and manually sign the
conversion notice (the "Conversion Notice") on the back of the Debt Security
(or complete and manually sign a facsimile thereof) and deliver such notice to
the Conversion Agent or any other office or agency maintained for such purpose,
(ii) surrender the Debt Security to the Conversion Agent or at such other
office or agency by physical delivery, (iii) if required, furnish appropriate
endorsements and transfer documents, and (iv) if required, pay all transfer or
similar taxes. The date by which such notice shall have been received and the
Debt Security shall have been so surrendered to the Conversion Agent is the
Conversion Date. Such Conversion Notice shall be irrevocable and may not be
withdrawn by a Holder for any reason.
Unless otherwise provided in the applicable Prospectus Supplement, the
conversion rate is subject to adjustment upon the occurrence of certain events,
including the issuance of Common Stock as a dividend or distribution on the
Common Stock; subdivisions, combinations and certain reclassifications of
Common Stock; the issuance to all holders of Common Stock of shares or certain
rights or warrants to subscribe for shares of Common Stock at less than the
then current Market Price per share; and the distribution to all holders of
Common Stock of any assets (other than cash dividends paid out of retained
earnings) or debt securities or any rights or warrants to purchase assets or
debt securities. The Company may also increase the conversion rate at any time,
temporarily or otherwise, by any amount so long as the conversion rate does not
cause Common Stock to be issued at less than its par value.
No adjustment in the conversion rate will be required unless such adjustment
would require a change of at least 1% of the conversion rate then in effect;
provided, however, that any adjustment that would otherwise be required to be
made shall be carried forward and taken into account in any subsequent
adjustment.
If any Debt Security is converted between the record date for the payment of
interest and the next succeeding interest payment date, such Debt Security must
be accompanied by funds equal to the interest payable on such succeeding
interest payment date on the principal amount so converted (unless such Debt
Security shall have been called for redemption during such period, in which
case no such payment shall be required), and the interest on the principal
amount of the Debt Security being converted will be paid on such next
succeeding interest payment date to the registered holder of such Debt Security
on the immediately preceding record date. A Debt Security converted on an
interest payment date need not be accompanied by any payment, and the interest
on the principal amount of the Debt Security being converted will be paid on
such interest payment date to the registered holder of such Debt Security on
the immediately preceding record date, except as otherwise provided by the
applicable Indenture. Subject to the aforesaid right of the registered holder
to receive interest, no payment or adjustment will be made on conversion for
interest accrued on the converted Debt Security or for dividends on the Common
Stock issued on conversion.
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
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DESCRIPTION OF CAPITAL STOCK
GENERAL
The Company is authorized to issue 200,000,000 shares of Common Stock, par
value $1.00 per share, and 5,000,000 shares of Preferred Stock, without par
value. All outstanding shares of Common Stock are fully paid and non-
assessable.
COMMON STOCK
Subject to the rights of the holders of Preferred Stock, the holders of the
Common Stock of the Company are entitled to receive dividends from funds
legally available therefor when, as and if declared by the Board of Directors,
and are entitled upon liquidation to share ratably in all assets of the Company
after satisfaction in full of the prior rights of creditors of the Company and
holders of any Preferred Stock.
The holders of the Common Stock are entitled to one vote for each share held
on all matters as to which shareholders are entitled to vote. The holders of
the Common Stock do not have cumulative voting rights, any preferential or
preemptive right with respect to any securities of the Company, or any
conversion rights. The Common Stock is not subject to redemption. The
outstanding shares of Common Stock are fully paid and non-assessable.
The Common Stock is listed on the following stock exchanges: New York,
Chicago (options), London, Zurich, Basel and Geneva. The transfer agent for the
Common Stock is Mellon Securities Trust Company.
PREFERRED STOCK
The Company is authorized to issue 5,000,000 shares of Preferred Stock which
may be issued from time to time in one or more series with such rights,
preferences and limitations as are determined by the Company's Board of
Directors. Satisfaction of any dividend preferences of outstanding Preferred
Stock would reduce the amount of funds available for the payment of dividends
on Common Stock. Also, holders of Preferred Stock would normally be entitled to
receive a preference payment before any payment is made to holders of Common
Stock in the event of any liquidation, dissolution or winding-up of the
Company. As of the date of the Prospectus, no shares of Preferred Stock are
issued or outstanding.
SUPERMAJORITY VOTING REQUIREMENTS AND CLASSIFIED BOARD OF DIRECTORS
The Company's Restated Certificate of Incorporation provides that, in order
to approve a merger or consolidation with or into, or a sale or other transfer
of all or a portion of the assets of the Company other than in the ordinary
course of business to, or the issuance or transfer of voting securities of the
Company as part of an exchange or acquisition of the securities or assets
(including cash) of, any entity which is the beneficial owner of 5% or more of
the outstanding shares of the Company entitled to vote in the election of
Directors, the affirmative vote of not less than 80% of the outstanding Common
Stock (including at least 50% of the outstanding Common Stock held by
stockholders other than such 5% beneficial owner) is required. The foregoing
provision would not be applicable if the proposed transaction was approved by a
majority of the Board of Directors of the Company who had been duly elected and
acting as members of the Board prior to the time such 5% beneficial owner
became the beneficial owner of 5% or more of the outstanding shares of Common
Stock.
The Company's Restated Certificate of Incorporation also provides for a
classified Board of Directors divided into three classes. All classes shall be
as nearly equal in number as possible and no class shall include less than two
Directors, with one class of Directors to be elected each year for a three-year
term.
Neither provision described in the foregoing paragraphs can be amended
without the affirmative vote of the holders of at least 80% of the outstanding
Common Stock (including at least 50% of the outstanding Common Stock held by
stockholders other than such 5% beneficial owner).
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The Company believes that the classified Board and such 80% voting
requirements are desirable to assure continuity in Board membership and in
policy formulated by the Board. Such provisions will serve to moderate the pace
of any change in control of the Company by extending the time required to elect
a majority of the Directors and will better enable the Board to protect the
interests of shareholders in the event that any person or corporation should
attempt to obtain control of the Company.
It is recognized, however, that the effect of such provisions is to make it
more difficult to change Directors even should this be desired by a majority of
the Company's stockholders, and may be to render more difficult or to
discourage a merger, tender offer or proxy contest or the assumption of control
by a holder of a large block of Company securities.
The aforementioned 80% voting requirement for approval of specified
transactions with such 5% beneficial owners, absent Board approval, provides
the Board and minority stockholders with a veto power over such transactions.
Such provision would be beneficial to Company management when confronted with a
hostile tender offer and may deter such offers, thus depriving a stockholder of
the opportunity to dispose of his or her shares to a hostile tender offeror at
a price substantially in excess of market value. The deterrence of such offers
also has the effect of supporting existing management in its present position.
DIRECTORS' LIABILITY
The Company's Restated Certificate of Incorporation, as amended, provides
that, to the fullest extent permitted by Delaware law, no Director of the
Company will be liable to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a Director, except for liability (i) for any
breach of the Director's duty of loyalty to the Company or its shareholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) in respect of certain unlawful
dividend payments or stock redemptions or repurchases, or (iv) for any
transaction from which the Director derived an improper personal benefit. The
effect of the provision in the Restated Certificate of Incorporation will be to
eliminate the rights of the Company and its stockholders (including through
stockholders' derivative suits on behalf of the Company) to recover monetary
damages against a Director for breach of fiduciary duty as a Director
(including breaches resulting from negligent or grossly negligent behavior)
except in the situations described in clauses (i) through (iv) above.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities (i) through underwriters or dealers;
(ii) through agents; (iii) directly to purchasers; or (iv) through a
combination of any such methods of sale. Any such underwriter, dealer or agent
may be deemed to be an underwriter within the meaning of the Securities Act of
1933, as amended. The Prospectus Supplement relating to any offering of Debt
Securities will set forth their offering terms, including the name or names of
any underwriters, the purchase price of the Debt Securities and the proceeds to
the Company from such sale, any underwriting discounts, commissions and other
items constituting underwriters' compensation, any initial public offering
price, and any underwriting discounts, commissions and other items allowed or
reallowed or paid to dealers and any securities exchanges on which the Debt
Securities may be listed.
If underwriters are used in the sale, the Debt Securities will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, at fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, or at prices related to such
prevailing market prices, or at negotiated prices. The Debt Securities may be
offered to the public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more of such firms. Unless
otherwise set forth in the Prospectus Supplement, the obligations of the
underwriters to purchase the Debt Securities will be subject to certain
conditions precedent and the underwriters will be
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obligated to purchase all the offered Debt Securities, if any are purchased.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Debt Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the accompanying Prospectus Supplement. Unless otherwise
indicated in the Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters, dealers or agents to solicit offers by certain specified
institutions to purchase Debt Securities from the Company at the public
offering price set forth in the accompanying Prospectus Supplement pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject to any conditions set forth
in the accompanying Prospectus Supplement and such Prospectus Supplement will
set forth the commission payable for solicitation of such contracts. The
underwriters and other persons soliciting such contracts will have no
responsibility for the validity or performance of any such contracts.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Company, to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act of 1933, as
amended, or to contribution by the Company to payments they may be required to
make in respect thereof.
Certain of the underwriters, agents or dealers and their associates may be
customers of, or engage in transactions with and perform services for the
Company in the ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the Debt Securities will be passed
upon for the Company by Cahill Gordon & Reindel (a partnership including a
professional corporation), New York, New York.
EXPERTS
The consolidated balance sheets as of December 31, 1994 and 1993 and the
consolidated statements of earnings, shareholders' equity and cash flows for
each of the three years in the period ended December 31, 1994, incorporated by
reference in this Prospectus and elsewhere in the Registration Statement, have
been incorporated herein in reliance on the report of Coopers & Lybrand L.L.P.,
independent accountants, given on the authority of that firm as experts in
accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee................ $ 68,966
Cost of Printing................................................... 50,000
Rating Agency Fees................................................. 100,000
Independent Auditors' Services and Expenses........................ 25,000
Legal Services and Expenses (including Blue Sky fees and expenses). 90,000
Trustees' Fees and Expenses........................................ 10,000
Miscellaneous...................................................... 6,034
--------
Total............................................................ $350,000
========
</TABLE>
Other than the Securities and Exchange Commission Registration Fee, all
amounts set forth above are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides for
indemnification of directors and officers against any legal liability (other
than liability arising from derivative suits) if the officer or director acted
in good faith and in a manner that he or she reasonably believed to be in or
not opposed to the best interests of the corporation. In criminal actions, the
officer or director must also have no reasonable cause to believe that his or
her conduct was unlawful. A corporation may indemnify an officer or director in
a derivative suit if the officer or director acted in good faith and in a
manner that he or she reasonably believed to be in or not opposed to the best
interests of the corporation unless the officer or director is found liable to
the corporation. However, if the Court of Chancery or the court in which the
officer or director was found liable determines that the officer or director is
fairly and reasonably entitled to indemnity, then the Court of Chancery or such
other court may permit indemnity for such officer or director to the extent it
deems proper.
The Registrant's Certificate of Incorporation provides that a director of the
Registrant shall not be personally liable to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability for (i) any breach of the director's duty of loyalty to the
Registrant or its stockholders, (ii) acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (iii)
payment of an improper dividend or for an improper repurchase or redemption of
the stock of the Corporation in violation of Section 174 of the Delaware
General Corporation Law or (iv) transactions in which the director derives any
improper personal benefit.
ITEM 16. EXHIBITS.
1.1 --Form of Underwriting Agreement.
1.2 --Form of Distribution Agreement.
4.1 --Form of Indenture (including form of Senior Debt Security).
4.2 --Form of Subordinated Indenture (including form of Subordinated Debt
Security).
4.3 --Certificate of Incorporation (incorporated by reference to Form 10, as
amended on Form 8-K filed with the Securities and Exchange Commission
on May 19, 1981).
4.4 --By-laws of the Company as amended September 17, 1981 (incorporated by
reference to Form 10-Q for the quarter ended September 30, 1981).
4.5 --Certificate of Amendment to the Restated Certificate of Incorporation
of the Company (incorporated by reference to Form 10-K for the year
ended December 31, 1987).
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<PAGE>
4.6 --Article XVII of the Registrant's By-laws as amended on May 2, 1988
(incorporated by reference to Form 8-K filed with the Securities and
Exchange Commission on May 21, 1988).
4.7 --Certificate of Amendment to the Restated Certificate of Incorporation
of the Company (incorporated by reference to Form 10-Q for the quarter
ended March 31, 1993).
5.1 --Opinion of Cahill Gordon & Reindel.
12.1 --Statement of Computation of Ratio of Earnings to Fixed Charges.
23.1 --Consent of Coopers & Lybrand.
23.2 --Consent of Cahill Gordon & Reindel (included as part of Exhibit 5.1).
24.1 --Powers of Attorney.
25.1 --Form T-1 Statement of Eligibility and Qualification of Chase
Manhattan Bank, N.A., as senior trustee, under the Trust Indenture Act
of 1939, as amended.
25.2 --Form T-1 Statement of Eligibility and Qualification of the
Subordinated Trustee under the Trust Indenture Act of 1939, as amended
(to be filed by amendment when the Subordinated Trustee is selected).
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or
any material change to such information in the Registration Statement;
provided, however, that the undertakings set forth in clauses (i) and (ii)
of this paragraph shall not apply if the information required to be
included in such post-effective amendment is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post- effective amendment
any of the securities being registered herein which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise,
II-2
<PAGE>
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling 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 of whether such indemnification by it is against public policy, as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(d) The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THE
REGISTRANT CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS
ALL OF THE REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS
REGISTRATION STATEMENT OR AMENDMENT THERETO TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED THEREUNTO DULY AUTHORIZED IN THE CITY OF ISELIN, STATE OF NEW
JERSEY, ON THE 10TH DAY OF APRIL, 1995.
Engelhard Corporation
Orin R. Smith
By: _________________________________
ORIN R. SMITH
CHAIRMAN AND CHIEF EXECUTIVE
OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE
Orin R. Smith Chairman, Chief April 10, 1995
_____________________________________ Executive Officer
ORIN R. SMITH and Director
(Principal
Executive Officer)
R.L. Guyett Senior Vice April 10, 1995
_____________________________________ President, Chief
ROBERT L. GUYETT Financial Officer
and Director
(Principal
Financial Officer)
M.J. Connor, Jr. Controller April 10, 1995
_____________________________________ (Principal
MARTIN J. CONNOR, JR. Accounting Officer)
* Director April 10, 1995
_____________________________________
LINDA G. ALVARADO
* Director April 10, 1995
_____________________________________
MARION H. ANTONINI
* Director April 10, 1995
_____________________________________
L. DONALD LATORRE
Director April 10, 1995
_____________________________________
ANTHONY W. LEA
II-4
<PAGE>
SIGNATURE TITLE DATE
* Director April 10, 1995
_____________________________________
JAMES V. NAPIER
* Director April 10, 1995
_____________________________________
NORMA T. PACE
* Director April 10, 1995
_____________________________________
REUBEN F. RICHARDS
* Director April 10, 1995
_____________________________________
HENRY R. SLACK
* Director April 10, 1995
_____________________________________
DOUGLAS G. WATSON
Arthur A. Dornbusch, II
*By: ________________________________
ARTHUR A. DORNBUSCH, II
ATTORNEY-IN-FACT
II-5
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
EXHIBITS
to
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________
ENGELHARD CORPORATION
(Exact name of Registrant as specified in its charter)
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
1.1 -- Form of Underwriting Agreement.
1.2 -- Form of Distribution Agreement.
4.1 -- Form of Indenture (including form of Senior Debt
Security).
4.2 -- Form of Subordinated Indenture (including form
of Subordinated Debt Security).
4.3 -- Certificate of Incorporation (incorporated by
reference to Form 10, as amended on Form 8-K
filed with the Securities and Exchange
Commission on May 19, 1981).
4.4 -- By-laws of the Company as amended September 17,
1981 (incorporated by reference to Form 10-Q for
the quarter ended September 30, 1981).
4.5 -- Certificate of Amendment to the Restated
Certificate of Incorporation of the Company
(incorporated by reference to Form 10-K for the
year ended December 31, 1987).
4.6 -- Article XVII of the Registrant's By-laws as
amended on May 2, 1988 (incorporated by
reference to Form 8-K filed with the Securities
and Exchange Commission on May 21, 1988).
4.7 -- Certificate of Amendment to the Restated
Certificate of Incorporation of the Company
(incorporated by reference to Form 10-Q for the
quarter ended March 31, 1993).
5.1 -- Opinion of Cahill Gordon & Reindel.
12.1 -- Statement of Computation of Ratio of Earnings to
Fixed Charges.
23.1 -- Consent of Coopers & Lybrand.
23.2 -- Consent of Cahill Gordon & Reindel (included as
part of Exhibit 5.1).
<PAGE>
24.1 -- Powers of Attorney.
25.1 -- Form T-1 Statement of Eligibility and
Qualification of Chase Manhattan Bank,
N.A., as senior trustee, under the Trust
Indenture Act of 1939, as amended.
25.2 -- Form T-1 Statement of Eligibility and
Qualification of the Subordinated Trus-
tee under the Trust Indenture Act of
1939, as amended (to be filed by amend-
ment when the Subordinated Trustee is
selected).
-2-
<PAGE>
Exhibit 1.1
ENGELHARD CORPORATION
Debt Securities
________, 1995
UNDERWRITING AGREEMENT BASIC PROVISIONS
Engelhard Corporation, a Delaware corporation (the
"Company"), may issue and sell from time to time its debt secu-
rities consisting of senior debt securities ("Senior Debt Secu-
rities") and subordinated debt securities ("Subordinated Debt
Securities" and, together with the Senior Debt Securities, the
"Securities"). The Securities are registered under the regis-
tration statement (No. 33-______) referred to in Section 2(a)
hereof.
The Securities may be issued in one or more series
and may have varying designations, denominations, interest
rates and payment dates, maturities, redemption provisions and
selling prices. The Senior Debt Securities will be issued
under an indenture (the "Senior Indenture") between the Company
and [ ] (the "Senior Trustee") and the Subordi-
nated Debt Securities will be issued under an indenture (the
"Subordinated Indenture" and, together with the Senior Inden-
ture, the "Indentures") between the Company and [ ]
(the "Subordinated Trustee" and, together with the Senior Trus-
tee, the "Trustees"). The Securities may be convertible, as
described in the applicable Indenture, into shares of common
stock, par value $1.00 per share (the "Common Stock") of the
Company and, where applicable, references to the Securities
also shall include the Common Stock which is issuable upon such
conversion.
This Underwriting Agreement shall not be construed as
an obligation on the part of the Company to sell any of the
Offered Securities (as defined herein) or as an obligation of
any of the Underwriters (as defined herein) to purchase the
Offered Securities. The basic provisions set forth herein are
intended to be incorporated by reference in a terms agreement
of the type referred to in Section 1 hereof relating to the
type, designation and series of Securities to be issued and
sold by the Company pursuant thereto (the "Offered Securities")
to the underwriters named therein (the "Underwriters"). The
<PAGE>
-2-
terms agreement relating to the Offered Securities (the "Terms
Agreement"), together with the provisions hereof incorporated
therein by reference (which provisions shall not become effec-
tive until so incorporated by reference), is herein referred to
as this "Agreement." If the Underwriters consist only of the
firm or firms referred to in the Terms Agreement as Representa-
tive or Representatives, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to
refer to such firm or firms.
1. Terms Agreement. The obligation of the Under-
writers to purchase, and the Company to sell, the Offered Secu-
rities is evidenced by the Terms Agreement, substantially in
the form of Exhibit A hereto, delivered at the time the Company
determines to sell the Offered Securities. The Terms Agreement
specifies the firm or firms which will be Underwriters, the
amount of the Offered Securities to be purchased by each Under-
writer, the purchase price to be paid by the Underwriters for
the Offered Securities, the public offering price, if any, of
the Offered Securities, whether the Underwriters are authorized
to solicit institutional investors to purchase Offered Securi-
ties pursuant to Delayed Delivery Contracts (as defined), cer-
tain terms thereof and the Underwriters' compensation therefor
and any terms of the Offered Securities not otherwise specified
in the applicable Indenture (including, but not limited to,
designations, denominations, conversion or exchange provisions,
covenants, interest rates and payment dates, maturity, redemp-
tion provisions and sinking fund requirements). The Terms
Agreement also specifies any details of the terms of the offer-
ing that should be reflected in a post-effective amendment to
the Registration Statement or the Prospectus Supplement (each
as hereinafter defined).
2. Representations and Warranties of the Company.
The Company represents and warrants to and agrees with each
Underwriter that:
(a) The Company meets the requirements for use of
Form S-3 under the Securities Act of 1933, as amended (the
"Act"), and has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on
such form, including a prospectus, with respect to the
Securities, which (i) has been prepared by the Company in
conformity with the requirements of the Act and the rules
and regulations (the "Rules and Regulations") of the Com-
mission thereunder and (ii) has become effective. Such
registration statement and prospectus may have been
<PAGE>
-3-
amended or supplemented from time to time prior to the
date of this Agreement; any such amendment to the regis-
tration statement was so prepared and filed and any such
amendment has become effective. A prospectus supplement,
including a prospectus, relating to the Offered Securities
(the "Prospectus Supplement") has been so prepared or will
be prepared promptly after the execution of the Terms
Agreement related thereto. The Prospectus Supplement and,
if not previously filed, such prospectus will be filed
pursuant to Rule 424 under the Act. Copies of such regis-
tration statement and prospectus, any such amendment or
supplement, the Prospectus Supplement and all documents
incorporated by reference therein which were filed with
the Commission on or prior to the date of the Terms Agree-
ment have been, or promptly after the execution of the
Terms Agreement will be, delivered to the Representatives.
Such registration statement and prospectus, as amended or
supplemented to the date of the Terms Agreement and as
supplemented by the Prospectus Supplement are herein
referred to as the "Registration Statement" and the "Pro-
spectus," respectively. Any reference herein to the Reg-
istration Statement or the Prospectus shall be deemed to
refer to and include the documents incorporated by refer-
ence therein which were filed with the Commission on or
prior to the date of the Terms Agreement and any reference
to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include the filing of any
document with the Commission deemed to be incorporated by
reference therein after the date of the Terms Agreement
and on or prior to the Closing Date (as defined).
(b) The Registration Statement, at the time it
became effective, any post-effective amendment thereto, at
the time it became effective, the Registration Statement
and the Prospectus, as of the date of the Terms Agreement
and at the Closing Date, and any amendment or supplement
thereto, complied or will comply, in all material
respects, with the requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the Rules and Regulations; and no such document
included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; provided, that the Com-
pany makes no representation or warranty as to information
contained in or omitted from the Registration Statement or
<PAGE>
-4-
the Prospectus in reliance upon and in conformity with
written information furnished to the Company by or on
behalf of any Underwriter specifically for inclusion
therein.
(c) The documents incorporated by reference in the
Registration Statement or the Prospectus, when they became
effective or were filed with the Commission, as the case
may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), complied, and any documents
so filed and incorporated by reference after the date of
the Terms Agreement and on or prior to the Closing Date
will, when they are filed with the Commission, comply, in
all material respects with the requirements of the Act and
the Exchange Act, as applicable, and the Rules and
Regulations.
(d) The Company and each of its "significant subsid-
iaries" within the meaning of Regulation S-X under the Act
("Significant Subsidiaries") have been duly incorporated,
are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incor-
poration and have the corporate power and authority to
carry on their respective businesses as currently con-
ducted and to own, lease and operate properties, and the
Company is duly qualified and is in good standing as a
foreign corporation authorized to do business in each
jurisdiction, except where the failure to be so qualified
would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(e) The execution, delivery and performance of this
Agreement, the Indentures and the Offered Securities, and
compliance by the Company with all the provisions hereof
and thereof, and the consummation of the transactions con-
templated hereby and thereby (i) will not require any con-
sent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmen-
tal body (except as such may be required under the securi-
ties or Blue Sky laws of the various states), (ii) will
not conflict with or constitute a breach of the terms or
provisions of the charter or by-laws of the Company,
(iii) will not conflict in any material respect with or
constitute a material breach of any of the terms or provi-
sions of, or a material default under, the charter or
by-laws of any of the Company's subsidiaries or any agree-
ment, indenture or other instrument to which the Company
<PAGE>
-5-
or any of its subsidiaries or their respective property is
bound, or (iv) will not violate or conflict in any mate-
rial respect with any laws, administrative regulations or
rulings or court decrees applicable to the Company, any of
its subsidiaries or their respective properties.
(f) This Agreement has been duly authorized, exe-
cuted and delivered by the Company and is a valid and
binding agreement of the Company enforceable in accordance
with its terms except as (i) the enforceability hereof may
be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now or
hereafter in effect relating to creditors' rights gener-
ally and (ii) the availability of equitable remedies may
be limited by equitable principles of general applicabil-
ity and (iii) rights to indemnity and contribution hereun-
der may be limited by applicable law.
(g) The applicable Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended, and has
been duly authorized by the Company and constitutes a
valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except
as (i) the enforceability thereof may be limited by bank-
ruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies
may be limited by equitable principles of general
applicability.
(h) The Securities, when executed by the Company and
authenticated by the appropriate Trustee in accordance
with the terms of the applicable Indenture, and delivered
to and paid for by the Representatives in accordance with
the terms of this Agreement (and, in the case of any Con-
tract Securities (as hereinafter defined), as contemplated
by the Delayed Delivery Contracts with respect thereto),
will constitute valid and binding obligations of the Com-
pany enforceable against the Company in accordance with
their terms, except as (i) the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now or
hereafter in effect relating to creditors' rights gener-
ally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable princi-
ples of general applicability.
<PAGE>
-6-
(i) If the Offered Securities are convertible into
shares of Common Stock, the shares of Common Stock ini-
tially issuable upon conversion of such Offered Securities
have been duly authorized and reserved for issuance upon
conversion and, when issued upon conversion in accordance
with the terms of the Offered Securities, will have been
validly issued and will be fully paid and non-assessable,
and the issuance of such shares is not subject to any pre-
emptive or similar rights.
(j) All the outstanding shares of capital stock of
the Company have been duly authorized and validly issued
and are fully paid, non-assessable and not subject to any
preemptive or similar rights.
(k) The Offered Securities will conform in all mate-
rial respects to the descriptions thereof in the
Prospectus.
3. Purchase, Sale and Delivery of Securities. The
Offered Securities to be purchased by the Underwriters will be
delivered by the Company to the Representatives for the
accounts of the Underwriters at the office specified in the
Terms Agreement against payment of the purchase price therefor
by certified or official bank check or checks in New York
Clearing House funds (or as otherwise specified in the Terms
Agreement) payable to the order of the Company on the date and
at the times specified in the Terms Agreement as the Represen-
tatives and the Company determine, such time being herein
referred to as the "Closing Date." The Offered Securities will
be prepared in definitive registered form unless otherwise
specified in the Terms Agreement and in such authorized amounts
or denominations and registered in such names as the Represen-
tatives may require upon at least two business days' prior
notice to the Company, and will be made available for checking
and packaging at the office at which they are to be delivered
on the Closing Date (as specified for that purpose in the Terms
Agreement) at least one business day prior to the Closing Date.
It is understood that the Representatives, acting
individually and not in a representative capacity, may (but
shall not be obligated to) make payment to the Company on
behalf of any other Underwriter for the Offered Securities to
be purchased by such Underwriter. Any such payment by the Rep-
resentatives shall not relieve any such Underwriter of any of
its obligations hereunder.
<PAGE>
-7-
If so authorized in the Terms Agreement, the Under-
writers may solicit offers from investors of the types set
forth in the Prospectus to purchase Offered Securities from the
Company pursuant to delayed delivery contracts ("Delayed Deliv-
ery Contracts"). Such contracts shall be substantially in the
form of Exhibit B hereto but with such changes therein as the
Company may approve. Offered Securities to be purchased pursu-
ant to Delayed Delivery Contracts are herein called "Contract
Securities." When Delayed Delivery Contracts are authorized in
the Terms Agreement, the Company will enter into a Delayed
Delivery Contract in each case where a sale of Contract Securi-
ties arranged through the Representatives has been approved by
the Company but, except as the Company may otherwise agree,
such Delayed Delivery Contracts must be for at least the mini-
mum amount of Contract Securities set forth in the Terms Agree-
ment, and the aggregate amount of Contract Securities may not
exceed the amount set forth in the Terms Agreement. You will
advise the Company of the proposed sales of the Contract Secu-
rities not later than 10:00 A.M., New York City time, on the
third full business day preceding the Closing Date (or at such
later time as the Company may otherwise agree). The Company
will advise the Representatives not later than 10:00 A.M., New
York City time, the second full business day preceding the
Closing Date (or at such later time as the Representatives may
otherwise agree) of the sales of the Contract Securities which
have been so approved. The Representatives and the other
Underwriters will not have any responsibility in respect of the
validity or performance of Delayed Delivery Contracts.
The amount of Offered Securities to be purchased by
each Underwriter as set forth in the Terms Agreement shall be
reduced by an amount which shall bear the same proportion to
the total amount of Contract Securities as the amount of
Offered Securities set forth opposite the name of such Under-
writer bears to the total amount of Offered Securities set
forth in the Terms Agreement, except to the extent that the
Representatives determine that such reduction shall be other-
wise than in such proportion and so advise the Company; pro-
vided, however, that the total amount of Offered Securities to
be purchased by all Underwriters shall be the total amount of
Offered Securities set forth in the Terms Agreement less the
aggregate amount of Contract Securities.
4. Certain Agreements of the Company. The Company
agrees with the several Underwriters that it will furnish to
counsel for the Underwriters, without charge, one signed copy
of the Registration Statement, including all exhibits, in the
<PAGE>
-8-
form it became effective and of all amendments thereto and
that, in connection with each offering of Securities:
(a) At any time when a prospectus relating to the
Securities is required to be delivered under the Act,
before amending or supplementing the Registration State-
ment or the Prospectus with respect to the Securities, the
Company will furnish to the Representatives a copy of such
proposed amendment or supplement (other than any document
filed under the Exchange Act and incorporated by reference
in the Prospectus) prior to the filing thereof and will
not file any such proposed amendment or supplement to
which the Representatives reasonably object. The Company
will also advise the Representatives promptly of the fil-
ing of any such amendment or supplement and of the insti-
tution by the Commission of any stop order proceedings in
respect of the Registration Statement and will use their
best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if
issued.
(b) If, at any time when a prospectus relating to
the Securities is required to be delivered under the Act,
any event occurs or a condition exists as a result of
which the Prospectus as then amended or supplemented,
would include an untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein, in the light of the circumstances
under which they were made when the Prospectus was deliv-
ered, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company
promptly will prepare and file with the Commission an
amendment or supplement which will correct such statement
or omission or an amendment which will effect such compli-
ance.
(c) As soon as reasonably practicable after the date
of each Terms Agreement, the Company will make generally
available to its security holders an earnings statement
that satisfies the provisions of Section 11(a) of the Act
and Rule 158 under the Act.
(d) The Company will furnish to the Representatives
copies of the Registration Statement, including all exhib-
its, any related preliminary prospectus, any related pre-
liminary prospectus supplement, the Prospectus and all
amendments and supplements to such documents, in each case
<PAGE>
-9-
as soon as available and in such quantities as are reason-
ably requested.
(e) The Company will arrange for the qualification
of the Securities for sale and the determination of their
eligibility for investment under the laws of such juris-
dictions as the Representatives may reasonably request and
will continue such qualifications in effect so long as
required for the distribution; provided that the Company
shall not be required to qualify to do business in any
jurisdiction where it is not now qualified or to file a
general consent to service of process in any jurisdiction.
(f) The Company will pay all costs, expenses, fees
and taxes incident to (i) the preparation, printing, fil-
ing and distribution under the Act of the Registration
Statement (including financial statements and exhibits),
each preliminary prospectus and all amendments and supple-
ments to any of them prior to or during the period speci-
fied in paragraph (b), (ii) the printing and delivery of
the Prospectus and all amendments or supplements to it
during the period specified in paragraph (b), (iii) the
printing and delivery of this Agreement, any Preliminary
and Supplemental Blue Sky Memoranda and all other docu-
ments printed and delivered in connection with the offer-
ing of the Offered Securities, (iv) the registration or
qualification of the Offered Securities for offer and sale
under the securities or Blue Sky laws of the several
states (including the reasonable fees and disbursements of
counsel for the Underwriters relating to such registration
or qualification relating thereto), (v) filings and clear-
ance with the National Association of Securities Dealers,
Inc. in connection with the offering of the Offered Secu-
rities, (vi) if provided in any applicable Terms Agree-
ment, the listing of the Offered Securities on a securi-
ties exchange and (vii) furnishing such copies of the Reg-
istration Statement, the Prospectus and all amendments and
supplements thereto as may be requested for use in connec-
tion with the offering or sale of the Offered Securities
by the Underwriters or by dealers to whom the Offered
Securities may be sold.
5. Conditions of the Underwriters' Obligations.
The several obligations of the Underwriters to purchase and pay
for the Offered Securities as provided herein are subject to
the satisfaction of each of the following conditions:
<PAGE>
-10-
(a) All representations and warranties of the Com-
pany contained in this Agreement shall be true and correct
in all material respects on the Closing Date with the same
force and effect as if made on and as of the Closing Date.
(b) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date, there shall not
have occurred (i) any downgrading, nor shall any notice
have been given of any intended or potential downgrading
or of any review for a possible change that does not indi-
cate an improvement, in the rating accorded any of the
Company's securities by any "nationally recognized statis-
tical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Act; (ii) any mate-
rial adverse change, in or affecting the business, finan-
cial position, stockholders' equity or results of opera-
tion of the Company and its subsidiaries, taken as a
whole, which, in the judgment of a majority in interest of
the Underwriters, including any Representatives, materi-
ally impairs the investment quality of the Offered Securi-
ties; (iii) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities
of the Company on any exchange or in the over-the-counter
market; (iv) any banking moratorium declared by Federal or
New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved,
any declaration of war by Congress or any other substan-
tial national or international calamity or emergency if,
in the reasonable judgment of a majority in interest of
the Underwriters, including any Representatives, the
effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable
to proceed with completion of the sale of and payment for
the Securities.
(c) You shall have received on the Closing Date an
opinion, dated the Closing Date, of counsel for the Com-
pany to the effect that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation
and has the corporate power and authority required to
carry on its business as it is currently being con-
ducted and to own its properties;
<PAGE>
-11-
(ii) this Agreement has been duly authorized,
executed and delivered by the Company and is a valid
and binding agreement of the Company, enforceable in
accordance with its terms except as (a) the enforce-
ability hereof may be limited by bankruptcy, insol-
vency, reorganization, fraudulent conveyance, morato-
rium or similar laws now or hereafter in effect
relating to creditors' rights generally, (b) the
availability of equitable remedies may be limited by
equitable principles of general applicability and
(c) rights to indemnity and contribution hereunder
may be limited by applicable law;
(iii) the applicable Indenture has been duly
qualified under the Trust Indenture Act, and has been
duly authorized, executed and delivered by the Com-
pany and (assuming the due authorization, execution
and delivery by the Trustee) is a valid and binding
agreement of the Company, enforceable in accordance
with its terms except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or
similar laws now or hereafter in effect relating to
creditors' rights generally and (b) rights of accel-
eration and the availability of equitable remedies
may be limited by equitable principles of general
applicability;
(iv) the Securities have been duly authorized
and, when executed and authenticated in accordance
with the provisions of the applicable Indenture and
delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be
entitled to the benefits of the applicable Indenture
and will be valid and binding obligations of the Com-
pany enforceable in accordance with their terms
except as (a) the enforceability thereof may be lim-
ited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws now
or hereafter in effect relating to creditors' rights
generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by
equitable principles of general applicability;
(v) if the Offered Securities are convertible
into Common Stock, the shares of Common Stock ini-
tially issuable upon conversion of such Offered
<PAGE>
-12-
Securities have been duly and validly authorized and
reserved for issuance upon such conversion by all
necessary corporate action and such shares, when
issued upon such conversion, will be duly authorized
and validly issued, fully paid and non-assessable,
and the issuance of such shares upon such conversion
will not be subject to preemptive or other similar
rights;
(vi) the Registration Statement has become
effective under the Act, and, to the knowledge of
such counsel, no stop order suspending its effective-
ness has been issued and no proceedings for that pur-
pose are pending before or threatened by the
Commission;
(vii) the statements under the captions "Descrip-
tion of Securities" and "Description of Capital
Stock" and, if applicable, "Certain Federal Income
Tax Considerations" in the Prospectus, as amended or
supplemented, insofar as such statements constitute a
summary of legal matters or documents, are accurate
in all material respects;
(viii) the execution, delivery, and performance of
this Agreement, the Indentures and the issuance and
sale of the Offered Securities and compliance by the
Company with all the provisions hereof and thereof
and the consummation of the transactions contemplated
hereby and thereby (a) will not require any consent,
approval, authorization or other order of any court,
regulatory body, administrative agency or other gov-
ernmental body (except as such may be required under
the securities or Blue Sky laws of the various
states) or (b) will not conflict with or constitute a
breach of any of the terms or provisions of the char-
ter or by-laws of the Company;
(ix) the Company is not an "investment company"
or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of
1940, as amended; and
(x) the Registration Statement and the Prospec-
tus and any supplement or amendment thereto (except
for financial statements, related schedules and sta-
tistical information of a financial nature as to
<PAGE>
-13-
which no opinion need be expressed) comply as to form
in all material respects with the Act, the Trust
Indenture Act and the applicable rules and regula-
tions of the Commission thereunder.
Such counsel shall additionally state that such
counsel has participated in conferences with officers
and other representatives of the Company, representa-
tives of the independent public accountants for the
Company and representatives of the Underwriters and
their counsel, at which the contents of the Registra-
tion Statement and the Prospectus and related matters
were discussed, and although such counsel is not
passing upon and does not assume responsibility for
the accuracy, completeness or fairness of the state-
ments contained in the Registration Statement and the
Prospectus, on the basis of the foregoing (relying as
to materiality to a large extent upon the opinions of
officers and other representatives of the Company),
no facts have come to the attention of such counsel
which would lead such counsel to believe that at the
time the Registration Statement became effective
either the Registration Statement or any amendment
thereto 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 in light of the circumstances in which they
were made not misleading or that the Prospectus, as
amended or supplemented at the date of the opinion,
contains an untrue statement of a material fact or
omits to state a material fact necessary in order to
make the statements therein, in the light of the cir-
cumstances under which they were made, not misleading
(except that no statement need be made as to the
financial statements or financial or statistical data
contained or incorporated therein).
In rendering such opinions, such counsel may state
that they have examined the originals, photocopies or
conformed copies of all such records of the Company
and its subsidiaries and all such agreements, certif-
icates of public officials, certificates of officers
and representatives of the Company and its subsidiar-
ies and such other documents as they have deemed
relevant and necessary as a basis for the opinions
expressed therein. Such counsel may assume the genu-
ineness of all signatures on original documents and
<PAGE>
-14-
the conformity to the originals of all copies submit-
ted to them as conformed or photocopies. As to vari-
ous questions of fact material to their opinion, such
counsel may rely upon representations, statements or
certificates of public officials, officers and repre-
sentatives of the Company and its subsidiaries and
others. Such counsel may also state that they are
admitted to practice in the State of New York and do
not express any opinion on any laws other than the
laws of the State of New York, the General Corpora-
tion Law of the State of Delaware and federal law.
(d) You shall have received on the Closing Date an
opinion, dated the Closing Date, of the General Counsel of
the Company to the effect that:
(i) the Company is duly qualified and is in
good standing as a foreign corporation and is autho-
rized to do business in each jurisdiction in which
the nature of its business or its ownership or leas-
ing of property requires such qualification, except
where the failure to be so qualified or to be in good
standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(ii) such counsel does not know of any legal or
governmental proceeding pending or threatened to
which the Company or any of its subsidiaries is a
party or to which any of their respective property is
subject which is required to be described in the Reg-
istration Statement or the Prospectus and is not so
described, or of any contract or other document which
is required to be described in the Registration
Statement or the Prospectus or is required to be
filed as an exhibit to the Registration Statement
which is not described or filed as required;
(iii) the execution, delivery and performance of
this Agreement, the Indentures and the issuance and
sale of the Offered Securities and compliance by the
Company with all the provisions hereof and thereof
and the consummation of the transactions contemplated
hereby and thereby (a) to such counsel's knowledge,
will not conflict in any material respect with or
constitute a material breach of any of the terms or
provisions of, or a material default under, the char-
ter or by-laws of any of the Company's subsidiaries
<PAGE>
-15-
or any agreement, indenture or other instrument to
which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsid-
iaries or their respective properties is bound, and
which is material to the Company and its subsidiar-
ies, taken as a whole, or (b) to such counsel's
knowledge, will not violate or conflict in any mate-
rial respect with any laws, administrative regula-
tions or rulings or court decrees applicable to the
Company or any of its subsidiaries or their respec-
tive properties (other than Blue Sky or state securi-
ties laws as to which such counsel need express no
opinion);
(iv) to the knowledge of such counsel, each doc-
ument filed pursuant to the Exchange Act and incorpo-
rated by reference in the Registration Statement and
the Prospectus (except for financial statements,
related schedules and statistical information of a
financial nature contained or incorporated therein as
to which such counsel need not express any opinion)
complied when so filed as to form in all material
respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder.
(e) You shall have received on the Closing Date an
opinion, dated the Closing Date, of counsel for the Under-
writers, as to the matters referred to in clauses
(ii)-(vii), but also with respect to the statements under
the caption "Underwriting" or similar heading relating to
the plan of distribution of the Offered Securities and
clause (x) of the foregoing paragraph (c) and with respect
to the matters referred to in the penultimate subparagraph
of paragraph (c). In giving such opinion with respect to
the matters covered by clause (x) and such penultimate
subparagraph such counsel may state that their opinion and
belief are based upon their participation in the prepara-
tion of the Registration Statement and Prospectus and any
amendments or supplements thereto (other than documents
incorporated by reference) and review and discussion of
the contents thereof (including documents incorporated by
reference), but are without independent check or verifica-
tion except as specified.
(f) You shall have received a letter on and as of
the Closing Date, in form and substance satisfactory to
the Representatives, from Coopers & Lybrand, independent
<PAGE>
-16-
public accountants, with respect to the financial state-
ments and certain financial information contained in or
incorporated by reference into the Registration Statement
and the Prospectus.
(g) The Company shall not have failed at or prior to
the Closing Date to perform or comply in any material
respect with any of the agreements herein contained and
required to be performed or complied with by the Company
at or prior to the Closing Date.
6. Indemnification. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages, liabilities
and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omis-
sion or alleged omission to state therein a material fact
required to be stated therein or necessary to make the state-
ments therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the fore-
going indemnity with respect to any Prospectus or preliminary
prospectus shall not inure to the benefit of any Underwriter if
a copy of the Prospectus (excluding documents incorporated by
reference therein) as amended or supplemented had not been sent
or given by or on behalf of such Underwriter to the person
asserting such losses, claims, damages or liabilities at or
prior to the written confirmation of the sale of Offered Secu-
rities to such person and the untrue statement or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact that is found to be or is
alleged to be the basis of liability in such Prospectus or such
preliminary prospectus was corrected in the Prospectus as
amended or supplemented; and provided, further, 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 reliance upon and in
conformity with written information furnished to the Company by
any Underwriter expressly for use in the Registration State-
ment, Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
<PAGE>
-17-
(b) In case any action shall be brought against any
Underwriter or any person controlling such Underwriter, based
upon any preliminary prospectus, the Registration Statement or
the Prospectus or any amendment or supplement thereto and with
respect to which indemnity may be sought against the Company,
such Underwriter shall promptly notify the Company in writing
and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such indem-
nified party and payment of all fees and expenses. Any Under-
writer or any such controlling person shall have the right to
employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or such controlling
person unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company,
(ii) the Company shall have failed to assume the defense and
employ counsel or (iii) the named parties to any such action
(including any impleaded parties) include both such Underwriter
or such controlling person and the Company and such Underwriter
or such controlling person shall have been advised by such
counsel that there may be one or more legal defenses available
to it which are different from or additional to those available
to the Company (in which case the Company shall not have the
right to assume the defense of such action on behalf of such
Underwriter or such controlling person, it being understood,
however, that the Company shall not, in connection with any one
such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same gen-
eral allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addi-
tion to any appropriate local counsel) for all such Underwrit-
ers and controlling persons). The Company shall not be liable
for any settlement of any such action effected without its
written consent but if settled with the written consent of the
Company, the Company agrees to indemnify and hold harmless any
Underwriter and any such controlling person from and against
any loss or liability by reason of such settlement. No indem-
nifying party shall, without the prior written consent of the
indemnified party (which shall not be unreasonably withheld),
effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is a named party or
threatened to be named and indemnity could have been sought
hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of
such proceeding.
<PAGE>
-18-
(c) Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its direc-
tors, its officers who sign the Registration Statement and any
person controlling the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each
Underwriter but only with reference to information furnished in
writing by or on behalf of such Underwriter to the Representa-
tives expressly for use in the Registration Statement, the Pro-
spectus or any preliminary prospectus. In case any action
shall be brought against the Company, any of its directors, any
such officer or any person controlling the Company based on the
Registration Statement, the Prospectus or any preliminary pro-
spectus and in respect of which indemnity may be sought against
the Underwriter, the Underwriter shall have the rights and
duties given to the Company (except that if the Company shall
have assumed the defense thereof, such Underwriter shall not be
required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of
such counsel shall be at the expense of such Underwriter), and
the Company, its directors, any such officer and any person
controlling the Company shall have the rights and duties given
to the Underwriter, by Section 6(b) hereof.
(d) If the indemnification provided for in this
Section 6 is unavailable to an indemnified party in respect of
any losses, claims, damages, liabilities or judgments referred
to therein, then each indemnifying party, in lieu of indemnify-
ing such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such
losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on
the other hand from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not per-
mitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the
Underwriters in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable consider-
ations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting
expenses) received by the Company, and the total underwriting
discounts and commissions received by the Underwriters, bear to
the total price to the public of the Offered Securities, in
<PAGE>
-19-
each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Under-
writers 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 or
the Underwriters 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
Section 6(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 in the
immediately preceding paragraph. The amount paid or payable by
an indemnified party as a result of the losses, claims, dam-
ages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses rea-
sonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwith-
standing the provisions of this Section 6, no Underwriter shall
be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities under-
written 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 mean-
ing of Section 11(f) of the Act) shall be entitled to contribu-
tion from any person who was not guilty of such fraudulent mis-
representation. The Underwriters' obligations to contribute
pursuant to this Section 6(d) are several in proportion to the
respective number of Securities purchased by each of the Under-
writers hereunder and not joint. Each party entitled to con-
tribution agrees that upon the service of a summons or other
initial legal process upon it in any action instituted against
it in respect to which contribution may be sought, it shall
promptly give written notice of such service to the party or
parties from whom contribution may be sought, but the omission
so to notify such party or parties of any such service shall
not relieve the party from whom contribution may be sought for
any obligation it may have hereunder or otherwise.
<PAGE>
-20-
7. Substitution of Underwriters.
(a) The Company shall not be obligated to deliver
any Offered Securities except upon payment for all the
Offered Securities to be purchased hereunder or as herein-
after provided.
(b) If on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase the Offered
Securities which it or they have agreed to purchase here-
under on such date and the aggregate number of Offered
Securities which such defaulting Underwriter or Underwrit-
ers, as the case may be, agreed but failed or refused to
purchase is not more than one-tenth of the total number of
Offered Securities to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be
obligated severally, in the proportion which the number of
Offered Securities set forth opposite its name in
Schedule I to the Terms Agreement bears to the total num-
ber of Offered Securities which all the non-defaulting
Underwriters, as the case may be, have agreed to purchase,
or in such other proportion as the Representatives may
specify, to purchase the Offered Securities which such
defaulting Underwriter or Underwriters, as the case may
be, agreed but failed or refused to purchase on such date;
provided that in no event shall the number of Offered
Securities which any Underwriter has agreed to purchase
pursuant to Section 3 hereof be increased pursuant to this
Section 7 by an amount in excess of one-ninth of such num-
ber of Securities without the written consent of such
Underwriter. If on the Closing Date any Underwriter or
Underwriters shall fail or refuse to purchase Offered
Securities and the aggregate number of Offered Securities
with respect to which such default occurs is more than
one-tenth of the aggregate number of Offered Securities to
be purchased on such date by all Underwriters and arrange-
ments satisfactory to the Representatives and the Company
for purchase of such Offered Securities are not made
within 48 hours after such default, this Agreement will
terminate without liability on the part of any
non-defaulting Underwriter and the Company. In any such
case which does not result in termination of this Agree-
ment, either the Representatives or the Company shall have
the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required
changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be
<PAGE>
-21-
effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liabilities in
respect of any default of any such Underwriter under this
Agreement.
8. Survival of Certain Representations and Obliga-
tions. The respective indemnities, contribution agreements,
representations, warranties and other statements of the Com-
pany, its officers and directors and of the several Underwrit-
ers set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive
delivery of and payment for the Offered Securities, regardless
of (i) any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter or by or on
behalf of the Company, the officers or directors of the Company
or any controlling person of the Company, (ii) acceptance of
the Offered Securities and payment for them hereunder and
(iii) termination of this Agreement.
If the Terms Agreement is terminated pursuant to
Section 7 or if for any reason the purchase of the Securities
by the Underwriters under the Terms Agreement is not consum-
mated, the Company shall remain responsible for the expenses to
be paid or reimbursed by it pursuant to Section 4 and the
respective obligations of the Company and the Underwriters pur-
suant to Section 6 shall remain in effect. If the purchase of
the Securities by the Underwriters is not consummated for any
reason other than solely because of the termination of the
Terms Agreement pursuant to Section 7 or the occurrence of any
event specified in clause (iii), (iv) or (v) of Section 5(b) or
the failure of counsel to the Underwriters to deliver its opin-
ion pursuant to Section 5(e), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including reason-
able fees and disbursement of counsel) reasonably incurred by
them in connection with the offering of the Securities.
9. Notices. All communications hereunder will be
in writing and, if sent to the Underwriters, will be mailed,
delivered or sent by facsimile and confirmed to them at their
addresses furnished to the Company in writing for the purpose
of communications hereunder or, if sent to the Company, will be
mailed, delivered or sent by facsimile and confirmed to it at
Engelhard Corporation, 101 Wood Avenue, Iselin, NJ 08830,
attention: General Counsel.
10. Successors. This Agreement will inure to the
benefit of and be binding upon the Company and such
<PAGE>
-22-
Underwriters as are identified in the Terms Agreement and their
respective successors and the officers and directors and con-
trolling persons referred to in Section 6, and no other person
will have any right or obligation hereunder.
11. Applicable Law. This Agreement and the Terms
Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect
to the conflict of laws provisions thereof.
<PAGE>
EXHIBIT A
TERMS AGREEMENT
__________, 199_
ENGELHARD CORPORATION
101 Wood Avenue
Iselin, NJ 08830
Attention: [ ]
Ladies and Gentlemen:
We (the "Representative(s)") understand that
Engelhard Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell $______________ [aggregate principal
amount] of its [title of securities] (the "Offered Securi-
ties"). Subject to the terms and conditions set forth or
incorporated by reference herein, the Underwriters named in
Schedule I attached hereto offer to purchase, severally and not
jointly, the Offered Securities. The Closing Date shall be
________, 199_, at ______ A.M. at the offices of
______________________.
All the provisions contained in the Underwriting
Agreement Basic Provisions dated ______ 1995 (the "Basic Provi-
sions"), a copy of which is attached as an Exhibit hereto, are
herein incorporated by reference in their entirety and shall be
deemed to be a part of this Terms Agreement to the same extent
as if the Basic Provisions had been set forth in full herein.
Terms defined in the Basic Provisions are used herein as
therein defined.
The Offered Securities shall have the following
terms:
DEBT SECURITIES
Title:
Maturity:
Interest Rate:
Interest payment dates:
Redemption provisions:
Conversion Provisions:
Purchase Price: ___% of the principal amount thereof
Public Offering Price: ___% of the principal amount
thereof, plus accrued
interest from _______________
Additional Terms:
Please accept this offer no later than ______ o'clock
_.M. on __________, 199_, by signing a copy of this Terms
Agreement in the space set forth below and returning the signed
copy to us, or by sending us a written acceptance in the fol-
lowing form:
"We hereby accept the Representatives' offer, set
forth in the Terms Agreement, dated __________, 199_, to pur-
chase the Offered Securities on the terms set forth therein."
Very truly yours,
[UNDERWRITER]
By_______________________
Name:
Title:
Address:
Attention:
Accepted:
ENGELHARD CORPORATION
By_____________________________
Name:
Title:
<PAGE>
SCHEDULE I
Amount of Offered
Underwriter[s] Securities to Be Purchased_
____________
Total:
<PAGE>
Exhibit to
Terms Agreement
[Attach copy of Underwriting Agreement Basic Provisions]
<PAGE>
EXHIBIT B
[ENGELHARD CORPORATION]
[Insert specific title of securities*]
DELAYED DELIVERY CONTRACT
[Insert date of initial public offering]*
ENGELHARD CORPORATION
101 Wood Avenue
Iselin, NJ 08830
Gentlemen:
The undersigned hereby agrees to purchase from
[Engelhard Corporation (the "Company")] and the Company agrees
to sell to the undersigned [If one delayed closing, insert --
as of the date hereof, for delivery on , 19
("Delivery Date")]
[$___________ aggregate principal amount of the Company's
[title of Securities] (the "Securities"), offered by the Compa-
ny's Prospectus relating thereto, receipt of a copy of which is
hereby acknowledged, at a purchase price of % of the princi-
pal amount thereof plus accrued interest, if any, and on the
further terms and conditions set forth in this contract.]
[If two or more delayed closings, insert the
following:
The undersigned will purchase from the Company as of
the date hereof, for delivery on the dates set forth below,
Securities in the amounts set forth below:
Delivery Date Amount
_____________________ _______________________
_____________________ _______________________
___________________
* To be completed when the Terms Agreement is executed by the parties
thereto.
<PAGE>
-2-
Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities which the undersigned has
agreed to purchase for delivery on [the] [each] Delivery Date
shall be made to the Company or its order by certified or offi-
cial bank check in New York Clearing House funds (or as other-
wise specified in the Terms Agreement) at the office of
at .M., time, on such Delivery Date
upon delivery to the undersigned of the Securities to be pur-
chased by the undersigned for delivery on such Delivery Date in
definitive form and in such denominations and registered in
such names as the undersigned may designate by written or fac-
simile communication addressed to the Company not less than
five full business days prior to such Delivery Date. If no des-
ignation is received, the Securities will be registered in the
name of the undersigned and issued in a denomination equal to
the aggregate amount of Securities to be purchased by the
undersigned on such Delivery Date.
The obligation of the undersigned to take delivery
of, and make payment for, Securities on [the] [each] Delivery
Date shall be subject only to the conditions that (1) invest-
ment in the Securities shall not at such Delivery Date be pro-
hibited under the laws of any jurisdiction in the United States
to which the undersigned is subject, which investment the
undersigned represents is not prohibited on the date hereof and
(2) the Company shall have delivered to the Underwriters the
amount of the Securities to be purchased by them pursuant to
the Underwriting Agreement referred to in the Prospectus men-
tioned above and received payment therefor. The obligation of
the undersigned to take delivery of and make payment for Secu-
rities hereunder, and the obligation of the Company to sell and
deliver Securities hereunder, shall not be affected by the
failure of any purchaser to take delivery of and make payment
for Securities pursuant to other contracts similar to this con-
tract. As a material inducement to the acceptance of this
offer by the Company, the undersigned represents and warrants
to the Representatives that its investment in the Securities
which the undersigned hereby offers to purchase is not, as of
the date hereof, prohibited under the laws of any jurisdiction
to which the undersigned is subject and which govern such
investment, and the undersigned will, if the Securities are
being purchased by the undersigned under a "basket" clause or
similar authorization, use its best efforts to reserve an
amount thereunder sufficient to permit such purchase on the
Delivery Date.
<PAGE>
-3-
Promptly after completion of the sale to the Under-
writers, the Company will mail or deliver to the undersigned at
its address set forth below notice to such effect, accompanied
by a copy of the opinion of counsel for the Company delivered
to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents
and warrants to the Company that all necessary corporate action
for the due execution and delivery of this contract and the
payment for and purchase of the Securities which the under-
signed hereby offers to purchase has been taken by it and no
further authorization or approval of any governmental or other
regulatory authority is required for such execution, delivery,
payment or purchase, and that, upon acceptance hereof by the
Company and mailing or delivery of a copy as provided below,
this contract will constitute a valid and binding agreement of
the undersigned in accordance with its terms.
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective succes-
sors, but will not be assignable by either party hereto without
the written consent of the other.
It is understood that the acceptance of this contract
and any other similar contracts is in the Company's sole dis-
cretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this contract is acceptable
to the Company, it is requested that the Company sign the form
of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the
undersigned when such counterpart is mailed or delivered.
<PAGE>
-4-
THIS CONTRACT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
Very truly yours,
______________________________
(Name of Purchaser)
By____________________________
______________________________
(Title of Signatory)
______________________________
______________________________
(Address of Purchaser)
Accepted, as of the above date.
ENGELHARD CORPORATION
By_______________________________
(Title of Signatory)
Exhibit 1.2
ENGELHARD CORPORATION
$___,000,000
Medium-Term Notes, Series __
Due from 9 months to 30 Years from Date of Issue
Form of DISTRIBUTION AGREEMENT
________________, 19__
[Names and addresses of Agents]
_____________________________________
_____________________________________
_____________________________________
Dear Sirs:
Engelhard Corporation, a Delaware corporation (the
"Company"), confirms its agreement with each of you with
respect to the issue and sale from time to time by the Company
of its Medium-Term Notes, Series __ due from 9 months to 30
years from date of issue (the "Securities") in an aggregate
initial offering price of up to $ (or the equivalent
thereof in one or more foreign currencies or composite curren-
cies) and agrees with each of you (individually, an "Agent",
and collectively, the "Agents", which term shall include any
additional agents appointed pursuant to Section 13 hereof) as
set forth in this Agreement. The Securities will be issued
under an indenture dated as of __________, 1995 (the "Inden-
ture") between the Company and The Chase Manhattan Bank, N.A.,
as Trustee (the "Trustee"). The Securities shall have the
maturities, interest rates, redemption provisions, if any, and
other terms set forth in the Prospectus referred to below as it
may be amended or supplemented from time to time. The Securi-
ties will be issued, and the terms and rights thereof estab-
lished, from time to time by the Company in accordance with the
Indenture.
On the basis of the representations and warranties
herein contained, but subject to the terms and conditions
<PAGE>
-2-
stated herein and to the reservation by the Company of the right to sell
Securities directly to investors on its own behalf and to add additional
Agents pursuant to Section 13 hereof, the Company hereby (i) appoints the
Agents as the exclusive agents of the Company for the purpose of soliciting
and receiving offers to purchase Securities from the Company by others
pursuant to Section 2(a) hereof and (ii) agrees that, except as otherwise
contemplated herein, whenever it determines to sell Securities directly to
any Agent as principal, it will enter into a separate agreement (each such
agreement a "Terms Agreement"), substantially in the form of Exhibit A
hereto, relating to such sale in accordance with Section 2(b) hereof.
The Company has prepared and filed a registration statement on
Form S-3 (No. 33- ) in respect of the Securities with the Securities
and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "Securities
Act"). The Company also has filed with, or proposes to file with, the
Commission pursuant to Rule 424 under the Securities Act supplements to the
prospectus included in the Registration Statement that will describe
certain terms of the Securities. The Registration Statement, including the
exhibits thereto, as amended to the Commencement Date (as hereinafter
defined) is hereinafter referred or as the "Registration Statement" and the
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement or supplements (each a
"Prospectus Supplement") specifically relating to the Securities in the
form filed with, or transmitted for filing to, the Commission pursuant to
Rule 424 under the Securities Act is hereinafter referred to as the
"Prospectus". Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to
Rule 424 or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act which were filed under the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Exchange Act") on or before the date of this
Agreement or the date of the Basic Prospectus, any preliminary prospectus
or the Prospectus, as the case may be; and any reference to "amend",
"amendment" or "supplement" with respect to the Registration Statement, the
Basic Prospectus, any preliminary prospectus or the Prospectus,
<PAGE>
-3-
including any supplement to the Prospectus that sets forth only the terms
of a particular issue of the Securities (a "Pricing Supplement"), shall be
deemed to refer to and include any documents filed under the Exchange Act
after the date of this Agreement, or the date of the Basic Prospectus, any
preliminary prospectus or the Prospectus, as the case may be, which are
deemed to be incorporated by reference therein.
1. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, each Agent as of the
Commencement Date (as hereinafter defined), as of each date on which the
Company accepts an offer to purchase Securities (including any purchase by
an Agent as principal pursuant to a Terms Agreement or otherwise), as of
each date the Company issues and sells Securities and as of each date the
Registration Statement or the Basic Prospectus is amended or supplemented,
as follows (it being understood that such representations and warranties
shall be deemed to relate to the Registration Statement, the Basic
Prospectus and the Prospectus, each as amended or supplemented to each such
date):
(a) The Company meets the requirements for use of Form S-3
under the Securities Act and the Registration Statement (i) has been
prepared by the Company in conformity with the requirements of the
Securities Act and (ii) has become effective. Copies of the
Registration Statement, the Prospectus and all documents incorporated
by reference therein which were filed with the Commission on or prior
to the date of this Agreement have been delivered to each Agent.
(b) The Registration Statement, any post-effective amendment
thereto, and the Prospectus, and any amendment or supplement thereto,
comply or will comply, in all material respects, with the
requirements of the Securities Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"); and no such document
includes or will include an untrue statement of a material fact or
omits or will omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement
or the Prospectus in reliance upon and in conformity with written
information furnished to the Company by any Agent specifically for
inclusion therein.
<PAGE>
-4-
(c) The documents incorporated by reference in the
Registration Statement or the Prospectus, when they became effective
or were filed with the Commission, as the case may be, under the
Exchange Act, complied, and any further documents so filed and
incorporated by reference will, when they are filed with the
Commission, comply, in all material respects with the requirements of
the Securities Act and the Exchange Act, as applicable.
(d) The Company and each of its "significant subsidiaries"
within the meaning of Regulation S-X under the Act ("Significant
Subsidiaries") have been duly incorporated, are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation and have the corporate power and
authority to carry on their respective businesses as currently con-
ducted and to own, lease and operate properties, and the Company is
duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction, except where the
failure to be so qualified would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(e) The execution, delivery and performance of this Agreement,
the Indenture and the Securities, and compliance by the Company with
all the provisions hereof and thereof, and the consummation of the
transactions contemplated hereby and thereby (i) will not require any
consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
(except as such may be required under the securities or Blue Sky laws
of the various states), (ii) will not conflict with or constitute a
breach of the terms or provisions of the charter or by-laws of the
Company, (iii) will not conflict in any material respect with or
constitute a material breach of any of the terms or provisions of, or
a material default under, the charter or by-laws of any of the
Company's subsidiaries or any agreement, indenture or other
instrument to which the Company or any of its subsidiaries or their
respective property is bound, and which is material to the Company
and its subsidiaries, taken as a whole, or (iv) will not violate or
conflict in any material respect with any laws, administrative
regulations or rulings or court decrees applicable to the Company,
any of its subsidiaries or their respective properties.
<PAGE>
-5-
(f) This Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable in accordance with its terms except as (i) the
enforceability hereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws now
or hereafter in effect relating to creditors' rights generally and
(ii) the availability of equitable remedies may be limited by
equitable principles of general applicability and (iii) rights to
indemnity and contribution hereunder may be limited by applicable
law.
(g) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized by the Company and
constitutes a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws now
or hereafter in effect relating to creditors' rights generally and
(ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability.
(h) The Securities, when executed by the Company and
authenticated by the Trustee in accordance with the terms of the
Indenture, and delivered to and paid for by the purchasers in
accordance with the terms of this Agreement and any applicable Terms
Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability.
(i) The Securities will conform in all material respects to
the descriptions thereof in the Prospectus.
(j) Immediately after any sale of Securities by the Company
hereunder or under any applicable Terms Agreement, the aggregate
amount of Securities which shall have been issued and sold by the
Company hereunder or under any Terms Agreement and of any debt
securities of the Company
<PAGE>
-6-
(other than the Securities) that shall have been issued and sold
pursuant to the Registration Statement will not exceed the amount of
debt securities registered under the Registration Statement.
(k) Other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings (including without
limitation environmental proceedings) pending against the Company or
any of its subsidiaries which the Company believes is likely to have
a material adverse effect on the business, prospects, financial posi-
tion, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein
set forth, each of the Agents hereby severally and not jointly agrees, as
agent of the Company, to use its reasonable efforts to solicit offers to
purchase the Securities from the Company upon the terms and conditions set
forth in the Prospectus as amended or supplemented from time to time. So
long as this Agreement shall remain in effect with respect to any Agent,
the Company shall not, without the consent of such Agent, solicit or accept
offers to purchase, or sell, Securities or any other debt securities with a
maturity at the time of original issuance of 9 months to 30 years except
pursuant to this Agreement and any Terms Agreement, or except pursuant to a
private placement not constituting a public offering under the Securities
Act or except in connection with a firm commitment underwriting pursuant to
an underwriting agreement that does not provide for a continuous offering
of medium-term debt securities. However, the Company reserves the right to
sell, and may solicit and accept offers to purchase, Securities directly on
its own behalf to investors.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Securities. Upon
receipt of at least one business day's prior notice from the Company, each
Agent will suspend solicitation of offers to purchase Securities from the
Company until such time as the Company has advised such Agent or Agents
that such solicitation may be resumed. During the period of time that such
solicitation is suspended, the Company shall not be required to deliver any
opinions, letters or certificates in accordance with Sections 4(i), 4(j)
and 4(k); provided that if
<PAGE>
-7-
the Registration Statement or Prospectus is amended or supplemented during
the period of suspension (other than by an amendment or supplement
providing solely for a change in the interest rates, redemption provisions,
amortization schedules or maturities offered for the Securities or for a
change that the Agents deem to be immaterial), no Agent shall be required
to resume soliciting offers to purchase Securities until the Company has
delivered such opinions, letters and certificates as such Agent may
reasonably request.
The Company agrees to pay each Agent, as consideration for the
sale of each Security resulting from a solicitation made or an offer to
purchase received by such Agent, a commission in the form of a discount
from the purchase price of such Security in an amount equal to the
following applicable percentage of the principal amount of such Security
sold:
<TABLE>
<CAPTION>
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities sold
<S> <C>
From 9 months to less than 1 year.................. .___%
From 1 year to less than 18 months................. .___%
From 18 months to less than 2 years................ .___%
From 2 years to less than 3 years.................. .___%
From 3 years to less than 4 years.................. .___%
From 4 years to less than 5 years.................. .___%
From 5 years to less than 6 years.................. .___%
From 6 years to less than 7 years.................. .___%
From 7 years to less than 10 years................. .___%
From 10 years to less than 15 years................ .___%
From 15 years to less than 20 years................ .___%
20 years and more.................................. .___%
</TABLE>
The Agents are authorized to solicit offers to purchase
Securities only in the principal amount of $________ (or, in the case of
Securities not denominated in U.S. dollars, the equivalent thereof in the
applicable foreign currency or composite currency, rounded down to the
nearest 1,000 units of such foreign currency or composite currency) or any
amount in excess thereof which is an integral multiple of $__________ (or,
in the case of Securities not denominated in U.S. dollars, 1,000 units of
such foreign currency or composite currency). Each Agent shall communicate
to the Company, orally or in writing, each offer to purchase Securities
received by such Agent
<PAGE>
-8-
as agent that in its judgment should be considered by the Company. The
Company shall have the sole right to accept offers to purchase the
Securities and may reject any such offer in whole or in part. Each Agent
shall have the right, in its sole discretion, to reject any offer to
purchase Securities, as a whole or in part, that it considers to be
unacceptable and any such rejection shall not be deemed a breach of its
agreements herein contained. The procedural details relating to the issue
and delivery of Securities sold by an Agent as agent and the payment
therefor will be as mutually agreed upon by the Company and such Agent (the
"Administrative Procedures").
(b) Purchase as Principal. Each sale of Securities to any
Agent as principal shall be made in accordance with the terms of this
Agreement and a Terms Agreement which will provide for the sale of such
Securities to, and the purchase thereof by, such Agent. A Terms Agreement
will be substantially in the form of Exhibit A hereto but may take the form
of an oral agreement (confirmed in writing) or an exchange of any standard
form of written telecommunication between an Agent and the Company and may
also specify certain provisions relating to the reoffering of such
Securities by such Agent. The commitment of any Agent to purchase
Securities as principal, whether pursuant to any Terms Agreement or
otherwise, shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein and in the applicable Terms
Agreement set forth. Each agreement by an Agent to purchase Securities as
principal (pursuant to a Terms Agreement or otherwise) shall specify the
principal amount of Securities to be purchased by such Agent pursuant
thereto, the price to be paid to the Company for such Securities, the
maturity date of such Securities, the interest rate or interest rate basis,
if any, applicable to such Securities, any other terms of such Securities,
the time and date and place of delivery of and payment for such Securities
(the time and date of any and each such delivery and payment, the "Time of
Delivery"), any provisions relating to rights of, and default by,
underwriters acting together with such Agent in the reoffering of
Securities, and shall also specify any requirements for opinions of coun-
sel, accountants' letters and officers' certificates pursuant to Section 4
hereof. The Agent may engage the services of any other broker or dealer in
connection with the resale of the Notes purchased as principal and may
allow any portion of the discount received in connection with such
purchases from the Company to such brokers and dealers. Unless otherwise
specified in a Terms Agreement, the procedural details relating to
<PAGE>
-9-
the issue and delivery of Securities purchased by an Agent as principal and
the payment therefor shall be as set forth in the Administrative
Procedures.
(c) Obligations Several. The Company acknowledges that the
obligations of the Agents are several and not joint and, subject to the
provisions of this Section 2, each Agent shall have complete discretion as
to the manner in which it solicits purchasers for the Securities and as to
the identity thereof.
(d) Other Securities. The Company agrees to notify each Agent
of sales by the Company of other debt securities sold under the
Registration Statement (other than the Securities).
3. Commencement Date. The documents required to be
delivered pursuant to Section 6 hereof on the Commencement Date (as defined
below) shall be delivered to the Agents at the offices of
________________________________________, New York, New York, at 11:00
a.m., New York City time, on the date of this Agreement, which date and
time of such delivery may be postponed by agreement between the Agents and
the Company but in no event shall be later than the day prior to the date
on which solicitation of offers to purchase Securities is commenced or the
first date on which the Company accepts an offer by any Agent to purchase
Securities as principal (such time and date being referred to herein as the
"Commencement Date").
4. Covenants of the Company. The Company covenants and
agrees with each Agent:
(a) (i) To make no amendment or supplement to the
Registration Statement or the Prospectus prior to the termination of
the offering of the Securities pursuant to this Agreement or any
Terms Agreement which shall be disapproved by any Agent after
reasonable opportunity to comment thereon, provided, however, that
the foregoing shall not apply to any of the Company's periodic
filings with the Commission described in subsection (iii) below,
copies of which filings the Company will cause to be delivered to the
Agents promptly after their transmission to the Commission for
filing; (ii) subject to the foregoing clause (i), promptly to cause
each Prospectus Supplement to be filed with or transmitted for filing
to the Commission in accordance with Rule 424(b) under the Securities
Act and to prepare, with respect to any Securities to be sold
<PAGE>
-10-
through or to such Agent pursuant to this Agreement, a Pricing
Supplement with respect to such Securities in a form previously
approved by such Agent and to file such Pricing Supplement in
accordance with Rule 424(b) under the Securities Act; and (iii)
promptly to file 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 the Securities. The Company will
promptly advise each Agent (i) of the filing of any amendment or
supplement to the Basic Prospectus or any amendment to the
Registration Statement and of the effectiveness of any such amendment
to the Registration Statement, (ii) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration
Statement or any order preventing or suspending the use of any
prospectus relating to the Securities or the initiation or
threatening of any proceeding for that purpose, or of any request by
the Commission for any amendment or supplement of the Registration
Statement or Prospectus or for additional information; and (iii) of
the receipt by the Company of any notification with respect to any
suspension of the qualification of the Securities for offering or
sale in any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose. The Company agrees to use its best
efforts to prevent the issuance of any such stop order or of any such
order preventing or suspending the use of any such prospectus or of
any notification suspending any such qualification and, if issued, to
use promptly its best efforts to obtain withdrawal thereof as soon as
possible. If the Basic Prospectus is amended or supplemented as a
result of the filing under the Exchange Act of any document
incorporated by reference in the Prospectus, no Agent shall be
obligated to solicit offers to purchase Securities so long as it is
not reasonably satisfied with such document.
(b) To arrange for the qualification of the Securities for
sale and the determination of their eligibility for investment under
the laws of such jurisdictions as the Agents may reasonably request
and continue such qualifications in effect so long as required for
the distribution of the Securities; provided that the Company shall
not be required to qualify to do business in any jurisdiction
<PAGE>
-11-
where it is not now qualified or to file a general consent to service
of process in any jurisdiction.
(c) To furnish to each Agent copies of the Registration
Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as are
reasonably requested.
(d) If at any time when a prospectus relating to the
Securities is required to be delivered under the Securities Act, any
event shall occur as a result of which the Prospectus, as then
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
when such Prospectus is delivered to a purchaser, not misleading, or,
if in the opinion of the Agents or the Company, it is necessary at
any time to amend or supplement the Prospectus to comply with law, to
immediately notify the Agents by telephone (with confirmation in
writing) and request each Agent (i) in its capacity as agent of the
Company, to suspend solicitation of offers to purchase Securities
from the Company (and, if so notified, such Agent shall cease such
solicitations and cease using the Prospectus as soon as practicable,
but in any event not later than one business day later); and (ii) to
cease sales of any Securities such Agent may then own as principal.
If the Company shall decide to amend or supplement the Registration
Statement or the Prospectus, as then amended or supplemented, it
shall so advise each Agent promptly by telephone (with confirmation
in writing) and, at its expense, shall prepare and cause to be filed
promptly with the Commission an amendment or supplement to the
Registration Statement or the Prospectus, as then amended or supple-
mented, that will correct such statement or omission or effect such
compliance and will supply such amended or supplemented Prospectus to
the Agents in such quantities as they may reasonably request. If any
such amendment or supplement and any documents, opinions, letters and
certificates furnished to the Agents pursuant to Sections 4(e), 4(i),
4(j) and 4(k) in connection with the preparation and filing of such
amendment or supplement are satisfactory in all respects to the
Agents, upon the filing with the Commission of such amendment or
supplement to the Prospectus or upon the effectiveness of an
amendment to
<PAGE>
-12-
the Registration Statement, the Agents will resume the solicitation
of offers to purchase Securities hereunder. Notwithstanding any other
provision of this Section 4(a), until the distribution of any
Securities any Agent may own as principal has been completed or in
the event such Agent, in the opinion of its counsel, is otherwise
required to deliver a prospectus in respect of a transaction in the
Securities, if any event described in this Section 4(d) occurs the
Company will, at its own expense, promptly prepare and
file with the Commission an amendment or supplement that will correct
such statement or omission or effect such compliance, will supply
such amended or supplemented Prospectus to such Agent in such
quantities as such Agent may reasonably request.
(e) To notify the Agents promptly in writing of any
downgrading, or on its receipt of any notice of (i) any intended or
potential downgrading or (ii) any review or possible change that does
not indicate an improvement in the rating accorded any of securities
of, or guaranteed by, the Company by any "nationally recognized
statistical rating organization," as such term is defined for
purposes of Rule 436(g)(2) under the Securities Act.
(f) To make generally available to its security holders as
soon as reasonably practicable an earnings statement that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158
under the Securities Act.
(g) So long as any Securities are outstanding, to furnish to
such Agent copies of all reports or other communications (financial
or other) furnished to holders of Securities and copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed.
(h) That, from the date of any applicable Terms Agreement with
such Agent or other agreement by such Agent to purchase Securities as
principal and continuing to and including the business day following
the related Time of Delivery, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of or guaranteed by the
Company which are substantially similar to the Securities, without
the prior written consent of such Agent.
<PAGE>
-13-
(i) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an
amendment or supplement (x) providing solely for a change in the
interest rates, redemption provisions, amortization schedules or
maturities offered on the Securities, (y) setting forth or
incorporating by reference financial statements or other information
as of and for a fiscal quarter or (z) providing for a change the
Agents deem to be immaterial) and each time the Company sells
Securities to such Agent as principal pursuant to a Terms Agreement
or other agreement and such Terms Agreement or other agreement
specified the delivery of an opinion under this Section 4(i) as a
condition to the purchase of Securities pursuant to such Terms
Agreement or other agreement, the Company shall furnish or cause to
be furnished forthwith to such Agent written opinions of counsel for
the Company satisfactory to such Agent, dated the date of such
amendment or supplement, or the related Time of Delivery relating to
such sale, as the case may be, in form satisfactory to such Agent, of
the same tenor as the opinions referred to in Sections 6(b) and 6(c)
hereof but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to the date of such opinion,
or, in lieu of such opinion, counsel last furnishing such an opinion,
may furnish to the Agents a letter to the effect that such Agent may
rely on the opinion of such counsel which was last furnished to such
Agent to the same extent as though it were dated the date of such
letter (except that the statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to date of delivery of such letter).
(j) That each time the Registration Statement or the
Prospectus shall be amended or supplemented to include or incorporate
amended or supplemented financial information and each time the
Company sells Securities to such Agent as principal pursuant to a
Terms Agreement or other agreement and such Terms Agreement or other
agreement specifies the delivery of a letter under this Section 4(j)
as a condition to the purchase of Securities pursuant to such Terms
Agreement or other agreement, the Company shall cause the independent
certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement forthwith to
furnish such Agent a letter, dated the date of such amendment or
supplement
<PAGE>
-14-
or the related Time of Delivery relating to such sale, as the case
may be, in form satisfactory to such Agent, of the same tenor as the
letter referred to in Section 6(e) hereof but modified to relate to
the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter with such changes as may be
necessary to reflect such amended or supplemented financial informa-
tion included or incorporated by reference in the Registration
Statement or the Prospectus as amended or supplemented, provided,
however, that, with respect to any financial information or other
matter, such letter may reconfirm as true and correct at such date,
as though made at and as of such date, rather than repeat, statements
with respect to such financial information or other matter made in
the letter referred to in Section 6(e) hereof which was last
furnished to such Agent.
(k) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an
amendment or supplement (x) providing solely for a change in the
interest rates, redemption provisions, amortization schedules or
maturities offered on the Securities or (y) providing for a change
the Agents deem to be immaterial), and each time the Company sells
Securities to such Agent as principal and the applicable Terms
Agreement or other agreement specifies the delivery of a certificate
under this Section 4(k) as a condition to the purchase of Securities
pursuant to such Terms Agreement or other agreement, the Company
shall furnish or cause to be furnished forthwith to such Agent a
certificate signed by an executive officer of the Company, dated the
date of such amendment or supplement or the related Time of Delivery
relating to such sale, as the case may be, in form satisfactory to
such Agent, of the same tenor as the certificates referred to in
Section 6(f) but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to the date of delivery of
such certificate or to the effect that the statements contained in
the certificate referred to in Section 6(e) hereof which was last
furnished to such Agent are true and correct at such date as though
made at and as of such date (except that such statements shall be
deemed to relate to the Registration Statement and the Prospectus as
amended or supplemented to such date).
5. Costs and Expenses. The Company covenants and agrees
with each Agent that the Company will, whether or not
<PAGE>
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any sale of Securities is consummated, pay all costs and expenses incident
to the performance of its obligations hereunder and under any applicable
Terms Agreement, including without limiting the generality of the
foregoing, all costs and expenses: (i) incident to the preparation,
issuance, execution, authentication and delivery of the Securities,
including any expenses of the Trustee, (ii) incident to the preparation,
printing and filing under the Securities Act of the Registration Statement,
the Prospectus and any preliminary prospectus (including in each case all
exhibits, amendments and supplements thereto), (iii) incurred in connection
with the registration or qualification and determination of eligibility for
investment of the Securities under the laws of such jurisdictions as the
Agents (or in connection with any Terms Agreement, the applicable Agent)
may designate (including fees of counsel for the Agents (or such Agent) and
their disbursements), (iv) in connection with the listing of the Securities
on any stock exchange, (v) related to any filing with National Association
of Securities Dealers, Inc., (vi) in connection with the printing and
delivery of this Agreement, the Indenture, any Blue Sky Memoranda and any
Legal Investment Survey and the furnishing to the Agents and dealers of
copies of the Registration Statement and the Prospectus, including mailing
and shipping, as herein provided, (vii) payable to rating agencies in
connection with the rating of the Securities, and (viii) the fees and
disbursements of counsel for the Agents incurred in connection with the
offering and sale of the Securities, including any opinions to be rendered
by such counsel hereunder, up to a maximum amount to be agreed upon by the
Company and the Agents.
6. Conditions. The obligation of any Agent, as agent of the
Company, at any time ("Solicitation Time") to solicit offers to purchase
the Securities, the obligation of any Agent to purchase Securities as
principal pursuant to any Terms Agreement or otherwise, and the obligation
of any other purchaser to purchase Securities shall in each case be subject
(1) to the condition that all representations and warranties of the Company
herein and all statements of officers of the Company made in any
certificate furnished pursuant to the provisions hereof are true and
correct in all material respects (i) in the case of an Agent's obligation
to solicit offers to purchase Securities, at and as of such Solicitation
Time and (ii) in the case of any Agent's or any other purchaser's
obligation to purchase Securities, at and as of the time the Company
accepts the offer to purchase such Securities and, as the case may be, at
and as of the related Time of Delivery or time of purchase; (2) to the
condition that at or prior to such
<PAGE>
-16-
Solicitation Time, time of acceptance, Time of Delivery or time of
purchase, as the case may be, the Company shall have complied with all its
agreements and all conditions on its part to be performed or satisfied
hereunder; and (3) to the following additional conditions when and as
specified:
(a) Prior to such Solicitation Time or corresponding Time of
Delivery or time of purchase, as the case may be:
(i) the Prospectus as amended or supplemented
(including, if applicable, the Pricing Supplement) with respect
to such Securities shall have been filed with the Commission
pursuant to Rule 424(b) under the Securities Act within the
applicable time period prescribed for such filing by the rules
and regulations under the Securities Act; no stop order
suspending the effectiveness of the Registration Statement
shall be in effect 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 reasonable
satisfaction of such Agent;
(ii) there shall not have occurred any downgrading, nor
shall any notice have been given of (i) any intended or
potential downgrading or (ii) any review or possible change
that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act;
(iii) there shall not have been any material adverse
change in or affecting the business, prospects, 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 to such Solicitation Time or at the time such
offer to purchase was made, the effect of which in the judgment
of the applicable Agent makes it impracticable or inadvisable
to market the Securities on the terms and in the manner
contemplated in the Prospectus, as so amended or supplemented;
or
<PAGE>
-17-
(iv) (A) trading generally shall not have been
suspended or materially limited on or by the New York Stock
Exchange, (B) trading of any securities of or guaranteed by the
Company shall not have been suspended on any exchange or in any
over-the-counter market, (C) a general moratorium on commercial
banking activities in New York shall not have been declared by
either Federal or New York State authorities, or (D) there
shall not have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity
or crisis that, in the judgment of such Agent or Agents or of
such other purchaser, is material and adverse and which in the
judgment of such Agent or Agents or of other purchaser makes it
impracticable to market the Securities on the terms and in the
manner contemplated in the Prospectus as amended or
supplemented at the Solicitation Time or at the time such offer
to purchase was made.
(b) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, counsel for the
Company shall have furnished to the relevant Agent or Agents their
written opinion, dated the Commencement Date or Time of Delivery, as
the case may be, in form and substance satisfactory to such Agent or
Agents, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and has the corporate power
and authority required to carry on its business as it is
currently being conducted and to own its properties;
(ii) this Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the
Company and are valid and binding agreements of the Company,
enforceable in accordance with its terms except as (a) the
enforceability hereof and thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
or similar laws now or hereafter in effect relating to
creditors' rights generally, (b) the availability of equitable
remedies may be limited by
<PAGE>
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equitable principles of general applicability and (c) rights to
indemnity and contribution hereunder and thereunder may be
limited by applicable law;
(iii) the Indenture has been duly qualified under the
Trust Indenture Act, and has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery by the Trustee) is a valid and binding
agreement of the Company, enforceable in accordance with its
terms except as (a) the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws now or hereafter in
effect relating to creditors' rights generally and (b) rights
of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability;
(iv) the Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for in accordance with
the terms of this Agreement and any applicable Terms Agreement,
will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Company enforceable in
accordance with their terms except as (a) the enforceability
thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar
laws now or hereafter in effect relating to creditors' rights
generally and (b) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of
general applicability;
(v) the Registration Statement has become effective
under the Act, and, to the knowledge of such counsel, no stop
order suspending its effectiveness has been issued and no
proceedings for that purpose are pending before or threatened
by the Commission;
(vi) the statements under the captions "Description of
Securities" and, if applicable, "Certain Federal Income Tax
Considerations" in the Prospectus, as amended or supplemented,
insofar as such statements constitute a summary of legal
matters or documents, are accurate in all material respects;
<PAGE>
-19-
(vii) the execution, delivery, and performance of this
Agreement, any applicable Terms Agreement, the Indentures and
the issuance and sale of the Securities and compliance by the
Company with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and
thereby (a) will not require any consent, approval, authori-
zation or other order of any court, regulatory body,
administrative agency or other governmental body (except as
such may be required under the securities or Blue Sky laws of
the various states), or (b) will not conflict with or
constitute a breach of any of the terms or provisions of the
charter or by-laws of the Company;
(viii) the Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended; and
(ix) the Registration Statement and the Prospectus and
any supplement or amendment thereto (except for financial
statements, related schedules and statistical information of a
financial nature as to which no opinion need be expressed)
comply as to form in all material respects with the Act, the
Trust Indenture Act and the applicable rules and regulations of
the Commission thereunder.
Such counsel shall additionally state that such counsel
has participated in conferences, in person or by telephone,
with officers and other representatives of the Company,
representatives of the independent public accountants for the
Company and representatives of the Agents and their counsel, at
which the contents of the Registration Statement and the Pro-
spectus and related matters were discussed, and although such
counsel is not passing upon and does not assume responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus, on
the basis of the foregoing (relying as to materiality to a
large extent upon the opinions of officers and other
representatives of the Company), no facts have come to the
attention of such counsel which would lead such counsel to
believe that at the time the Registration Statement became
effective either the
<PAGE>
-20-
Registration Statement or any amendment thereto 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 in light of the circumstances in
which they were made not misleading or that the Prospectus, as
amended or supplemented at the date of the opinion, contains an
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading (except that no statement need be
made as to the financial statements or financial or statistical
data contained or incorporated therein).
In rendering such opinions, such counsel may state that
they have examined the originals, photocopies or conformed
copies of all such records of the Company and its subsidiaries
and all such agreements, certificates of public officials,
certificates of officers and representatives of the Company and
its subsidiaries and such other documents as they have deemed
relevant and necessary as a basis for the opinions expressed
therein. Such counsel may assume the genuineness of all
signatures on original documents and the conformity to the
originals of all copies submitted to them as conformed or
photocopies. As to various questions of fact material to their
opinion, such counsel may rely upon representations, statements
or certificates of public officials, officers and
representatives of the Company and its subsidiaries and others.
Such counsel may also state that they are admitted to practice
in the State of New York and do not express any opinion on any
laws other than the laws of the State of New York, the General
Corporation Law of the State of Delaware and federal law.
(c) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the General Counsel
of the Company shall have furnished to the relevant Agent or Agents
his written opinion, dated the Commencement Date or Time of Delivery,
as the case may be, in form and
<PAGE>
-21-
substance satisfactory to such Agent or Agents, to the effect that:
(i) the Company is duly qualified and is in good
standing as a foreign corporation and is authorized to do
business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified or
to be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole;
(ii) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of their respective property is subject which is required to be
described in the Registration Statement or the Prospectus and
is not so described, or of any contract or other document which
is required to be described in the Registration Statement or
the Prospectus or is required to be filed as an exhibit to the
Registration Statement which is not described or filed as
required;
(iii) the execution, delivery, and performance of this
Agreement, any applicable Terms Agreement, the Indentures and
the issuance and sale of the Securities and compliance by the
Company with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and
thereby (a) to such counsel's knowledge, will not conflict in
any material respect with or constitute a material breach of
any of the terms or provisions of, or a material default under,
the charter or by-laws of any of the Company's subsidiaries or
any agreement, indenture or other instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective
properties is bound, and which is material to the Company and
its subsidiaries, taken as a whole, or (b) to such counsel's
knowledge, will not violate or conflict in any material respect
with any laws, administrative regulations or rulings or court
decrees applicable to the Company or any of its subsidiaries or
their respective properties (other than Blue Sky or state
securities laws as to which such counsel need express no
opinion);
<PAGE>
-22-
(iv) to the knowledge of such counsel, each document
filed pursuant to the Exchange Act and incorporated by
reference in the Registration Statement and the Prospectus
(except for financial statements, related schedules and
statistical information of a financial nature contained or
incorporated therein as to which such counsel need not express
any opinion) complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder.
(d) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, counsel to the
Agents shall have furnished to the relevant Agent or Agents such
opinion or opinions, dated the Commencement Date or Time of Delivery,
as the case may be, with respect to the validity of the Indenture,
the Securities, the Registration Statement, the Prospectus as amended
or supplemented and other related matters as such Agent or Agents may
reasonably request, and in each case such counsel shall have received
such papers and information as they may reasonably request to enable
them to pass upon such matters.
(e) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the Company's
independent certified public accountants who have certified the
financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and
Prospectus, as then amended or supplemented, shall have furnished to
the relevant Agent or Agents a letter, dated the Commencement Date or
Time of Delivery, as the case may be, in form and substance
reasonably satisfactory to such Agent or Agents, containing
statements and information of the type ordinarily included in accoun-
tants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information relating to
the Company contained in or incorporated by reference in the
Registration Statement and the Prospectus, as then amended or
supplemented.
<PAGE>
-23-
(f) On the Commencement Date, and in the case of a purchase of
Securities by an Agent as principal pursuant to a Terms Agreement or
otherwise, if called for by the applicable Terms Agreement or other
agreement, at the corresponding Time of Delivery, the relevant Agent
or Agents shall have received a certificate or certificates signed by
an executive officer of the Company, dated the Commencement Date or
Time of Delivery, as the case may be, to the effect set forth in
Section 6(a)(i) and (ii) above and to the further effect that (1) the
representations and warranties of the Company contained herein are
true and correct in all material respects on and as of the Com-
mencement Date or Time of Delivery, as the case may be, as if made on
and as of such date, (2) the Company has complied in all material
respects with all agreements and all conditions on its part to be
performed or satisfied hereunder or under the applicable Terms
Agreement or other agreement at or prior to the Commencement Date or
Time of Delivery, as the case may be, and (3) there has not occurred
any material adverse change in or affecting the business, prospects,
financial position, stockholders' equity or results of operations of
the Company and its subsidiaries taken as a whole from that set forth
in or contemplated by the Registration Statement or the Prospectus.
(g) On the Commencement Date and at each Time of Delivery, the
Company shall have furnished to the relevant Agent or Agents such
further certificates, information and documents as are usual and
customary in transactions of the nature contemplated herein as such
Agent or Agents may reasonably request.
7. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Agent and each person, if any,
who controls such Agent within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and
all losses, claims, damages and liabilities (including without limitation
the legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof or the Prospectus (as
amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus or caused by any
omission or alleged omission to state therein a material fact
<PAGE>
-24-
required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that the foregoing indemnity with
respect to any Prospectus or preliminary prospectus shall not inure to the
benefit of any Agent if a copy of the Prospectus (excluding documents
incorporated by reference therein) as amended or supplemented had been
provided to the Agent on a timely basis but not been sent or given by or on
behalf of such Agent to the person asserting such losses, claims, damages
or liabilities at or prior to the written confirmation of the sale of
Securities to such person and the untrue statement or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact that is found to be or is alleged to be the basis of
liability in such Prospectus or such preliminary prospectus was corrected
in the Prospectus as amended or supplemented; and provided, further,
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 reliance upon and in conformity with written
information furnished to the Company by any Agent expressly for use in the
Registration Statement, Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person who controls the Company within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act, to the same extent as the foregoing indemnity from the Company to each
Agent, but only with reference to information relating to such Agent
furnished to the Company in writing by such Agent expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnity may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person, shall retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may designate in
such proceeding and shall
<PAGE>
-25-
pay the fees and expenses of such counsel related to such proceeding. In
any such proceeding, any Indemnified Person shall have the right to retain
its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person or (iii) the named
parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all
Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment
for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the prior
written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person
is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on
claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) or
(b) of this Section 7 is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities
referred to herein in connection with any offering of Securities, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and each
Agent on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits
<PAGE>
-26-
referred to in clause (i) above but also the relative fault of the Company
on the one hand and each Agent on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and each Agent
on the other in connection with the offering of such Securities shall be
deemed to be in the same respective proportion as the net proceeds from the
offering of such Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by each Agent in
respect thereof bear to the aggregate offering price of such Securities.
The relative fault of the Company on the one hand and of each Agent on the
other 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 by such Agent 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 each Agent agrees that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined
by pro rata allocation (even if all Agents were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to above in
this Section 7 shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, in no event shall
an Agent be required to contribute any amount in excess of the amount by
which the total price at which the Securities referred to in Section 7(d)
that were sold by or through such Agent exceeds the amount of any damages
that such Agent 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligation of
each Agent to contribute pursuant to this subsection (d) is several (in the
proportion that the principal amount of the Securities the sale of which by
or through such Agent gave rise to such losses, claims, damages or
<PAGE>
-27-
liabilities bears to the aggregate principal amount of the Securities the
sale of which by or through any Agent gave rise to such losses, claims,
damages or liabilities) and is not joint.
(e) The indemnity and contribution agreements contained in
this Section 7 are in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
8. Termination. (a) This Agreement may be terminated at
any time (i) by the Company with respect to any or all of the Agents or
(ii) by any Agent with respect to itself only, in each case upon the giving
of written notice of such termination to each other party hereto. Any
Terms Agreement shall be subject to termination in the absolute discretion
of the Agent or Agents that are parties thereto if permitted by the terms
set forth or incorporated by reference therein. The termination of this
Agreement shall not require termination of any agreement by an Agent to
purchase Securities as principal (whether pursuant to a Terms Agreement or
otherwise) and the termination of such an agreement shall not require
termination of this Agreement. In the event this Agreement is terminated
with respect to any Agent, (x) this Agreement shall remain in full force
and effect with respect to any Agent as to which such termination has not
occurred, (y) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously
accrued or which relate to Securities which are already issued, agreed to
be issued or the subject of a pending offer at the time of such termination
and (z) in any event, the provisions of the fourth paragraph of Section
2(a), Section 2(c), the last sentence of Section 4(d) and Sections 4(f), 5,
7, 9, 10, 12 and 15 shall survive; provided that if at the time of
termination an offer to purchase Securities has been accepted by the
Company but the time of delivery to the purchaser or its agent of such
Securities has not yet occurred, the provisions of Sections 2(b), 2(d),
4(a) through 4(e), 4(h) through 4(k) and 6 shall also survive. If any
Terms Agreement is terminated, the provisions of the last sentence of
Section 4(d) and Sections 2(b), 2(d), 4(a), 4(b), 4(e), 4(g) through 4(k),
5, 7, 9, 10, 12 and 15 (which shall have been incorporated by reference in
such Terms Agreement) shall survive.
(b) If any Terms Agreement shall be terminated by an Agent
because of any failure or refusal on the part of the Company to comply with
the terms or to fulfill any of the
<PAGE>
-28-
conditions of this Agreement or any Terms Agreement or if for any reason
the Company shall be unable to perform its obligations under this Agreement
or any Terms Agreement, the Company agrees to reimburse the Agent party to
such Terms Agreement for all out-of-pocket expenses (including the fees and
expenses of their counsel) reasonably incurred by such Agent in connection
with such Terms Agreement.
9. Position of the Agents. Each Agent, in soliciting offers
to purchase Securities from the Company and in performing the other
obligations of such Agent hereunder (other than in respect of any purchase
by an Agent as principal, pursuant to a Terms Agreement or otherwise), is
acting solely as agent for the Company and not as principal and does not
assume any obligation towards or relationship of agency or trust with any
purchaser of Securities. Each Agent will make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to
purchase Securities from the Company was solicited by such Agent and has
been accepted by the Company, but such Agent shall not have any liability
to the Company in the event such purchase is not consummated for any rea-
son. If the Company shall default on its obligation to deliver Securities
to a purchaser whose offer it has accepted, the Company shall (i) hold the
relevant Agent harmless against any loss, claim, damage or liability
arising from or as a result of such default by the Company and (ii)
notwithstanding such default, pay to the Agent that solicited such offer
any commission to which it would be entitled in connection with such sale.
10. Representations and Indemnities to Survive. The
respective indemnities and contribution agreements, representations,
warranties and other statements of the Company, its officers and the Agents
set forth in or made pursuant to this Agreement or any agreement by an
Agent to purchase Securities as principal shall remain in full force and
effect regardless of any termination of this Agreement or any such
agreement, any investigation made by or on behalf of any Agent or any
controlling person of any Agent, or the Company, or any officer or director
or any controlling person of the Company, and shall survive each delivery
of and payment for any of the Securities.
11. Notices. Except as otherwise specifically provided
herein or in the Administrative Procedures, all statements, requests,
notices and advices hereunder shall be in writing, and effective only on
receipt, and will be delivered by hand, by mail (postage prepaid), by
telegram (charges
<PAGE>
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prepaid) or by telex. Communications to the Agents will be sent, in the
case of ____________ Attention: _____________, in the case of
____________, to __________________ and, if sent to the Company, to it at
Engelhard Corporation, 101 Wood Avenue, Iselin, New Jersey 08830;
Attention: Treasurer, with copy to General Counsel.
12. Successors. This Agreement and any Terms Agreement shall
be binding upon, and inure solely to the benefit of, each Agent and the
Company, and their respective successors and the officers, directors and
controlling persons referred to in Section 7 and (to the extent expressly
provided in Section 6) the purchasers of Securities, and no other person
shall acquire or have any right or obligation under or by virtue of this
Agreement or any Terms Agreement.
13. Amendments. This Agreement may be amended or
supplemented if, but only if, such amendment or supplement is in writing
and is signed by the Company and each Agent; provided that the Company may
from time to time, on 7 days prior written notice to the Agents but without
the consent of any Agent, amend this Agreement to add as a party hereto one
or more additional firms registered under the Exchange Act, whereupon each
such firm shall become an Agent hereunder on the same terms and conditions
as the other Agents that are parties hereto. The Agents shall sign any
amendment or supplement giving effect to the addition of any such firm as
an Agent under this Agreement.
14. Business Day. Time shall be of the essence in this
Agreement and any Terms Agreement. As used herein, the term "business day"
shall mean any day which is not a Saturday or Sunday or legal holiday or a
day on which banks in New York City are required or authorized by law or
executive order to close.
15. Applicable Law. This Agreement and any Terms Agreement
shall be governed by, and construed in accordance with, the laws of the
State of New York, without giving effect to the conflict of laws provisions
thereof.
16. Counterparts. This Agreement and any Terms Agreement may
be signed in counterparts, each of which shall be an original, and all of
which together shall constitute one and the same instrument.
<PAGE>
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17. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be
deemed a part of this Agreement.
<PAGE>
-31-
If the foregoing is in accordance with your understanding,
please sign and return to us _____ counterparts hereof, whereupon this
letter and the acceptance by each of you thereof shall constitute a binding
agreement between the Company and each of you in accordance with its terms.
Very truly yours,
ENGELHARD CORPORATION
By:
Accepted in New York, New York,
as of the date first above written:
[Name of Agents]
By:_________________________
Name:
Title:
<PAGE>
Exhibit A
ENGELHARD CORPORATION
MEDIUM TERM NOTES, SERIES __
TERMS AGREEMENT
______________, 199_
Engelhard Corporation
101 Wood Avenue
Iselin, New Jersey 08830
Attention: Treasurer
Re: Distribution Agreement dated as of
, 199_
(the "Distribution Agreement")____
The undersigned agrees to purchase your Medium-Term Notes, Series __
having the following terms:
Specified Currency:
Principal Amount:
Original Issue Date:
Settlement Date, Time
and Place:
Maturity Date:
Purchase Price: ______% of Principal Amount, plus
accrued interest, if any, from Settlement Date
Price to Public: ______% of Principal Amount, plus
accrued interest, if any, from Settlement Date
Redemption Date (Dates): ______________, commencing
Initial Redemption Price:
Annual Redemption Price decrease:
Repayment Date (Dates):
<PAGE>
-2-
Repayment Price:
Initial accrual period OID:
Original Yield to Maturity
[(For Fixed Rate Notes)]
Interest Rate: ______________________
Applicability of modified payment
upon acceleration:
If yes, state issue price:
Amortization schedule:
1[(For Floating Rate Notes)]
Initial Interest Rate: __________________
Interest Rate Basis (Commercial Paper, LIBOR,
Treasury, _________): _________________
Index Maturity (30, 60, 90 days, 6 months, 1 year,
other): __________________________
Interest Reset Period (monthly, quarterly,
semiannually, annually): ___________________
Interest Payment Period (monthly, quarterly,
semiannually, annually): ___________________
Spread: ______________ points (+/-)
Spread Multiplier: ___________%
Maximum Interest Rate: _______%
Minimum Interest Rate: _______%
Initial Interest Reset Date:
_________________________
1 See Prospectus Supplement dated __________ for explanation of terms.
<PAGE>
-3-
Interest Reset Dates:
Interest Determination Dates:
Interest Payment Dates:
Calculation Agent: ]
Other terms of Securities:
Provisions relating to underwriter
default, if any:
The provisions of Sections 1, 2(b) and 2(d) and 4 through 7,
10, 11, 12 and 15 of the Distribution Agreement and the related definitions
are incorporated by reference herein and shall be deemed to have the same
force and effect as if set forth in full herein.
This Agreement is subject to termination in our absolute
discretion if permitted by the terms incorporated by reference herein. If
this Agreement is so terminated, the provisions set forth in the last
sentence of Section 8 of the Distribution Agreement shall survive for the
purposes of this Agreement.
<PAGE>
-4-
[The certificate referred to in Section 4(k) of the
Distribution Agreement, the opinions referred to in Section 4(i) of the
Distribution Agreement and the accountants' letter referred to in Section
4(j) of the Distribution Agreement will be required.]
[Agent]
By:
(Title)
Accepted:
ENGELHARD CORPORATION
By:____________________
(Title)
Exhibit 4.1
_____________________________________________________________
_____________________________________________________________
ENGELHARD CORPORATION
SENIOR DEBT SECURITIES
INDENTURE
Dated as of , 1995
THE CHASE MANHATTAN BANK, N.A., Trustee
_____________________________________________________________
_____________________________________________________________
<PAGE>
CROSS-REFERENCE TABLE
TIA Indenture
Section Section_
310(a)(1)........................................... 7.08; 7.10
(a)(2).......................................... 7.08; 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... 7.08
(b)............................................. 7.08; 7.10;
11.02
(c)............................................. N.A.
311(a).............................................. 7.11
(b)............................................. 7.11
(c)............................................. N.A.
312(a).............................................. 2.06
(b)............................................. 11.03
(c)............................................. 11.03
313(a).............................................. 7.06
(b)(1).......................................... N.A.
(b)(2).......................................... 7.05
(c)............................................. 7.06; 11.02
(d)............................................. 7.06
314(a).............................................. 4.05; 4.06;
11.02
(b)............................................. N.A.
(c)(1).......................................... 11.04
(c)(2).......................................... 11.04
(c)(3).......................................... N.A.
(d)............................................. N.A.
(e)............................................. 11.05
(f)............................................. N.A.
315(a).............................................. 7.01(2)
(b)............................................. 7.05; 11.02
(c)............................................. 7.01(1)
(d)............................................. 7.01(3)
(e)............................................. 6.11
316(a)(last sentence)............................... 2.11
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... N.A.
(b)............................................. 6.07
(c)............................................. 10.04
317(a)(1)........................................... 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.05
318(a).............................................. 11.01
(b)............................................. N.A.
(c)............................................. 11.01
______________________
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Definitions ...................................... 1
SECTION 1.02 Other Definitions ................................ 5
SECTION 1.03 Rules of Construction ............................ 5
ARTICLE TWO
THE SECURITIES
SECTION 2.01 Issuable in Series ............................... 6
SECTION 2.02 Execution and Authentication...................... 8
SECTION 2.03 Bond Agents ...................................... 9
SECTION 2.04 Bearer Securities ................................ 9
SECTION 2.05 Paying Agent to Hold Money in Trust .............. 10
SECTION 2.06 Securityholder Lists ............................. 10
SECTION 2.07 Transfer and Exchange ............................ 11
SECTION 2.08 Replacement Securities ........................... 11
SECTION 2.09 Outstanding Securities ........................... 12
SECTION 2.10 Discounted Securities ............................ 12
SECTION 2.11 Treasury Securities .............................. 13
SECTION 2.12 Global Securities ................................ 13
SECTION 2.13 Temporary Securities ............................. 13
SECTION 2.14 Cancellation ..................................... 14
SECTION 2.15 Defaulted Interest ............................... 14
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee ............................... 14
SECTION 3.02 Selection of Securities to Be
Redeemed ......................................... 15
SECTION 3.03 Notice of Redemption ............................. 15
SECTION 3.04 Effect of Notice of Redemption ................... 16
SECTION 3.05 Payment of Redemption Price ...................... 16
SECTION 3.06 Securities Redeemed in Part ...................... 17
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities ............................ 17
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<PAGE>
Page
SECTION 4.02 Corporate Existence .............................. 17
SECTION 4.03 Limitations on Liens and Encumbrances ............ 18
SECTION 4.04 Limitations on Sale and Leaseback
Transactions...................................... 20
SECTION 4.05 SEC Reports ...................................... 20
SECTION 4.06 Annual Review Certificate ........................ 21
SECTION 4.07 Notice to Trustee of Certain Defaults ............ 21
SECTION 4.08 Further Assurances to Trustee .................... 21
ARTICLE FIVE
SUCCESSORS
SECTION 5.01 When Company May Merge, etc. ..................... 22
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default ................................ 22
SECTION 6.02 Acceleration ..................................... 24
SECTION 6.03 Other Remedies ................................... 25
SECTION 6.04 Waiver of Past Defaults .......................... 25
SECTION 6.05 Control by Majority .............................. 25
SECTION 6.06 Limitations on Suits ............................. 26
SECTION 6.07 Rights of Holders to Receive Payment ............. 26
SECTION 6.08 Collection Suit by Trustee ....................... 27
SECTION 6.09 Trustee May File Proofs of Claims ................ 27
SECTION 6.10 Priorities ....................................... 27
SECTION 6.11 Undertaking for Costs ............................ 28
SECTION 6.12 Restoration of Rights and Remedies ............... 28
SECTION 6.13 Rights and Remedies Cumulative ................... 28
SECTION 6.14 Delay or Omission Not Waiver ..................... 29
SECTION 6.15 Waiver of Stay or Extension Laws ................. 29
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee ................................ 29
SECTION 7.02 Rights of Trustee ................................ 31
SECTION 7.03 Individual Rights of Trustee ..................... 31
SECTION 7.04 Trustee's Disclaimer ............................. 31
SECTION 7.05 Notice of Defaults ............................... 32
SECTION 7.06 Reports by Trustee to Holders .................... 32
SECTION 7.07 Compensation and Indemnity ....................... 32
SECTION 7.08 Replacement of Trustee ........................... 33
SECTION 7.09 Successor Trustee by Merger, etc. ................ 34
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<PAGE>
Page
SECTION 7.10 Eligibility; Disqualification .................... 34
SECTION 7.11 Preferential Collection of Claims
Against Company .................................. 35
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01 Defeasance ....................................... 35
SECTION 8.02 Conditions to Defeasance ......................... 35
SECTION 8.03 Application of Trust Money ....................... 37
SECTION 8.04 Repayment to Company ............................. 37
ARTICLE NINE
CONVERSION
SECTION 9.01 Conversion Privilege ............................. 37
SECTION 9.02 Conversion Procedure ............................. 38
SECTION 9.03 Taxes on Conversion .............................. 39
SECTION 9.04 Company Determination Final ...................... 39
SECTION 9.05 Trustee's and Conversion Agent's
Disclaimer ....................................... 39
SECTION 9.06 Company to Provide Conversion
Securities ....................................... 39
SECTION 9.07 Cash Settlement Option ........................... 40
SECTION 9.08 Adjustment in Conversion Rate for
Change in Capital Stock .......................... 41
SECTION 9.09 Adjustment in Conversion Rate for Com-
mon Stock Issued Below Market Price .............. 41
SECTION 9.10 Adjustment for Other Distributions ............... 44
SECTION 9.11 Voluntary Adjustment ............................. 45
SECTION 9.12 When Adjustment May Be Deferred .................. 45
SECTION 9.13 When No Adjustment Required ...................... 45
SECTION 9.14 Notice of Adjustment ............................. 46
SECTION 9.15 Notice of Certain Transactions ................... 46
SECTION 9.16 Reorganization of the Company .................... 46
ARTICLE TEN
AMENDMENTS
SECTION 10.01 Without Consent of Holders ....................... 47
SECTION 10.02 With Consent of Holders .......................... 47
SECTION 10.03 Compliance with Trust Indenture Act .............. 48
SECTION 10.04 Effect of Consents ............................... 49
SECTION 10.05 Notation on or Exchange of Securities ............ 49
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<PAGE>
Page
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act .............................. 49
SECTION 11.02 Notices .......................................... 50
SECTION 11.03 Communications by Holders with Other
Holders .......................................... 51
SECTION 11.04 Certificate and Opinion as to
Conditions Precedent ............................. 51
SECTION 11.05 Statements Required in
Certificate or Opinion ........................... 51
SECTION 11.06 Rules by Company and Agents ...................... 52
SECTION 11.07 Legal Holidays ................................... 52
SECTION 11.08 No Recourse Against Others ....................... 52
SECTION 11.09 Duplicate Originals .............................. 52
SECTION 11.10 Governing Law .................................... 52
SIGNATURES ....................................... 53
Exhibit A: A Form of Registered
Security .......................... A-1
Exhibit B: A Form of Bearer Security
Notes to Exhibits A and B ......... B-1
Exhibit C: A Form of Assignment ................ C-1
Exhibit D: A Form of Conversion
Notice ............................ D-1
-iv-
<PAGE>
INDENTURE dated as of , 1995 between
ENGELHARD CORPORATION, a Delaware corporation ("Company"), and
THE CHASE MANHATTAN BANK, N.A., a national banking association
("Trustee").
Each party agrees as follows for the benefit of the
Holders of the Company's debt securities issued under this
Indenture:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions.
"Affiliate" means any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company.
"Agent" means any Registrar, Transfer Agent or Paying
Agent.
"Authorized Newspaper" means a newspaper that is:
(1) printed in the English language or in an offi-
cial language of the country of publication;
(2) customarily published on each business day in
the place of publication; and
(3) of general circulation in the relevant place or
in the financial community of such place.
Whenever successive publications in an Authorized Newspaper are
required, they may be made on the same or different business
days and in the same or different Authorized Newspapers.
"Bearer Security" means a Security payable to bearer.
"Board" or "Board of Directors" means the Board of
Directors of the Company or any authorized committee of the
Board.
"Bond Resolution" means a resolution adopted by the
Board or by an Officer or committee of Officers pursuant to
Board delegation authorizing a series of Securities.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of
<PAGE>
capital stock of any person and all warrants or options to
acquire such capital stock.
"Common Stock" means the Common Stock, par value
$1.00 per share, of the Company or any security into which the
Common Stock may be converted.
"Company" means the party named as such above until a
successor replaces it and thereafter means the successor.
"Consolidated Tangible Net Worth" means the excess of
(i) the net book value of the assets of the Company and its
Subsidiaries (other than patents, patent rights, trademarks,
trade names, franchises, copyrights, licenses, permits, good-
will and other intangible assets classified as such in accor-
dance with GAAP) after all appropriate deductions in accordance
with GAAP (including, without limitation, reserves for doubtful
receivables, obsolescence, depreciation and amortization) plus
the amount, if any, by which the market value of precious met-
als inventories exceeds the carrying value of those metals on
the consolidated books of account of the Company and its Sub-
sidiaries reduced by taxes estimated to be payable upon real-
ization as calculated by the Company and reviewed by the Compa-
ny's auditors over (ii) the consolidated liabilities (including
tax and other proper accruals) of the Company and its Subsid-
iaries, in each case computed and consolidated in accordance
with GAAP.
"Conversion Rate" means such number of shares of Com-
mon Stock for which $1,000 aggregate principal amount of Secu-
rities of any series is convertible, initially as stated in the
Bond Resolution authorizing the series and as adjusted pursuant
to the terms of this Indenture and the Bond Resolution.
"coupon" means an interest coupon for a Bearer
Security.
"Default" with respect to a series of the Securities
or to all series of the Securities, as the case may be, means
any event which is, or after notice or passage of time would
be, an Event of Default with respect to such series or to all
series of the Securities, as the case may be.
"Discounted Security" means a Security where the
amount of principal due upon acceleration is less than the
stated principal amount.
"GAAP" shall mean generally accepted accounting prin-
ciples set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of
-2-
<PAGE>
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a sig-
nificant segment of the accounting profession, which are appli-
cable to the circumstances as in effect on the date of this
Indenture.
"Holder" or "Securityholder" means the person in
whose name a Registered Security is registered and the bearer
of a Bearer Security or coupon.
"Indenture" means this Indenture and any Bond Resolu-
tion as amended from time to time.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind whatsoever (including
any conditional sale or other title retention agreement, any
lease in the nature thereof, and the filing of or agreement to
give any financing statement under the Uniform Commercial Code
of any jurisdiction) but in no event shall "Lien" include any
defeasance pursuant to Article 8 hereof.
"NASDAQ" means the National Association of Securities
Dealers Automated Quotation System.
"Officer" means the Chairman of the Board, the Presi-
dent, any Vice President (including any Executive Vice Presi-
dent or Senior Vice President), the Treasurer, any Assistant
Treasurer, the Secretary, or the Controller of the Company.
"Officers' Certificate" means a certificate signed by
two Officers or by an Officer and an Assistant Secretary or
Assistant Controller of the Company.
"Opinion of Counsel" means a written opinion from
legal counsel who is acceptable to the Trustee. The counsel
may be an employee of or counsel to the Company or the Trustee.
"principal" of a debt security means the principal of
the security plus the premium, if and when applicable, on the
security.
"Principal Property" means any manufacturing plant or
warehouse owned at the date hereof or hereafter acquired by the
Company or any Significant Subsidiary which is located within
the United States and which is carried on the books of the Com-
pany or such Significant Subsidiary in accordance with GAAP
(before deduction of any applicable depreciation reserves) at a
value in excess of 5.0% of the Company's Consolidated Tangible
Net Worth, other than (A) any such property which the Company
-3-
<PAGE>
or a Significant Subsidiary shall sell or convey to an indus-
trial development corporation, a governmental subdivision or
instrumentality or similar entity on terms contemplating the
lease or sale of such property back to the Company or a Sig-
nificant Subsidiary and contemplating the direct or indirect
application of rental or installment payments under such lease
or sales contract to service the bonds or other evidences of
indebtedness issued by such entity to finance the acquisition
of or construction upon such property or (B) any property which
in the opinion of the Board of Directors is not of material
importance to the total business conducted by the Company and
its Significant Subsidiaries as an entirety or (C) any portion
of a particular property which in the opinion of the Board of
Directors is not of material importance to the use or operation
of such property.
"Registered Security" means a Security registered as
to principal and interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities issued under
this Indenture.
"series" means a series of Securities or the Securi-
ties of the series.
"Significant Subsidiary" shall have the meaning
assigned to such term in Regulation S-X promulgated under the
Securities Act of 1933, as amended.
"Stock Trading Day" means each day on which the secu-
rities exchange or quotation system which is used to determine
the Market Price is open for trading or quotation.
"Subsidiary" means any corporation, association or
other business entity, a majority (by number of votes) of the
Voting Stock or control of which is at the time owned or con-
trolled by the Company or another Subsidiary of the Company.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.
Code { 77aaa-77bbbb) as in effect on the date of this
Indenture.
"Treasury Regulations" means regulations of the U.S.
Treasury Department under the Internal Revenue Code of 1986, as
amended.
"Trustee" means the party named as such above until a
successor replaces it and thereafter means the successor.
-4-
<PAGE>
"Trust Officer" means the Chairman of the Board, the
President or any other officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate
trust matters.
"United States" means the United States of America,
its territories and possessions and other areas subject to its
jurisdiction.
"Voting Stock" means stock of any class or classes
(however designated) having ordinary voting power for the elec-
tion of a majority of the members of the board of directors (or
governing body) of such corporation, association or other busi-
ness entity, other than stock having such power only by reason
of the happening of a contingency.
"Yield to Maturity" means the yield to maturity on
any Securities, calculated at the time of issuance of such
Securities, or, if applicable, at the most recent
redetermination of interest on such Securities, and calculated
in accordance with accepted financial practice.
SECTION 1.02. Other Definitions.
Term Defined in Section
"Bankruptcy Law" 6.01
"Bearer Securities List" 2.06
"Conversion Agent" 2.03
"Conversion Date" 9.02
"Conversion Notice" 9.02
"Conversion Right" 9.01
"Custodian" 6.01
"Event of Default" 6.01
"Legal Holiday" 11.07
"Market Price" 9.07
"Paying Agent" 2.03
"Registrar" 2.03
"Transfer Agent" 2.03
"U.S. Government Obligations" 8.02
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
-5-
<PAGE>
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP
in the United States;
(3) GAAP principles are those applicable and in
effect on the date of this Indenture;
(4) all terms used in this Indenture that are
defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule under the
TIA have the meanings assigned to them by such
definitions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in
the plural include the singular.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities that may
be issued under this Indenture is unlimited. The Securities
may be issued from time to time in one or more series. Each
series shall be created by a Bond Resolution or a supplemental
indenture that establishes the terms of the series, which may
include the following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate, if any, or method of calcula-
ting the interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Regis-
tered Securities;
(6) the dates when principal and interest are
payable;
(7) the manner of paying principal and interest;
-6-
<PAGE>
(8) the places where principal and interest are
payable;
(9) the Registrar, Transfer Agent and Paying Agent;
(10) the terms of any mandatory or optional redemp-
tion by the Company;
(11) the terms of any redemption at the option of
Holders;
(12) the denominations in which Securities are
issuable;
(13) whether Securities will be issuable as Regis-
tered Securities or Bearer Securities;
(14) whether and upon what terms Registered Securi-
ties and Bearer Securities may be exchanged;
(15) whether any Securities will be represented by a
Security in global form;
(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) the currencies (including any composite cur-
rency) in which principal or interest may be
paid;
(19) if payments of principal or interest may be made
in a currency other than that in which Securi-
ties are denominated, the manner for determining
such payments;
(20) if amounts of principal or interest may be
determined by reference to an index, formula or
other method, the manner for determining such
amounts;
(21) provisions for electronic issuance of Securities
or for Securities in uncertificated form;
(22) the portion of principal payable upon accelera-
tion of a Discounted Security;
(23) any Events of Default or covenants in addition
to or in lieu of those set forth in this
Indenture;
-7-
<PAGE>
(24) whether and upon what terms Securities may be
defeased;
(25) the forms of the Securities or any coupon, which
may be in the form of Exhibit A or B or
otherwise;
(26) any terms that may be required by or advisable
under U.S. or other applicable laws;
(27) whether and upon what terms the Securities will
be convertible into or exchangeable for Common
Stock of the Company, which may include the
terms provided in Article 9; and
(28) any other terms not inconsistent with this
Indenture.
All Securities of one series need not be issued at
the same time and, unless otherwise provided, a series may be
reopened for issuances of additional Securities of such series.
The creation and issuance of a series and the authen-
tication and delivery thereof are not subject to any conditions
precedent.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities by manual or
facsimile signature. The Company's seal may be reproduced on
the Securities. An Officer shall sign any coupons by facsimile
signature.
If an Officer whose signature is on a Security or its
coupons no longer holds that office at the time the Security is
authenticated or delivered, the Security and coupons shall
nevertheless be valid.
A Security and its coupons shall not be valid until
the Security is authenticated by the manual signature of the
Registrar. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
Each Registered Security shall be dated the date of
its authentication. Each Bearer Security shall be dated the
date of its original issuance or as provided in the Bond
Resolution.
-8-
<PAGE>
Securities may have notations, legends or endorse-
ments required by law, stock exchange rule, agreement or usage.
SECTION 2.03. Bond Agents.
The Company shall maintain an office or agency where
Securities may be authenticated ("Registrar"), where Securities
may be presented for registration of transfer or for exchange
("Transfer Agent"), where Securities may be presented for pay-
ment ("Paying Agent") and where Securities may be presented for
conversion ("Conversion Agent"). Whenever the Company must
issue or deliver Securities pursuant to this Indenture, the
Registrar shall authenticate the Securities at the Company's
written request. The Transfer Agent shall keep a register of
the Securities and of their transfer and exchange.
The Company may appoint more than one Registrar,
Transfer Agent, Paying Agent or Conversion Agent for a series.
The Company shall notify the Trustee of the name and address of
any Agent not a party to this Indenture. If the Company fails
to maintain a Registrar, Transfer Agent, Paying Agent or Con-
version Agent for a series, the Trustee shall act as such.
SECTION 2.04. Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or
exchanges of and payments on Bearer Securities. Therefore,
except as provided below:
(1) Bearer Securities will be offered, sold and
delivered only outside the United States and
will be delivered only upon presentation of a
certificate in a form prescribed by the Company
to comply with U.S. laws and regulations.
(2) Bearer Securities will not be issued in exchange
for Registered Securities.
(3) All payments of principal and interest (includ-
ing original issue discount) on Bearer Securi-
ties will be made outside the United States by a
Paying Agent located outside the United States
unless the Company determines that:
(A) such payments may not be made by such Pay-
ing Agent because the payments are illegal
or prevented by exchange controls as
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described in Treasury Regulation
{ 1.163-5(c)(2)(v); and
(B) making the payments in the United States
would not have an adverse tax effect on the
Company.
If there is a change in the relevant provisions of
U.S. laws or Treasury Regulations or the judicial or adminis-
trative interpretation thereof, a restriction set forth in
paragraph (1), (2) or (3) above will not apply to a series if
the Company determines that the relevant provisions no longer
apply to the series or that failure to comply with the relevant
provisions would not have an adverse tax effect on the Company
or on Securityholders or cause the series to be treated as
"registration-required" obligations under U.S. law.
The Company shall notify the Trustee of any determi-
nations by the Company under this Section.
SECTION 2.05. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent for a
series other than the Trustee to agree in writing that the Pay-
ing Agent will hold in trust for the benefit of the persons
entitled thereto all money held by the Paying Agent for the
payment of principal of or interest on the series, and will
notify the Trustee of any default by the Company in making any
such payment.
While any such default continues, the Trustee may
require a Paying Agent to pay all money so held by it to the
Trustee. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee. Upon payment over to
the Trustee, the Paying Agent shall have no further liability
for the money.
If the Company or an Affiliate acts as Paying Agent
for a series, it shall segregate and hold as a separate trust
fund all money held by it as Paying Agent for the series.
SECTION 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Securityholders. If the Trustee is
not the Transfer Agent, the Company shall furnish to the Trus-
tee semiannually and at such other times as the Trustee may
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request a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders of
Registered Securities and Holders of Bearer Securities whose
names are on the list referred to below.
The Transfer Agent shall keep a list of the names and
addresses of Holders of Bearer Securities who file a request to
be included on such list (the "Bearer Securities List"). A
request will remain in effect for two years unless renewed or
amended.
Whenever the Company or the Trustee is required to
mail a notice to all Holders of Registered Securities of a
series, it also shall mail the notice to Holders of Bearer
Securities of the series whose names are on the Bearer Securi-
ties List.
Whenever the Company is required to publish a notice
to all Holders of Bearer Securities of a series, it also shall
mail the notice to such of them whose names are on the Bearer
Securities List.
SECTION 2.07. Transfer and Exchange.
Where Registered Securities of a series are presented
to the Transfer Agent with a request to register a transfer or
to exchange them for an equal principal amount of Registered
Securities of other denominations of the series, the Transfer
Agent shall register the transfer or make the exchange if its
requirements for such transactions are met.
The Transfer Agent may require a Holder to pay a sum
sufficient to cover any taxes imposed on a transfer or
exchange.
If a series provides for Registered and Bearer Secu-
rities and for their exchange, Bearer Securities may be
exchanged for Registered Securities and Registered Securities
may be exchanged for Bearer Securities as provided in the Secu-
rities or the Bond Resolution if the requirements of the Trans-
fer Agent for such transactions are met and if Section 2.04
permits the exchange.
SECTION 2.08. Replacement Securities.
If the Holder of a Security or coupon claims that it
has been lost, destroyed or wrongfully taken, then, in the
absence of notice to the Company or the Trustee that the
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Security or coupon has been acquired by a bona fide purchaser,
the Company shall issue a replacement Security or coupon if the
Company and the Trustee receive:
(1) evidence satisfactory to them of the loss,
destruction or taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their
expenses and any taxes for replacing the Secu-
rity or coupon.
A replacement Security shall have coupons attached correspond-
ing to those, if any, on the original Security.
Every replacement Security or coupon is an additional
obligation of the Company.
SECTION 2.09. Outstanding Securities.
The Securities outstanding at any time are all the
Securities authenticated by the Registrar except for those can-
celled by it, those delivered to it for cancellation, and those
described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08,
it ceases to be outstanding unless the Trustee and the Company
receive proof satisfactory to them that the replaced Security
is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01,
they cease to be outstanding and interest on them ceases to
accrue.
A Security does not cease to be outstanding because
the Company or an Affiliate holds the Security.
SECTION 2.10. Discounted Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction,
waiver or consent, the principal amount of a Discounted Secu-
rity shall be the amount of principal that would be due as of
the date of such determination if payment of the Security were
accelerated on that date.
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SECTION 2.11. Treasury Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Company or an Affil-
iate shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying
on any such direction, waiver or consent, only Securities which
the Trustee knows are so owned shall be so disregarded.
SECTION 2.12. Global Securities.
If the Bond Resolution so provides, the Company may
issue some or all of the Securities of a series in temporary or
permanent global form. A global Security may be in registered
form, in bearer form with or without coupons or in
uncertificated form. A global Security shall represent that
amount of Securities of a series as specified in the global
Security or as endorsed thereon from time to time. At the Com-
pany's request, the Registrar shall endorse a global Security
to reflect the amount of any increase or decrease in the Secu-
rities represented thereby.
The Company may issue a global Security only to a
depository designated by the Company. A depository may trans-
fer a global Security only as a whole to its nominee or to a
successor depository.
The Bond Resolution may establish, among other
things, the manner of paying principal and interest on a global
Security and whether and upon what terms a beneficial owner of
an interest in a global Security may exchange such interest for
definitive Securities.
The Company, an Affiliate, the Trustee and any Agent
shall not be responsible for any acts or omissions of a deposi-
tory, for any depository records of beneficial ownership inter-
ests or for any transactions between the depository and benefi-
cial owners.
SECTION 2.13. Temporary Securities.
Until definitive Securities of a series are ready for
delivery, the Company may use temporary Securities. Temporary
Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers
appropriate for temporary Securities. Temporary Securities may
be in global form. Temporary Bearer Securities may have one or
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more coupons or no coupons. Without unreasonable delay, the
Company shall deliver definitive Securities in exchange for
temporary Securities.
SECTION 2.14. Cancellation.
The Company at any time may deliver Securities to the
Registrar for cancellation. The Transfer Agent and the Paying
Agent shall forward to the Registrar any Securities and coupons
surrendered to them for payment, exchange or registration of
transfer. The Registrar shall cancel all Securities or coupons
surrendered for payment, registration of transfer, exchange or
cancellation as follows: the Registrar will cancel all Regis-
tered Securities and matured coupons. The Registrar also will
cancel all Bearer Securities and unmatured coupons unless the
Company requests the Registrar to hold the same for redelivery.
Any Bearer Securities so held shall be considered delivered for
cancellation under Section 2.09. The Registrar shall destroy
cancelled Securities and coupons unless the Company otherwise
directs.
Unless the Bond Resolution otherwise provides, the
Company may not issue new Securities to replace Securities that
the Company has paid or that the Company has delivered to the
Registrar for cancellation.
SECTION 2.15. Defaulted Interest
If the Company defaults in a payment of interest on
Registered Securities, it need not pay the defaulted interest
to Holders on the regular record date. The Company may fix a
special record date for determining Holders entitled to receive
defaulted interest or the Company may pay defaulted interest in
any other lawful manner.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
Securities of a series that are redeemable before
maturity shall be redeemable in accordance with their terms
and, unless the Bond Resolution otherwise provides, in accor-
dance with this Article.
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In the case of a redemption by the Company, the Com-
pany shall notify the Trustee of the redemption date and the
principal amount of Securities to be redeemed. The Company
shall notify the Trustee at least 45 days before the redemption
date unless a shorter notice is satisfactory to the Trustee.
If the Company is required to redeem Securities, it
may reduce the principal amount of Securities required to be
redeemed to the extent it is permitted a credit by the terms of
the Securities and it notifies the Trustee of the amount of the
credit and the basis for it. If the reduction is based on a
credit for acquired or redeemed Securities that the Company has
not previously delivered to the Registrar for cancellation, the
Company shall deliver the Securities at the same time as the
notice.
SECTION 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select the Securities to be
redeemed by a method the Trustee considers fair and appropri-
ate. The Trustee shall make the selection from Securities of
the series outstanding and not previously called for redemp-
tion. The Trustee may select for redemption portions of the
principal of Securities having denominations larger than the
minimum denomination for the series. Securities and portions
thereof selected for redemption shall be in amounts equal to
the minimum denomination for the series or an integral multiple
thereof. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities
called for redemption.
SECTION 3.03. Notice of Redemption.
At least 20 days but not more than 60 days before a
redemption date, the Company shall mail a notice of redemption
by first-class mail to each Holder of Registered Securities
whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company
shall publish a notice of redemption in an Authorized Newspaper
as provided in the Securities.
A notice shall identify the Securities of the series
to be redeemed and shall state:
(1) the redemption date;
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(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together
with all coupons, if any, maturing after the
redemption date, must be surrendered to the Pay-
ing Agent to collect the redemption price;
(5) that interest on Securities called for redemp-
tion ceases to accrue on and after the redemp-
tion date; and
(6) whether the redemption by the Company is manda-
tory or optional.
A redemption notice given by publication need not
identify Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is given, Securities called
for redemption become due and payable on the redemption date at
the redemption price stated in the notice.
SECTION 3.05. Payment of Redemption Price.
On or before the redemption date, the Company shall
deposit with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Securities to
be redeemed on that date.
When the Holder of a Security surrenders it for
redemption in accordance with the redemption notice, the Com-
pany shall pay to the Holder on the redemption date the redemp-
tion price and accrued interest to such date, except that:
(1) the Company will pay any such interest (except
defaulted interest) to Holders on the record
date of Registered Securities if the redemption
date occurs on an interest payment date; and
(2) the Company will pay any such interest to Hold-
ers of coupons that mature on or before the
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<PAGE>
redemption date upon surrender of such coupons
to the Paying Agent.
Coupons maturing after the redemption date on a
called Security are void absent a payment default on that date.
Nevertheless, if a Holder surrenders for redemption a Bearer
Security missing any such coupons, the Company and the Trustee
may deduct the face amount of such coupons from the redemption
price. If thereafter the Holder surrenders to the Paying Agent
the missing coupons, the Company will return the amount so
deducted. The Company also may waive surrender of the missing
coupons if it receives an indemnity bond satisfactory to the
Company and the Trustee.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in
part, the Company shall deliver to the Holder a new Security of
the same series equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
(1) The Company shall duly and punctually pay the
principal of (and premium, if any) and interest on a series in
accordance with the terms of the Securities for the series, any
related coupons, and this Indenture on the dates and in the
manner provided in the Securities and in this Indenture.
(2) Unless the Bond Resolution otherwise provides,
the Company shall pay interest on overdue principal of a series
of the Securities at the rate of interest or Yield to Maturity
(in the case of a Discounted Security) borne by such series of
Securities or at such other rate as may be specified in such
Security; and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
SECTION 4.02. Corporate Existence.
Subject to Article 5, Company will do or cause to be
done all things necessary to preserve and keep in full force
and effect its corporate existence, material rights (charter
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and statutory) and franchises; provided, however, that the Com-
pany shall not be required to preserve any such material right
or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of
the business of the Company.
SECTION 4.03. Limitations on Liens and Encumbrances.
The Company covenants that it will not, and it will
not permit any Subsidiary, directly or indirectly, to incur or
create any Lien on any property, assets or stock now owned or
hereafter acquired by the Company or any Subsidiary without
equally and ratably securing all series of Securities then out-
standing with the indebtedness secured by such Lien, other
than:
(1) Liens for taxes or assessments and similar
charges either (A) not delinquent or (B) being contested
in good faith by appropriate proceedings and as to which
the Company or such Subsidiary, as the case may be, shall
have set aside on its books adequate reserves;
(2) Liens incurred or pledges and deposits made in
connection with workmen's compensation, unemployment
insurance, old-age pensions and social security benefits
or securing the performance of bids, tenders, leases, con-
tracts (other than for obligations incurred in connection
with the borrowing of money or the obtaining of advances
or credit), and statutory obligations of like nature,
incurred as an incident to and in the ordinary course of
business;
(3) materialmen's, mechanics', repairmen's, employ-
ees', operators' or other similar Liens or charges arising
in the ordinary course of business incidental to construc-
tion, maintenance or operation of any property of the Com-
pany or any Subsidiary which have not at the time been
filed pursuant to law and any such Liens and charges inci-
dental to construction, maintenance or operation of any
property of the Company or any Subsidiary, which, although
filed, relate to obligations not yet due or the payment of
which is being withheld as provided by law, or to obliga-
tions the validity of which is being contested in good
faith by appropriate proceedings;
(4) zoning restrictions, easements, licenses, reser-
vations, provisions, covenants, conditions, waivers,
restrictions on the use of property or minor irregulari-
ties of title (and with respect to leasehold interests,
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mortgages, obligations, Liens and other encumbrances
incurred, created, assumed or permitted to exist and aris-
ing by, through or under or asserted by a landlord or
owner of the leased property, with or without consent of
the lessee), which will not individually or in the aggre-
gate interfere materially with the use or operation by the
Company or any Subsidiary of the property affected thereby
for the purposes for which such property was acquired or
is held by the Company or any Subsidiary;
(5) Liens created by or resulting from any liti-
gation or proceeding which is being contested in good
faith by appropriate proceedings and as to which levy and
execution have been stayed and continue to be stayed;
(6) Liens consisting of repurchase agreements, swaps
or other obligations entered into in the ordinary course
of business relating to precious metals purchased, bor-
rowed or otherwise held by the Company or any Subsidiary;
(7) Liens incidental to the conduct of its business
or the ownership of its property and assets which were not
incurred in connection with the borrowing of money or the
obtaining of advances or credit and which do not in the
aggregate materially detract from the value of the prop-
erty or assets subject thereto or materially impair the
use thereof in the operation of its business;
(8) Liens on property or assets of a Subsidiary to
secure obligations of such Subsidiary to the Company or
another Subsidiary;
(9) Liens arising in connection with letter of
credit trade transactions, provided that the Company or
the Subsidiary, as the case may be, discharges within 60
days its obligation to pay the indebtedness to banks aris-
ing from payments made by such banks under such letters of
credit; and
(10) other Liens, provided that the aggregate of all
properties and assets of the Company and the Subsidiaries
which are subject to or affected by such Liens and which
would properly be classified as assets on a consolidated
balance sheet prepared in accordance with GAAP (including
all leases (other than leases of office space and leases
of research and development facilities, if any) that would
be required to be reflected as capital leases pursuant to
such principles) does not at any time have a value on the
books of the Company and the Subsidiaries in excess of 25%
of the Consolidated Tangible Net Worth of the Company and
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the Subsidiaries calculated for the quarter most recently
ended.
SECTION 4.04. Limitations on Sale and Leaseback Transactions.
The Company will not, and will not permit any Sig-
nificant Subsidiary to, directly or indirectly, sell or trans-
fer (other than to the Company or a Significant Subsidiary) any
Principal Property with the intention that the Company or any
Significant Subsidiary take back a lease thereof which (i) has
a term of more than three years or (ii) is renewable at the
option of the Company or such Significant Subsidiary for an
aggregate period or periods of more than three years from the
date of commencement thereof unless (a) the Company promptly
gives notice of such sale to the Trustee, and either (b) the
Principal Property owned by the Company or a Significant Sub-
sidiary immediately prior to such sale could have been sub-
jected to a Lien to secure indebtedness without any violation
of Section 4.03 and without securing the Securities as contem-
plated by Section 4.03 or (c) the net proceeds of such sale are
applied within 270 days either before or after the effective
date of any such transaction (i) to the retirement of indebted-
ness of the Company or any Subsidiary (other than Securities of
any series at the time outstanding) or (ii) to the redemption
of Securities of any series at the time outstanding, if permis-
sible under Article 3 and the terms of Securities of such
series therein referred to, at a redemption price equal to the
principal amount thereof plus the then applicable premium, if
any, together with accrued interest, if any, or (iii) to the
purchase of property, securities or other assets (other than
the Principal Property involved in such sale) having a value at
least equal to the net proceeds of such sale, or (d) the Com-
pany shall deliver to the Trustee for cancellation Securities
in an aggregate principal amount at least equal to the net pro-
ceeds of such sale (less any amounts applied in accordance with
clause (c)). The notice to the Trustee provided for in clause
(a) above shall state the amount of the net proceeds of such
sale and shall be accompanied by an Officer's Certificate to
the effect that the requirements of this Section have been com-
plied with. Any one or more of the applications permitted by
clause (c) may be combined with any other such application, or
with cancellation of Securities permitted by clause (d).
SECTION 4.05. SEC Reports.
The Company shall file with the Trustee within 30
days after it is required to file them with the SEC copies of
the annual reports and of the information, documents and other
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reports (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) which the Com-
pany is required to file with the SEC pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934. The Company also
shall comply with the other provisions of TIA { 314(a).
SECTION 4.06. Annual Review Certificate.
The Company shall file with the Trustee within 120
days after the end of each fiscal year of the Company an Offic-
ers' Certificate stating:
(1) that the signing officers have supervised a
review of the activities of the Company and its Subsidiar-
ies during the preceding fiscal year to determine whether
the Company has observed and performed its obligations
under this Indenture; and
(2) that to the best knowledge of each officer sign-
ing such certificate the Company has observed and per-
formed all of its covenants in this Indenture and is not
in default in the observance and performance of any of the
terms, provisions and conditions of this Indenture (or if
the Company is in such default, specifying those defaults
and the nature thereof of which he has knowledge).
Such certificate need not comply with Section 11.05.
SECTION 4.07. Notice to Trustee of Certain Defaults.
The Company shall give the Trustee within 30 days
written notice of (a) any failure of the kind described in Sec-
tion 6.01(3) which remains uncured for 30 days after the Com-
pany has knowledge thereof, or (b) an event of default
described in Section 6.01(4).
SECTION 4.08. Further Assurances to Trustee.
The Company will, upon request of the Trustee, exe-
cute and deliver such further instruments and do such further
acts as may reasonably be necessary or proper to carry out more
effectively the purposes of this Indenture.
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ARTICLE FIVE
SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge into,
or transfer all or substantially all of its assets to, any per-
son unless:
(1) the person is organized under the laws of the
United States or a State thereof;
(2) the person assumes by supplemental indenture all
the obligations of the Company under this Inden-
ture, the Securities and any coupons;
(3) immediately after the transaction no Default
exists; and
(4) if, as a result of the transaction, any proper-
ties or assets of the Company would become sub-
ject to a Lien not permitted by Section 4.03,
the Company or such person secures the Securi-
ties equally and ratably with or prior to all
obligations secured by the Lien.
The successor shall be substituted for the Company,
and thereafter all obligations of the Company under this Inden-
ture, the Securities and any coupons shall terminate.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" with respect to a series of the
Securities occurs if:
(1) the Company defaults in the payment of
interest on a Security of such series when the same
becomes due and payable and the default continues for
a period of 30 days;
(2) the Company defaults in the payment of the
principal of a Security of such series when the same
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becomes due and payable at maturity, upon redemption
or otherwise, or in the making of any sinking fund
payment, if any, required by the terms of such
series;
(3) the Company fails to comply with any of its
other covenants, conditions or agreements in the
Securities of such series or this Indenture and the
default continues for the period and after the notice
specified below;
(4) the Company, pursuant to or within the
meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an
order for relief against it in an invol-
untary case,
(C) consents to the appointment of
a Custodian of it or for all or substan-
tially all of its property, or
(D) makes a general assignment for
the benefit of its creditors;
(5) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the Com-
pany in an involuntary case,
(B) appoints a Custodian of the
Company for all or substantially all of
its property, or
(C) orders the liquidation of the
Company, and the order or decree remains
unstayed and in effect for 90 days;
(6) a default under any bond, debenture, note
or other evidence of indebtedness for money borrowed
by the Company (including a default with respect to
Securities of any series other than that series) or
under any mortgage, indenture or instrument under
which there may be issued or by which there may be
secured or evidenced any indebtedness for money bor-
rowed by the Company (including this Indenture),
whether such indebtedness now exists or shall
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hereafter be created, which default shall involve an
amount in excess of $25,000,000, and shall constitute
a failure to pay such indebtedness when due and pay-
able after the expiration of any applicable grace
period with respect thereto and shall have resulted
in such indebtedness becoming or being declared due
and payable prior to the date on which it would
otherwise have become due and payable, without such
indebtedness having been discharged, or such acceler-
ation having been rescinded or annulled within a
period of 30 days after there shall have been given,
by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the
Holders of at least 10% in principal amount of the
outstanding Securities of that series a written
notice specifying such default and requiring the Com-
pany to cause such indebtedness to be discharged or
cause such acceleration to be rescinded or annulled
and stating that such notice is a "Notice of Default"
hereunder; or
(7) any other Event of Default provided with
respect to Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code
or any similar Federal or State law for the relief of debtors.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
A default under clause (3) is not an Event of Default
with respect to a series of the Securities until the Trustee or
the Holders of at least 25% in principal amount of the out-
standing Securities of such series notify the Company of the
default and the Company does not cure the default within 60
days after receipt of the notice. The notice must specify the
default, demand that it be remedied and state that the notice
is a "Notice of Default."
SECTION 6.02. Acceleration.
If an Event of Default with respect to a series of
the Securities occurs and is continuing, the Trustee by notice
to the Company, or the Holders of at least 25% in principal
amount of the outstanding Securities of such series by notice
to the Company and the Trustee, may declare the principal and
accrued interest on all the Securities of such series to be due
and payable immediately. Upon such declaration, such principal
(or, if the Securities of a series are Discounted Securities,
such portion of the principal due and payable immediately. The
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Holders of a majority in principal amount of the outstanding
Securities of such series by notice to the Trustee may rescind
or annul such acceleration and its consequences if all existing
Events of Default with respect to such series have been cured
or waived pursuant to Section 6.04 and if the rescission would
not conflict with any judgment or decree.
SECTION 6.03. Other Remedies.
(1) If an Event of Default with respect to a
series of the Securities occurs and is continuing,
the Trustee may pursue any available remedy by pro-
ceeding at law or in equity to collect the payment of
principal or interest on the Securities of such
series or to enforce the performance of any provision
of the Securities of such series or this Indenture,
and may take any necessary action required of it as
Trustee to settle, compromise, adjust or otherwise
conclude any proceedings to which it is a party.
(2) The Trustee may maintain a proceeding even
if it does not possess any of the Securities or does
not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event
of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event
of Default. No remedy is exclusive of any other rem-
edy. All available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults.
Subject to Section 10.02, the Holders of a majority
in principal amount of the outstanding Securities of a series
by notice to the Trustee may waive an existing Default with
respect to such series and its consequences. When a Default is
waived with respect to a series of the Securities, it is cured
and stops continuing with respect to such series.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the
outstanding Securities of a series may direct the time, method
and place of conducting any proceeding with respect to such
series for any remedy available to the Trustee or exercising
any trust or power conferred on it. The Trustee, however, may
refuse to follow any direction that conflicts with law or this
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Indenture, that is unduly prejudicial to the rights of another
Holder of a Security of such series, that would involve the
Trustee in personal liability, or if the Trustee does not have
sufficient indemnification against any loss or expense.
SECTION 6.06. Limitations on Suits.
(1) A Holder of a Security of a series may not
pursue any remedy with respect to this Indenture or
the Securities of such series unless:
(A) the Holder gives to the Trus-
tee written notice of a continuing Event
of Default with respect to such series;
(B) the Holders of at least 25% in
principal amount of the outstanding
Securities of such series make a written
request to the Trustee to pursue the
remedy with respect to such series;
(C) such Holder or Holders offer
to the Trustee indemnity satisfactory to
the Trustee against any loss, liability
or expense; and
(D) the Trustee does not comply
with the request within 60 days after
receipt of the request and the offer of
indemnity.
(2) a Securityholder may not use this Indenture
to prejudice the rights of another Securityholder of
the same series or to obtain a preference or priority
over the other Securityholder of the same series.
SECTION 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Inden-
ture, the right of a Holder of a Security to receive payment of
principal and interest on such Security, on or after the
respective due dates expressed in such Security, or to bring
suit for the enforcement of any such payment on or after such
respective dates, shall be absolute and unconditional and not
be impaired or affected without the consent of such Holder.
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SECTION 6.08. Collection Suit by Trustee.
If an Event of Default with respect to a series of
the Securities in payment of interest or principal or premium,
if any, specified in Section 6.01(1) and (2) occurs and is con-
tinuing, 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, and the
Trustee may obtain judgment in its own name and as trustee of
an express trust and enforce the same against the Company for
the whole amount of principal and interest remaining unpaid
with respect to such series of the Securities.
SECTION 6.09. Trustee May File Proofs of Claims.
The Trustee may, and is appointed the true and lawful
attorney-in-fact for the Holders of the Securities to, (a) file
such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trus-
tee and the Securityholders allowed in any judicial proceedings
relative to the Company, its creditors or its property,
(b) collect and receive any monies or property payable or
deliverable on account of such claims as trustee of a construc-
tive trust or as holder of an equitable lien against the Com-
pany or regarding its assets, and (c) distribute the same after
deduction of its charges and expenses to the extent that such
charges and expenses are not paid out of the estate in any such
proceeding.
SECTION 6.10. Priorities.
(1) If the Trustee collects any money pursuant
to this Article with respect to a series of the Secu-
rities, it shall pay out the money in the following
order:
First: to the Trustee for amounts due under
Section 7.07;
Second: to Holders of the Securities of such
series for amounts due and unpaid on the Securities
of such series for principal (and premium, if any)
and interest, ratably, without preference or priority
of any kind according to the amounts due and payable
on the Securities of such series for principal and
interest, respectively; and
Third: the balance, if any, to the Company.
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(2) The Trustee may fix a record date and pay-
ment date for any payment to Holders of Securities of
the relevant series.
SECTION 6.11. Undertaking for Costs.
All parties to this Indenture agree, and each Holder
of any Security by his acceptance thereof shall be deemed to
have agreed, that in any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trus-
tee for any action taken or omitted by it as Trustee, a court
in its discretion may require the filing by any party litigant
in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party liti-
gant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by
a Holder pursuant to Section 6.07, or a suit by a Holder or
Holders of more than 10% in principal amount of the outstanding
Securities of a series.
SECTION 6.12. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has insti-
tuted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or aban-
doned 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 Trus-
tee and the Holders of Securities shall be restored severally
and respectively to their former positions hereunder and there-
after all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been
instituted.
SECTION 6.13. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities 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.
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SECTION 6.14. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Security to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquies-
cence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders of Securities may be
exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities as
the case may be.
SECTION 6.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may law-
fully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the cove-
nants 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, but will suffer and
permit the execution of every such power as though no such law
had been enacted.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(1) If an Event of Default actually known to the
Trustee has occurred and is continuing, the Trustee shall exer-
cise such of the rights and powers vested in it by this Inden-
ture and use the same degree of care and skill in their exer-
cise as a prudent person would exercise or use under the cir-
cumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of
Default actually known to the Trustee:
(A) The Trustee need perform only those duties as
are specifically set forth herein and no others and no
implied covenants or obligations shall be read into this
Indenture against the Trustee.
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(B) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions and such other doc-
uments delivered to it pursuant to Section 11.04 hereof
furnished to the Trustee and conforming to the require-
ments of this Indenture. However, the Trustee shall exam-
ine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(A) This paragraph does not limit the effect of
paragraph (2) of this Section 7.01.
(B) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it
is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(C) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to
Section 6.05.
(4) 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 to take or omit to take any action under this
Indenture or take any action at the request or direction of
Holders if it shall have reasonable grounds for believing that
repayment of such funds is not assured to it or it does not
receive an indemnity satisfactory to it in its sole discretion
against such risk, liability, loss, fee or expense which might
be incurred by it in compliance with such request or direction.
(5) Every provision of this Indenture that in any
way relates to the Trustee is subject to paragraphs (1), (2),
(3) and (4) of this Section 7.01.
(6) The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree with
the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by
law.
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SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(1) The Trustee may rely on any document believed by
it to be genuine and to have been signed or pre-
sented by the proper person. The Trustee need
not investigate any fact or matter stated in the
document.
(2) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an
Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take
in good faith in reliance on the Certificate or
Opinion.
(3) The Trustee may act through agents and shall not
be responsible for the misconduct or negligence
of any agent appointed with due care.
(4) The Trustee shall not be liable for any action
it takes or omits to take in good faith which it
believes to be authorized or within its rights
or powers.
(5) Any Agent shall have the same rights and be pro-
tected to the same extent as if it were Trustee.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities or coupons and
may otherwise deal with the Company or an Affiliate with the
same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the valid-
ity or adequacy of this Indenture or the Securities or any cou-
pons; it shall not be accountable for the Company's use of the
proceeds from the Securities; it shall not be responsible for
any statement in the Securities or any coupons; it shall not be
responsible for any overissue; it shall not be responsible for
determining whether the form and terms of any Securities or
coupons were established in conformity with this Indenture; and
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it shall not be responsible for determining whether any Securi-
ties were issued in accordance with this Indenture.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing on a series and
if it is known to the Trustee, the Trustee shall mail a notice
of the Default within 90 days after it occurs to Holders of
Registered Securities of the series. Except in the case of a
Default in payment on a series, the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the
interest of Holders of the series. The Trustee shall withhold
notice of a Default described in Section 6.01(3) until at least
90 days after it occurs.
SECTION 7.06. Reports by Trustee to Holders.
Any report required by TIA { 313(a) to be mailed to
Securityholders shall be mailed by the Trustee on or before
June 30 of each year. The Trustee also shall comply with TIA
{ 313(b), (c) and (d).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock
exchange on which any Securities are listed. The Company shall
notify the Trustee when any Securities are listed on a stock
exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to
time reasonable compensation for its services. The Trustee's
compensation shall not be limited by any law on compensation of
a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any
loss or liability incurred by it. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall coop-
erate in the defense. The Trustee may have separate counsel
and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay for any settlement made
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without its prior written consent, which consent shall not be
unreasonably withheld.
The Company need not reimburse any expense or indem-
nify against any loss or liability incurred by the Trustee
through negligence or bad faith.
To secure the Company's payment obligations in this
Section, the Trustee shall have a lien prior to the Securities
and any coupons on all money or property held or collected by
the Trustee, except that held in trust to pay principal or
interest on particular securities.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appoint-
ment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided
in this Section.
The Trustee may resign by so notifying the Company.
The Holders of a majority in principal amount of the Securities
may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee with the Company's consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIA { 310(a) or
{ 310(b) or with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a Custodian or other public officer takes charge
of the Trustee or its property;
(4) the Trustee becomes incapable of acting; or
(5) an event of the kind described in Section
6.01(4) or (5) occurs with respect to the
Trustee.
The Company also may remove the Trustee with or with-
out cause if the Company so notifies the Trustee three months
in advance and if no Default occurs during the three-month
period.
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If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company
shall promptly appoint a successor Trustee.
If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company or the Holders of a majority in
principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with TIA { 310(a) or
{ 310(b) or with Section 7.10, any Securityholder may petition
any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written accep-
tance of its appointment to the retiring Trustee and to the
Company. Thereupon the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under
this Indenture. The successor Trustee shall mail a notice of
its succession to Holders of Registered Securities. The retir-
ing Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided
for in Section 7.07.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into,
or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which
shall be eligible to act as Trustee under TIA {{ 310(a)(1) and
310(a)(2). The Trustee shall have a combined capital and sur-
plus of at least $100,000,000 as set forth in its most recent
published annual report of condition. If the Trustee has or
shall acquire any "conflicting interest" within the meaning of
TIA { 310(b), the Trustee and the Company shall comply with the
provisions of TIA { 310(b). If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and
with the effect hereinafter specified in this Article.
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SECTION 7.11. Preferential Collection of Claims
Against Company.
The Trustee shall comply with TIA { 311(a), excluding
any creditor relationship listed in TIA { 311(b). A Trustee
who has resigned or been removed shall be subject to TIA
{ 311(a) to the extent indicated therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance.
Securities of a series may be defeased in accordance
with their terms and, unless the Bond Resolution otherwise pro-
vides, in accordance with this Article.
The Company at any time may terminate as to a series
all of its obligations under this Indenture, the Securities of
the series and any related coupons ("legal defeasance option").
The Company at any time may terminate as to a series its obli-
gations under Sections 4.03 and 4.04 provided that none of its
obligations in the Sections set forth in the immediately suc-
ceeding sentence may be terminated ("covenant defeasance
option"). However, in the case of the legal defeasance option,
the Company's obligations in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 2.08, 7.07 and 7.08 shall survive until the Securities of
the series are no longer outstanding; thereafter the Company's
obligations in Section 7.07 shall survive.
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance
option. If the Company exercises its legal defeasance option,
a series may not be accelerated because of an Event of Default.
If the Company exercises its covenant defeasance option, a
series may not be accelerated by reference to Section 4.03 or
Section 4.04.
The Trustee upon request shall acknowledge in writing
the discharge of those obligations that the Company terminates.
SECTION 8.02. Conditions to Defeasance.
The Company may exercise as to a series its legal
defeasance option or its covenant defeasance option if:
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(1) the Company irrevocably deposits in trust with
the Trustee or another trustee money or U.S.
Government Obligations;
(2) the Company delivers to the Trustee a certifi-
cate from a nationally recognized firm of inde-
pendent accountants expressing their opinion
that the payments of principal and interest when
due on the deposited U.S. Government Obligations
without reinvestment plus any deposited money
without investment will provide cash at such
times and in such amounts as will be sufficient
to pay principal and interest when due on all
the Securities of the series to maturity or
redemption, as the case may be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under
any other agreement binding on the Company;
(5) the deposit does not cause the Trustee to have a
conflicting interest under TIA { 310(a) or
{ 310(b) as to another series;
(6) the Company delivers to the Trustee an Opinion
of Counsel to the effect that Holders of the
series will not recognize income, gain or loss
for Federal income tax purposes as a result of
the defeasance;
(7) the Company delivers to the Trustee an Opinion
of Counsel to the effect that the trust result-
ing from the deposit does not constitute, or is
qualified as, a regulated investment company
under the Investment Company Act of 1940; and
(8) 91 days pass after the deposit is made and dur-
ing the 91-day period no Default specified in
Section 6.01(4) or (5) occurs that is continuing
at the end of the period.
Before or after a deposit the Company may make
arrangements satisfactory to the Trustee for the redemption of
Securities at a future date in accordance with Article 3.
"U.S. Government Obligations" means direct obliga-
tions of the United States which have the full faith and credit
of the United States pledged for payment and which are not
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callable at the issuer's option, or certificates representing
an ownership interest in such obligations.
SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Govern-
ment Obligations deposited with it pursuant to Section 8.02.
It shall apply the deposited money and the money from U.S.
Government Obligations through the Paying Agent and in accor-
dance with this Indenture to the payment of principal and
interest on Securities of the defeased series.
SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn
over to the Company upon request any excess money or securities
held by them at any time.
The Trustee and the Paying Agent shall pay to the
Company upon request any money held by them for the payment of
principal or interest that remains unclaimed for two years.
After payment to the Company, Securityholders entitled to the
money must look to the Company for payment as unsecured general
creditors unless an abandoned property law designates another
person.
ARTICLE NINE
CONVERSION
SECTION 9.01. Conversion Privilege.
If the Bond Resolution establishing the terms of a
series of securities so provides Securities of any series may
be convertible into or for Common Stock (a "Conversion Right").
The Bond Resolution may establish, among other things, the Con-
version Rate, provisions for adjustments to the Conversion Rate
and limitations upon exercise of the Conversion Right.
A Holder may convert a portion of a Security if the
portion is $1,000 or an integral multiples thereof. Provisions
of this Indenture that apply to the conversion of the aggregate
principal amount a Security also apply to conversion of a por-
tion of it.
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SECTION 9.02. Conversion Procedure.
To convert a Security a Holder must satisfy all
requirements in the Securities or the Bond Resolution and
(i) complete and manually sign the conversion notice (the "Con-
version Notice") provided for in the Bond Resolution or the
Security (or complete and manually sign a facsimile thereof)
and deliver such notice to the Conversion Agent or any other
office or agency maintained for such purpose, (ii) surrender
the Security to the Conversion Agent or at such other office or
agency by physical delivery, (iii) if required, furnish appro-
priate endorsements and transfer documents, and (iv) if
required, pay all transfer or similar taxes. The date on which
such notice shall have been received by and the Security shall
have been so surrendered to the Conversion Agent is the "Con-
version Date." Such Conversion Notice shall be irrevocable and
may not be withdrawn by a Holder for any reason.
The Company will complete settlement of any conver-
sion of Securities not later than the fifth business day fol-
lowing the Conversion Date in respect of the cash portion
elected to be delivered in lieu of shares and not later than
the seventh business day following the Conversion Date in
respect of the portion to be settled in Common Stock.
If any Security is converted between the record date
for the payment of interest and the next succeeding interest
payment date, such Security must be accompanied by funds equal
to the interest payable on such succeeding interest payment
date on the principal amount so converted (unless such Security
shall have been called for redemption during such period, in
which case no such payment shall be required). A Security con-
verted on an interest payment date need not be accompanied by
any payment, and the interest on the principal amount of the
Security being converted will be paid on such interest payment
date to the registered holder of such Security on the immedi-
ately preceding record date. Subject to the aforesaid right of
the registered holder to receive interest, no payment or
adjustment will be made on conversion for interest accrued on
the converted Security or for interest, dividends or other dis-
tributions payable on any security issued on conversion.
If a Holder converts more than one Security at the
same time, the number of full shares issuable or cash payable
upon the conversion shall be based on the total principal
amount of the Securities converted.
Upon surrender of a Security that is converted in
part the Trustee shall authenticate for the Holder a new Secu-
rity equal in principal amount to the unconverted portion of
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the Security surrendered; except that if a Global Security is
so surrendered the Trustee shall authenticate and deliver to
the Depositary a new Global Security in a denomination equal to
and in exchange for the unconverted portion of the principal of
the Global Security so surrendered.
If the last day on which a Security may be converted
is a Legal Holiday in a place where a Conversion Agent is
located, the Security may be surrendered to that Conversion
Agent on the next succeeding day that is not a Legal Holiday.
SECTION 9.03. Taxes on Conversion.
If a Holder of a Security exercises a Conversion
Right, the Company shall pay any documentary, stamp or similar
issue or transfer tax due on the issue of shares of Common
Stock upon the conversion. However, the Holder shall pay any
such tax which is due because securities or other property are
issued in a name other than the Holder's name. Nothing herein
shall preclude any income tax or other withholding required by
law or regulations.
SECTION 9.04. Company Determination Final.
Any determination that the Board of Directors must
make pursuant to this Article 9 is conclusive, absent manifest
error.
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer.
The Trustee (and each Conversion Agent other than the
Company) has no duty to determine when or if an adjustment
under this Article 9 or any Bond Resolution should be made, how
it should be made or calculated or what it should be. The
Trustee (and each Conversion Agent other than the Company)
makes no representation as to the validity or value of any
shares issued upon conversion of Securities. The Trustee (and
each Conversion Agent other than the Company) shall not be
responsible for the Company's failure to comply with this
Article 9 or any provision of a Bond Resolution relating to a
Conversion Right.
SECTION 9.06. Company to Provide Conversion Securities.
The Company shall reserve out of its authorized but
unissued Common Stock or its Common Stock held in treasury
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sufficient shares to permit the conversion of all of the Secu-
rities convertible into Common Stock.
All shares of Common Stock of any person which may be
issued upon conversion of the Securities shall be validly
issued, fully paid and non-assessable.
The Company will comply with all securities laws reg-
ulating the offer and delivery of securities upon conversion of
Securities.
SECTION 9.07. Cash Settlement Option.
If the Bond Resolution so provides, the Company may
elect to satisfy, in whole or in part, a Conversion Right of
Securities convertible into Common Stock of any person by the
delivery of cash. The amount of cash to be delivered shall be
equal to the Market Price (as defined below) on the last Stock
Trading Day preceding the applicable Conversion Date of a share
of Common Stock multiplied by the number of shares of Common
Stock in respect of which the Company elects to deliver cash.
If the Company elects to satisfy, in whole or in part, a Con-
version Right by the delivery of shares of Common Stock, no
fractional shares will be delivered. Instead, the Company will
pay cash based on the Market Price for such fractional share of
Common Stock.
The "Market Price" of the Common Stock into which
Securities may be converted pursuant to a Bond Resolution or
this Article 9 on any Stock Trading Day means the weighted
average per share sale price for all sales of the Common Stock
on such Stock Trading Day (or, if the information necessary to
calculate such weighted average per share sale price is not
reported, the average of the high and low sale prices, or if no
sales are reported, the average of the bid and ask prices or,
if more than one in either case, the average of the average bid
and average ask prices), as reported in the composite transac-
tions for the New York Stock Exchange, or if the Common Stock
is not listed or admitted to trading on such exchange, as
reported in the composite transactions for the principal
national or regional United States securities exchange on which
the Common Stock is listed or admitted to trading or, if the
Common Stock is not listed or admitted to trading on a United
States national or regional securities exchange, as reported by
NASDAQ or by the National Quotation Bureau Incorporated. In
the absence of such quotations, the Company shall be entitled
to determine the Market Price on the basis of such quotations
as it considers appropriate.
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SECTION 9.08. Adjustment in Conversion Rate
for Change in Capital Stock.
If the Company:
(1) pays a dividend or makes a distribution on its
Common Stock in shares of its Common Stock;
(2) subdivides its outstanding shares of Common
Stock into a greater number of shares;
(3) combines its outstanding shares of Common Stock
into a smaller number of shares;
(4) pays a dividend or makes a distribution on its
Common Stock in shares of its Capital Stock other than
Common Stock; or
(5) issues by reclassification of its Common Stock
any shares of its capital stock,
then the conversion privilege and the Conversion Rate in effect
immediately prior to such action shall be adjusted so that the
Holder of a Security thereafter converted may receive the num-
ber of shares of Capital Stock of the Company (or, at the Com-
pany's option, an equivalent amount in cash) which he would
have owned immediately following such action if he had con-
verted the Security immediately prior to such action.
The adjustment shall become effective immediately
after the record date in the case of a dividend or distribution
and immediately after the effective date in the case of a sub-
division, combination or reclassification.
If after an adjustment a Holder of a Security may,
upon conversion, receive shares of two or more classes of Capi-
tal Stock of the Company, the Board of Directors of the Company
shall determine the allocation of the adjusted Conversion Rate
between or among the classes of Capital Stock. After such
allocation, the conversion privilege and the Conversion Rate of
each class of Capital Stock shall thereafter be subject to
adjustment on terms comparable to those applicable to Common
Stock in this Article.
SECTION 9.09. Adjustment in Conversion Rate for
Common Stock Issued Below Market Price.
If the Company issues to all holders of Common Stock
rights, options or warrants to subscribe for or purchase shares
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of Common Stock, or any securities convertible into or
exchangeable for shares of Common Stock, or rights, options or
warrants to subscribe for or purchase such convertible or
exchangeable securities at a Price Per Share (as defined and
determined according to the formula given below) lower than the
current Market Price on the date of such issuance, the Conver-
sion Rate shall be adjusted in accordance with the following
formula:
AC = CC x O + N
------
O + (R)
---
M
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares outstanding immediately prior to such
issuance (which number shall include shares owned or held
by or for the account of the Company).
N = the "Number of Shares," which (i) in the case of rights,
options or warrants to subscribe for or purchase shares of
Common Stock or of securities convertible into or
exchangeable for shares of Common Stock, is the maximum
number of shares of Common Stock initially issuable upon
exercise, conversion or exchange thereof; and (ii) in the
case of rights, options or warrants to subscribe for or
purchase convertible or exchangeable securities, is the
maximum number of shares of Common Stock initially issu-
able upon the conversion or exchange of the convertible or
exchangeable securities issuable upon the exercise of such
rights, options or warrants.
R = the proceeds received or receivable by the Company, which
(i) in the case of rights, options or warrants to sub-
scribe for or purchase shares of Common Stock or of secu-
rities convertible into or exchangeable for shares of Com-
mon Stock, is the aggregate amount received or receivable
by the Company in consideration for the sale and issuance
of such rights, options, warrants or convertible or
exchangeable securities, plus the minimum aggregate amount
of additional consideration, other than the convertible or
exchangeable securities, payable to the Company upon exer-
cise, conversion or exchange thereof; and (ii) in the case
of rights, options or warrants to subscribe for or pur-
chase convertible or exchangeable securities, is the
aggregate amount received or receivable by the Company in
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consideration for the sale and issuance of such rights,
options or warrants, plus the minimum aggregate considera-
tion payable to the Company upon the exercise thereof,
plus the minimum aggregate amount of additional considera-
tion, other than the convertible or exchangeable securi-
ties, payable upon the conversion or exchange of the con-
vertible or exchangeable securities; provided, that in
each case the proceeds received or receivable by the Com-
pany shall be deemed to be the amount of gross cash pro-
ceeds without deducting therefrom any compensation paid or
discount allowed in the sale, underwriting or purchase
thereof by underwriters or dealers or others performing
similar services or any expenses incurred in connection
therewith.
M = the current Market Price per share of Common Stock on the
date of issue of the rights, options or warrants to sub-
scribe for or purchase shares of Common Stock or the secu-
rities convertible into or exchangeable for shares of Com-
mon Stock or the rights, options or warrants to subscribe
for or purchase convertible or exchangeable securities.
"Price Per Share" shall be defined and determined accord-
ing to the following formula:
P = R
---
N
where:
P = Price Per Share
and R and N have the meanings assigned above.
If the Company shall issue rights, options, warrants
or convertible or exchangeable securities for a consideration
consisting, in whole or in part, of property other than cash
the amount of such consideration shall be determined in good
faith by the Board of Directors whose determination shall be
conclusive and evidenced by a resolution of the Board of Direc-
tors filed with the Trustee.
The adjustment shall be made successively whenever
any such additional rights, options, warrants or convertible or
exchangeable securities are issued, and shall become effective
immediately after the date of issue of such shares, rights,
options, warrants or convertible or exchangeable securities.
To the extent that such rights, options or warrants
expire unexercised or to the extent any convertible or
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exchangeable securities are redeemed by the Company or other-
wise cease to be convertible or exchangeable into shares of
Common Stock, the Conversion Rate shall be readjusted to the
Conversion Rate which would then be in effect had the adjust-
ment made upon the date of issuance of such rights, options,
warrants or convertible or exchangeable securities been made
upon the basis of the issuance of rights, options or warrants
to subscribe for or purchase only the number of shares of Com-
mon Stock as to which such rights, options or warrants were
actually exercised and the number of shares of Common Stock
that were actually issued upon the conversion or exchange of
the convertible or exchangeable securities.
SECTION 9.10. Adjustment for Other Distributions.
If the Company distributes to all holders of its Com-
mon Stock any of its assets or debt securities or any rights or
warrants to purchase assets or debt securities of the Company,
the Conversion Rate shall be adjusted in accordance with the
following formula:
AC = CC x (O x M)
-----------
(O x M) - F
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding on the
record date mentioned below (which number shall include
shares owned or held by or for the account of the
Company).
M = the current Market Price per share of Common Stock on the
record date mentioned below.
F = the fair market value on the record date of the assets,
securities, rights or warrants distributed. The Board of
Directors of the Company shall determine the fair market
value.
The adjustment shall become effective immediately
after the record date for the determination of stockholders
entitled to receive the distribution.
This Section does not apply to cash dividends or dis-
tributions or to reclassifications or distributions referred to
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in Section 9.08. Also, this Section does not apply to shares
issued below Market Price referred to in Section 9.09.
SECTION 9.11. Voluntary Adjustment.
The Company at any time may increase the Conversion
Rate, temporarily or otherwise, by any amount but in no event
shall such Conversion Rate result in the issuance of Common
Stock at a price less than the par value of the Common Stock at
the time such increase is made.
SECTION 9.12. When Adjustment May Be Deferred.
No adjustment in the Conversion Rate need be made
unless the adjustment would require a change of at least 1% in
the Conversion Rate. Any adjustments that are not made due to
the immediately preceding sentence shall be carried forward and
taken into account in any subsequent adjustment; provided, that
any adjustment carried forward shall be deferred not in excess
of three years, whereupon any adjustment to the Conversion Rate
will be effected.
All calculations under this Article 9 shall be made
to the nearest cent or to the nearest 1/100th of a share, as
the case may be.
SECTION 9.13. When No Adjustment Required.
Except as set forth in Section 9.09, no adjustment in
the Conversion Rate shall be made because the Company issues,
in exchange for cash, property or services, shares of Common
Stock, or any securities convertible into shares of Common
Stock, or securities carrying the right to purchase shares of
Common Stock or such convertible securities.
No adjustment in the Conversion Rate need be made for
rights to purchase or the sale of Common Stock pursuant to a
Company plan providing for reinvestment of dividends or
interest.
No adjustment in the Conversion Rate need be made for
a change in the par value of the Common Stock.
No adjustment need be made for a transaction referred
to in Section 9.08, 9.09 or 9.10 if Securityholders are to par-
ticipate in the transaction on a basis and with notice that the
Board of Directors determines to be fair and appropriate in
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light of the basis and notice on which holders of Common Stock
participate in the transaction.
SECTION 9.14. Notice of Adjustment.
Whenever the Conversion Rate is adjusted, the Company
shall promptly mail to Holders of Securities affected a notice
of the adjustment. The Company shall file with the Trustee an
Officers' Certificate or a certificate from the Company's inde-
pendent public accountants stating the facts requiring the
adjustment and the manner of computing it. The certificate
shall be conclusive evidence that the adjustment is correct,
absent manifest error.
SECTION 9.15. Notice of Certain Transactions.
If:
(1) the Company proposes to take any action that
would require an adjustment in the Conversion Rate,
(2) the Company proposes to take any action that
would require a supplemental indenture pursuant to
Section 9.16, or
(3) there is a proposed liquidation or dissolution
of the Company,
the Company shall mail to Holders of Securities of any affected
series a notice stating the proposed record date for a dividend
or distribution or the proposed effective date of a subdivi-
sion, combination, reclassification, consolidation, merger,
transfer, lease, liquidation or dissolution. The Company shall
mail the notice at least 15 days before such date. Failure to
mail the notice or any defect in it shall not affect the valid-
ity of the transaction.
SECTION 9.16. Reorganization of the Company.
If the Company is a party to a transaction subject to
Section 5.01 or a merger which reclassifies, exchanges, or
changes its outstanding Common Stock, the successor corporation
(if other than the Company) shall enter into a supplemental
indenture which shall provide that the Holder of a Security may
convert it into the kind and amount of securities, cash or
other assets which he would have owned immediately after the
consolidation, merger, transfer or lease if he had converted
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<PAGE>
the Security immediately before the effective date of the
transaction. The supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be prac-
tical to the adjustments provided for in this Article. The
successor company shall mail to Holders of Securities of any
affected series a notice briefly describing the supplemental
indenture.
If this Section applies, Sections 9.08, 9.09 and 9.10
do not apply.
ARTICLE TEN
AMENDMENTS
SECTION 10.01. Without Consent of Holders.
The Company and the Trustee may amend this Indenture, the
Securities or any coupons without the consent of any
Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Article 5;
(3) to provide that specific provisions of this
Indenture shall not apply to a series not previ-
ously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or
more series; or
(6) to make any change that does not materially
adversely affect the rights of any
Securityholder.
SECTION 10.02. With Consent of Holders.
Unless the Bond Resolution otherwise provides, the
Company and the Trustee may amend this Indenture, the Securi-
ties and any coupons with the written consent of the Holders of
a majority in principal amount of the Securities of all series
affected by the amendment voting as one class. However,
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<PAGE>
without the consent of each Securityholder affected, an amend-
ment under this Section may not:
(1) reduce the amount of Securities whose Holders
must consent to an amendment;
(2) reduce the interest on or change the time for
payment of interest on any Security;
(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted Secu-
rity or reduce the amount of principal of any
Discounted Security that would be due upon an
acceleration thereof;
(5) change the currency in which principal or inter-
est on a Security is payable; or
(6) make any change in Section 6.04 or 10.02, except
to increase the amount of Securities whose Hold-
ers must consent to an amendment or waiver or to
provide that other provisions of this Indenture
cannot be amended or waived without the consent
of each Securityholder affected thereby.
An amendment of a provision included solely for the
benefit of one or more series does not affect Securityholders
of any other series.
Securityholders need not consent to the exact text of
a proposed amendment or waiver; it is sufficient if they con-
sent to the substance thereof.
SECTION 10.03. Compliance with Trust Indenture Act.
Every amendment pursuant to Section 10.01 or 10.02
shall be set forth in a supplemental indenture that complies
with the TIA as then in effect.
If a provision of the TIA requires or permits a pro-
vision of this Indenture and the TIA provision is amended, then
the Indenture provision shall be automatically amended to like
effect.
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<PAGE>
SECTION 10.04. Effect of Consents.
An amendment or waiver becomes effective in accor-
dance with its terms and thereafter binds every Securityholder
entitled to consent to it.
A consent to an amendment or waiver by a Holder of a
Security is a continuing consent by the Holder and every subse-
quent Holder of a Security that evidences the same debt as the
consenting Holder's Security. Any Holder or subsequent Holder
may revoke the consent as to his Security if the Trustee
receives notice of the revocation before the amendment or
waiver becomes effective.
The Company may fix a record date for the determina-
tion of Holders of Registered Securities entitled to give a
consent. The record date shall not be less than 10 nor more
than 60 days prior to the first written solicitation of
Securityholders.
SECTION 10.05. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate
notation about an amendment or waiver on any Security there-
after authenticated. The Company may issue in exchange for
affected Securities new Securities that reflect the amendment
or waiver.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act.
The provisions of TIA {{ 310 through 317 that impose
duties on any person (including the provisions automatically
deemed included herein unless expressly excluded by this Inden-
ture) are a part of and govern this Indenture, whether or not
physically contained herein.
If any provision of this Indenture limits, qualifies
or conflicts with another provision which is required to be
included in this Indenture by the TIA, the required provision
shall control.
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<PAGE>
SECTION 11.02. Notices
Any notice by one party to another is duly given if
in writing and delivered in person, sent by facsimile transmis-
sion confirmed by mail or mailed by first-class mail to the
other's address shown below:
Company: Engelhard Corporation
101 Wood Avenue
Iselin, New Jersey 08830
Attention: General Counsel
Trustee: The Chase Manhattan Bank, N.A.
4 Chase Metrotech Center - 3rd Floor
Brooklyn, New York 11245
Attention: Corporate Trust Department
A party, by notice to the other parties, may desig-
nate additional or different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed
to his address shown on the register kept by the Transfer Agent
or on the Bearer Securities List referred to in Section 2.06.
Failure to mail a notice to a Securityholder or any defect in a
notice mailed to a Securityholder shall not affect the suffi-
ciency of the notice mailed to other Securityholders or the
sufficiency of any published notice.
If a notice is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not
the addressee receives it.
If the Company mails a notice to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same
time.
If in the Company's opinion it is impractical to mail
a notice required to be mailed or to publish a notice required
to be published, the Company may give such substitute notice as
the Trustee approves. Failure to publish a notice as required
or any defect in it shall not affect the sufficiency of any
mailed notice.
All notices shall be in the English language, except
that any published notice may be in an official language of the
country of publication.
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<PAGE>
A "notice" includes any communication required by
this Indenture.
SECTION 11.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA
{ 312(b) with other Securityholders with respect to their
rights under this Indenture or the Securities. The Company,
the Trustee, the Registrar and any other person shall have the
protection of TIA { 312(c).
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall if so requested furnish to the Trustee:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions prece-
dent, if any, provided for in this Indenture
relating to the proposed action have been com-
plied with; and
(2) an Opinion of Counsel stating that, in the opin-
ion of such counsel, all such conditions prece-
dent have been complied with.
SECTION 11.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compli-
ance with a condition or covenant provided for in this Inden-
ture shall include:
(1) a statement that the person making such certifi-
cate or opinion has read such covenant or
condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the
statements or opinions contained in such cer-
tificate or opinion are based;
(3) a statement that, in the opinion of such person,
he has made such examination or investigation as
is necessary to enable him to express an
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informed opinion as to whether or not such cove-
nant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion
of such person, such condition or covenant has
been complied with.
SECTION 11.06. Rules by Company and Agents.
The Company may make reasonable rules for action by
or a meeting of Securityholders. An Agent may make reasonable
rules and set reasonable requirements for its functions.
SECTION 11.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on
which banking institutions are not required to be open. If a
payment date is a Legal Holiday at a place of payment, unless
the Bond Resolution otherwise provides, payment may be made at
that place on the next succeeding day that is not a Legal Holi-
day, and no interest shall accrue for the intervening period.
SECTION 11.08. No Recourse Against Others.
All liability described in the Securities of any
director, officer, employee or stockholder, as such, of the
Company is waived and released.
SECTION 11.09. Duplicate Originals.
The parties may sign any number of copies of this
Indenture. One signed copy is enough to prove this Indenture.
SECTION 11.10. Governing Law.
The laws of the State of New York shall govern this
Indenture, the Securities and any coupons, unless federal law
governs without regard to principles of conflicts of laws.
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SIGNATURES
Dated: , 1995 ENGELHARD CORPORATION
By
Name:
Title:
Dated: , 1995 [ ]
as Trustee
By
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EXHIBIT A
A Form of Registered Security
No. $
ENGELHARD CORPORATION
[Title of Security]
Engelhard Corporation
promises to pay to
or registered assigns
the principal sum of Dollars on ,
Interest Payment Dates:
Record Dates:
Dated:
[ ]
ENGELHARD CORPORATION
Transfer Agent and Paying Agent
(SEAL)
Authenticated: Name:
Title:
Registrar, by
Authorized Signatory Name:
Title:
A-1
<PAGE>
ENGELHARD CORPORATION
[Title of Security]
1. Interest.1
Engelhard Corporation ("Company"), a Delaware corpo-
ration, promises to pay interest on the principal
amount of this Security at the rate per annum shown
above. The Company will pay interest semiannually on
and of each year
commencing , 19__. Interest on the Securi-
ties will accrue from the most recent date to which
interest has been paid or, if no interest has been
paid, from , 19__. Interest will be com-
puted on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment.2
The Company will pay interest on the Securities to
the persons who are registered holders of Securities
at the close of business on the record date for the
next interest payment date, except as otherwise pro-
vided in the Indenture. Holders must surrender Secu-
rities to a Paying Agent to collect principal pay-
ments. The Company will pay principal and interest
in money of the United States that at the time of
payment is legal tender for payment of public and
private debts. The Company may pay principal and
interest by check payable in such money. It may mail
an interest check to a holder's registered address.
3. Bond Agents.
Initially, [ ], will act
as Paying Agent, Transfer Agent and Registrar. The
Company may change any Paying Agent, Transfer Agent
or Registrar without notice. The Company or any
Affiliate may act in any such capacity. Subject to
certain conditions, the Company may change the
Trustee.
4. Indenture.
The Company issued the securities of this series
("Securities") under an Indenture dated as of ,
1995 ("Indenture") between the Company and
[ ] ("Trustee"). The terms of the
Securities include those stated in the Indenture and
A-2
<PAGE>
in the Bond Resolution creating the Securities and
those made part of the Indenture by the Trust Inden-
ture Act of 1939 (15 U.S. Code {{ 77aaa-77bbbb).
Securityholders are referred to the Indenture, the
Bond Resolution and the Act for a statement of such
terms.
5. Optional Redemption.3
On or after , the Company may redeem
all the Securities at any time or some of them from
time to time at the following redemption prices
(expressed in percentages of principal amount), plus
accrued interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter at 100%.
6. Mandatory Redemption.4
The Company will redeem $ principal amount of
Securities on and on each
thereafter through
at a redemption price of 100% of principal amount,
plus accrued interest to the redemption date.5 The
Company may reduce the principal amount of Securities
to be redeemed pursuant to this paragraph by sub-
tracting 100% of the principal amount (excluding pre-
mium) of any Securities (i) that the Company has
acquired or that the Company has redeemed other than
pursuant to this paragraph and (ii) that the Company
has delivered to the Registrar for cancellation. The
Company may subtract the same Security only once.
7. Additional Optional Redemption.6
In addition to redemptions pursuant to the above
paragraph(s), the Company may redeem not more than
$ principal amount of Securities on
and on each thereafter
through at a redemption price of 100% of
principal amount, plus accrued interest to the
redemption date.
A-3
<PAGE>
8. Notice of Redemption.7
Notice of redemption will be mailed at least 20 days
but not more than 60 days before the redemption date
to each holder of Securities to be redeemed at his
registered address.
9. Conversion.8
A Holder of a Security may convert it into Common
Stock of the Company or cash, or a combination
thereof, at the Company's option, at any time before
the close of business on ___________, or, if the
Security is called for redemption, the Holder may
convert it at any time before the close of business
on the redemption date. The initial Conversion Rate
is ____________ (or an equivalent amount in cash) per
$1,000 principal amount of the Securities, subject to
adjustment as provided in Article 9 of the
Indenture.9 The Company will deliver a check in lieu
of any fractional share. On conversion no payment or
adjustment for interest accrued on the Securities
will be made nor for dividends on the Common Stock
issued on conversion. If any Security is converted
between the record date for the payment of interest
and the next succeeding interest payment date, such
Security must be accompanied by funds equal to the
interest payable on such succeeding interest payment
date on the principal amount so converted (unless
such Security shall have been called for redemption,
in which case no such payment shall be required). A
Security converted on an interest payment date need
not be accompanied by any payment, and the interest
on the principal amount of the Security being con-
verted will be paid on such interest payment date to
the registered holder of such Security on the immedi-
ately preceding record date.
To convert a Security a Holder must (1) complete and
sign the conversion notice on the back of the Secu-
rity, (2) surrender the Security to a Conversion
Agent, (3) furnish appropriate endorsements and
transfer documents if required by the Registrar or
Conversion Agent and (4) pay any transfer or similar
tax if required. A Holder may convert a portion of a
Security if the portion is $1,000 or an integral mul-
tiple of $1,000.
A-4
<PAGE>
10. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons
in denominations of $1,000[10] and whole multiples of
$1,000. The transfer of Securities may be registered
and Securities may be exchanged as provided in the
Indenture. The Transfer Agent may require a holder,
among other things, to furnish appropriate endorse-
ments and transfer documents and to pay any taxes and
fees required by law or the Indenture. The Transfer
Agent need not exchange or register the transfer of
any Security or portion of a Security selected for
redemption. Also, it need not exchange or register
the transfer of any Securities for a period of 15
days before a selection of Securities to be redeemed.
11. Persons Deemed Owners.
The registered holder of a Security may be treated as
its owner for all purposes.
12. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the
Securities may be amended with the consent of the
holders of a majority in principal amount of the
securities of all series affected by the amendment.11
Subject to certain exceptions, a default on a series
may be waived with the consent of the holders of a
majority in principal amount of the series.
Without the consent of any Securityholder, the
Indenture or the Securities may be amended, among
other things, to cure any ambiguity, omission, defect
or inconsistency; to provide for assumption of Com-
pany obligations to Securityholders; or to make any
change that does not materially adversely affect the
rights of any Securityholder.
13. Restrictive Covenants.12
The Securities are unsecured general obligations of
the Company limited to $ principal amount.
14. Successors.
When a successor assumes all the obligations of the
Company under the Securities and the Indenture, the
Company will be released from those obligations.
A-5
<PAGE>
15. Defeasance Prior to Redemption or Maturity.13
Subject to certain conditions, the Company at any
time may terminate some or all of its obligations
under the Securities and the Indenture if the Company
deposits with the Trustee money or U.S. Government
Obligations for the payment of principal and interest
on the Securities to redemption or maturity. U.S.
Government Obligations are securities backed by the
full faith and credit of the United States of America
or certificates representing an ownership interest in
such Obligations.
16. Defaults and Remedies.
An Event of Default with respect to this series of
Securities is: default for 30 days in payment of
interest on the Securities of this series; default in
payment of principal on them [If the Security is sub-
ject to redemption insert ",upon redemption or other-
wise"; and, if the Security is entitled to a sinking
fund also add "or in the making of any sinking fund
payment"]; failure by the Company for 60 days after
notice to it to comply with any of its other cove-
nants, conditions or agreements in the Indenture or
the Securities of this series; a default under any
bond, debenture, note or other evidence of indebted-
ness for money borrowed by the Company (including a
default with respect to Securities of any series
other than this series) or under any mortgage, inden-
ture or instrument under which there may be issued or
by which there may be secured or evidenced any
indebtedness for money borrowed by the Company
(including the Indenture), whether such indebtedness
now exists or shall hereafter be created, which
default shall involve an amount in excess of
$25,000,000 and shall constitute a failure to pay
such indebtedness when due and payable after the
expiration of any applicable grace period with
respect thereto and shall have resulted in such
indebtedness becoming or being declared due and pay-
able prior to the date on which it would otherwise
have become due and payable, without such indebted-
ness having been discharged, or such acceleration
having been rescinded or annulled within a period of
30 days after notice as provided in the Indenture;
and certain events of bankruptcy or insolvency. [Add
other events of default if applicable]. If an Event
of Default with respect to this series of the Securi-
ties occurs and is continuing, the Trustee or the
A-6
<PAGE>
Holders of at least 25% in principal amount of the
outstanding Securities of this series may declare all
the Securities of this series to be due and payable
immediately. [If the Security is a Discounted Secu-
rity, add "The amount due and payable 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 obliga-
tions in respect of the payment of the principal and
interest, if any, on the Discounted Securities of
this series shall be terminated.] Holders of Securi-
ties of this series may not enforce the Indenture or
the Securities of this series except as provided in
the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture
or the Securities of this series. Subject to certain
limitations, Holders of a majority in principal
amount of the outstanding Securities of this series
may direct the Trustee in its exercise of any trust
or power with respect to this series of the Securi-
ties. The Trustee may withhold from Holders of Secu-
rities of this series notice of any continuing
default (except a default in payment of principal or
interest) if it determines in good faith that with-
holding notice is in their interests. The Company is
required to file periodic reports with the Trustee as
to the absence of default.
17. Trustee Dealings with Company.
The Trustee, in its individual or any other capacity,
may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may
otherwise deal with those persons, as if it were not
Trustee.
18. No Recourse Against Others.
A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for
any obligations of the Company under the Securities
or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Secu-
rity waives and releases all such liability. The
waiver and release are part of the consideration for
the issue of the Securities.
A-7
<PAGE>
19. Authentication.
This Security shall not be valid until authenticated
by a manual signature of the Registrar.
20. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM
(=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
The Company will furnish to any Securityholder upon writ-
ten request and without charge a copy of the Indenture and the
Bond Resolution, which contains the text of this Security in
larger type. Requests may be made to: Secretary, Engelhard
Corporation, 101 Wood Avenue, Iselin, New Jersey 08830.
A-8
<PAGE>
EXHIBIT B
A Form of Bearer Security
No. $
ENGELHARD CORPORATION
[Title of Security]
Engelhard Corporation
promises to pay to bearer
the principal sum of Dollars on ,
Interest Payment Dates:
Dated:
[ ]
ENGELHARD CORPORATION
Transfer Agent
(SEAL)
Authenticated: Name:
Title:
[ ]
Registrar, by
Authorized Signature Name:
Title:
B-1
<PAGE>
ENGELHARD CORPORATION
[Title of Security]
1. Interest.1
Engelhard Corporation ("Company"), a Delaware corpo-
ration, promises to pay to bearer interest on the
principal amount of this Security at the rate per
annum shown above. The Company will pay interest
semiannually on and of each
year commencing , 19 . Interest on the
Securities will accrue from the most recent date to
which interest has been paid or, if no interest has
been paid, from , 19 . Interest will be
computed on the basis of a 360-day year of twelve 30-
day months.
2. Method of Payment.2
Holders must surrender Securities and any coupons to
a Paying Agent to collect principal and interest pay-
ments. The Company will pay principal and interest
in money of the United States that at the time of
payment is legal tender for payment of public and
private debts. The Company may pay principal and
interest by check payable in such money.
3. Bond Agents.
Initially, [ ], will
act as Transfer Agent, Paying Agent and Registrar.
The Company may change any Paying Agent, Transfer
Agent or Registrar without notice. The Company or
any Affiliate may act in any such capacity. Subject
to certain conditions, the Company may change the
Trustee.
4. Indenture.
The Company issued the securities of this series
("Securities") under an Indenture dated as of
, 1995 ("Indenture") between the Company and
[ ] ("Trustee"). The terms of the
Securities include those stated in the Indenture and
the Bond Resolution and those made part of the Inden-
ture by the Trust Indenture Act of 1939 (15 U.S. Code
{{ 77aaa-77bbbb). Securityholders are referred to
B-2
<PAGE>
the Indenture, the Bond Resolution and the Act for a
statement of such terms.
5. Optional Redemption.3
On or after , the Company may redeem all
the Securities at any time or some of them from time
to time at the following redemption prices (expressed
in percentages of principal amount), plus accrued
interest to the redemption date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter at 100%.
6. Mandatory Redemption.4
The Company will redeem $ principal amount of
Securities on and on each
thereafter through at a redemption price
of 100% of principal amount, plus accrued interest to
the redemption date.5 The Company may reduce the
principal amount of Securities to be redeemed pursu-
ant to this paragraph by subtracting 100% of the
principal amount (excluding premium) of any Securi-
ties (i) that the Company has acquired or that the
Company has redeemed other than pursuant to this
paragraph and (ii) that the Company has delivered to
the Registrar for cancellation. The Company may
subtract the same Security only once.
7. Additional Optional Redemption.6
In addition to redemptions pursuant to the above
paragraph(s), the Company may redeem not more than
$ principal amount of Securities on
and on each thereafter through
at a redemption price of 100% of principal amount,
plus accrued interest to the redemption date.
8. Notice of Redemption.7
Notice of redemption will be published once in an
Authorized Newspaper in the City of New York and if
the Securities are listed on any stock exchange
located outside the United States and such stock
exchange so requires, in any other required city
B-3
<PAGE>
outside the United States at least 20 days but not
more than 60 days before the redemption date. Notice
of redemption also will be mailed to holders who have
filed their names and addresses with the Transfer
Agent within the two preceding years. A holder of
Securities may miss important notices if he fails to
maintain his name and address with the Transfer
Agent.
9. Conversion.8
A Holder of a Security may convert it into Common
Stock of the Company or cash, or a combination
thereof, at the Company's option, at any time before
the close of business on ___________, or, if the
Security is called for redemption, the Holder may
convert it at any time before the close of business
on the redemption date. The initial Conversion Rate
is ____________ (or an equivalent amount in cash) per
$1,000 principal amount of the Securities, subject to
adjustment as provided in Article 9 of the
Indenture.9 The Company will deliver a check in lieu
of any fractional share. On conversion no payment or
adjustment for interest accrued on the Securities
will be made nor for dividends on the Common Stock
issued on conversion. If any Security is converted
between the record date for the payment of interest
and the next succeeding interest payment date, such
Security must be accompanied by funds equal to the
interest payable on such succeeding interest payment
date on the principal amount so converted (unless
such Security shall have been called for redemption,
in which case no such payment shall be required). A
Security converted on an interest payment date need
not be accompanied by any payment, and the interest
on the principal amount of the Security being con-
verted will be paid on such interest payment date to
the registered holder of such Security on the immedi-
ately preceding record date.
To convert a Security a Holder must (1) complete and
sign the conversion notice on the back of the Secu-
rity, (2) surrender the Security to a Conversion
Agent, (3) furnish appropriate endorsements and
transfer documents if required by the Registrar or
Conversion Agent and (4) pay any transfer or similar
tax if required. A Holder may convert a portion of a
Security if the portion is $1,000 or an integral mul-
tiple of $1,000.
B-4
<PAGE>
10. Denominations, Transfer, Exchange.
The Securities are in bearer form with coupons in
denominations of $5,000[10] and whole multiples of
$5,000. The Securities may be transferred by deliv-
ery and exchanged as provided in the Indenture. Upon
an exchange, the Transfer Agent may require a holder,
among other things, to furnish appropriate documents
and to pay any taxes and fees required by law or the
Indenture. The Transfer Agent need not exchange any
Security or portion of a Security selected for
redemption. Also, it need not exchange any Securi-
ties for a period of 15 days before a selection of
Securities to be redeemed.
11. Persons Deemed Owners.
The holder of a Security or coupon may be treated as
its owner for all purposes.
12. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the
Securities may be amended with the consent of the
holders of a majority in principal amount of the
securities of all series affected by the amendment.11
Subject to certain exceptions, a default on a series
may be waived with the consent of the holders of a
majority in principal amount of the series.
Without the consent of any Securityholder, the Inden-
ture or the Securities may be amended, among other
things, to cure any ambiguity, omission, defect or
inconsistency; to provide for assumption of Company
obligations to Securityholders; or to make any change
that does not materially adversely affect the rights
of any Securityholder.
13. Restrictive Covenants.12
The Securities are unsecured general obligations of
the Company limited to $ principal amount.
14. Successors.
When a successor assumes all the obligations of the
Company under the Securities, any coupons and the
Indenture, the Company will be released from those
obligations.
B-5
<PAGE>
15. Defeasance Prior to Redemption or Maturity.13
Subject to certain conditions, the Company at any
time may terminate some or all of its obligations
under the Securities, any coupons and the Indenture
if the Company deposits with the Trustee money or
U.S. Government Obligations for the payment of prin-
cipal and interest on the Securities to redemption or
maturity. U.S. Government Obligations are securities
backed by the full faith and credit of the United
States of America or certificates representing an
ownership interest in such Obligations.
16. Defaults and Remedies.
An Event of Default with respect to this series of
Securities is: default for 30 days in payment of
interest on the Securities of this series; default in
payment of principal on them [If the Security is sub-
ject to redemption insert ",upon redemption or other-
wise"; and, if the Security is entitled to a sinking
fund also add "or in the making of any sinking fund
payment"]; failure by the Company for 60 days after
notice to it to comply with any of its other cove-
nants, conditions or agreements in the Indenture or
the Securities of this series; a default under any
bond, debenture, note or other evidence of indebted-
ness for money borrowed by the Company (including a
default with respect to Securities of any series
other than this series) or under any mortgage, inden-
ture or instrument under which there may be issued or
by which there may be secured or evidenced any
indebtedness for money borrowed by the Company
(including the Indenture), whether such indebtedness
now exists or shall hereafter be created, which
default shall involve an amount in excess of
$25,000,000 and shall constitute a failure to pay
such indebtedness when due and payable after the
expiration of any applicable grace period with
respect thereto and shall have resulted in such
indebtedness becoming or being declared due and pay-
able prior to the date on which it would otherwise
have become due and payable, without such indebted-
ness having been discharged, or such acceleration
having been rescinded or annulled within a period of
30 days after notice as provided in the Indenture;
and certain events of bankruptcy or insolvency. [Add
other events of default if applicable]. If an Event
of Default with respect to this series of the Securi-
ties occurs and is continuing, the Trustee or the
B-6
<PAGE>
Holders of at least 25% in principal amount of the
outstanding Securities of this series may declare all
the Securities of this series to be due and payable
immediately. [If the Security is a Discounted Secu-
rity, add "The amount due and payable 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 obliga-
tions in respect of the payment of the principal and
interest, if any, on the Discounted Securities of
this series shall be terminated.] Holders of Securi-
ties of this series may not enforce the Indenture or
the Securities of this series except as provided in
the Indenture. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture
or the Securities of this series. Subject to certain
limitations, Holders of a majority in principal
amount of the outstanding Securities of this series
may direct the Trustee in its exercise of any trust
or power with respect to this series of the Securi-
ties. The Trustee may withhold from Holders of Secu-
rities of this series notice of any continuing
default (except a default in payment of principal or
interest) if it determines in good faith that with-
holding notice is in their interests. The Company is
required to file periodic reports with the Trustee as
to the absence of default.
17. Trustee Dealings with Company.
The Trustee, in its individual or any other capacity,
may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may
otherwise deal with those persons, as if it were not
Trustee.
18. No Recourse Against Others.
A director, officer, employee or stockholder, as
such, of the Company shall not have any liability for
any obligations of the Company under the Securities
or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their
creation. Each Securityholder by accepting a Secu-
rity waives and releases all such liability. The
waiver and release are part of the consideration for
the issue of the Securities.
B-7
<PAGE>
19. Authentication.
This Security shall not be valid until authenticated
by a manual signature of the Registrar.
20. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM
(=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST
(=custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
The Company will furnish to any Securityholder upon
written request and without charge a copy of the Indenture and
the Bond Resolution, which contains the text of this Security
in larger type. Requests may be made to: Secretary, Engelhard
Corporation, 101 Wood Avenue, Iselin, New Jersey 08830.
B-8
<PAGE>
[FACE OF COUPON]
...............
[$]............
Due............
ENGELHARD CORPORATION
[Title of Security]
Unless the Security attached to this coupon has been
called for redemption, Engelhard Corporation ("Company") will
pay to bearer, upon surrender, the amount shown hereon when
due. This coupon may be surrendered for payment to any Paying
Agent listed on the back of this coupon unless the Company has
replaced such Agent. Payment may be made by check. This cou-
pon represents six months' interest.
ENGELHARD CORPORATION
By
[REVERSE OF COUPON]
PAYING AGENTS
<PAGE>
NOTES TO EXHIBITS A AND B
1 If the Security is not to bear interest at a fixed rate
per annum, insert a description of the manner in which the
rate of interest is to be determined. If the Security is
not to bear interest prior to maturity, so state.
2 If the method or currency of payment is different, insert
a statement thereof.
3 If applicable.
4 If applicable.
5 If the Security is a Discounted Security, insert amount to
be redeemed or method of calculating such amount.
6 If applicable. Also insert, if applicable, provisions for
repayment of Securities at the option of the
Securityholder.
7 If applicable.
8 If applicable.
9 If additional or different adjustment provisions apply so
specify.
10 If applicable. Insert additional or different
denominations.
11 If different terms apply, insert a brief summary thereof.
12 If applicable. If additional or different covenants
apply, insert a brief summary thereof.
13 If applicable. If different defeasance terms apply,
insert a brief summary thereof.
Note: U.S. tax law may require certain legends on Discounted
and Bearer Securities.
<PAGE>
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_________________________________________
: :
:_______________________________________:
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Date: _______________ Your Signature:
(Sign exactly as your name appears on the other side of
this Security)
C-1
<PAGE>
EXHIBIT D
CONVERSION NOTICE
To convert this Security,
check the box:
_____
/ /
To convert only part of this
Security, state the amount
(must be in integral multiples
of $1,000);
$_____________________________
If you want the securities
delivered upon conversion made
out in another person's name,
fill in the form below:
(Insert other person's Social
Security or Tax I.D. Number)
______________________________
______________________________
______________________________
______________________________
(Print or type other
person's name, address
and zip code)
Date: _________ Signature(s): ______________________________
______________________________
(Sign exactly as your name(s)
appear(s) on the other side of
this Security)
D-1
<PAGE>
Signature(s) guaranteed by: ________________________________
(All signatures must be
guaranteed by a member of a
national securities exchange or
of the National Association of
Securities Dealers, Inc. or by a
commercial bank or trust company
located in the United States)
D-2
Exhibit 4.2
_____________________________________________________________
_____________________________________________________________
ENGELHARD CORPORATION
SUBORDINATED DEBT SECURITIES
INDENTURE
Dated as of , 1995
, Trustee
_____________________________________________________________
_____________________________________________________________
<PAGE>
CROSS-REFERENCE TABLE
TIA Indenture
Section Section_
310(a)(1)........................................... 7.08; 7.10
(a)(2).......................................... 7.08; 7.10
(a)(3).......................................... N.A.
(a)(4).......................................... N.A.
(a)(5).......................................... 7.08
(b)............................................. 7.08; 7.10;
12.02
(c)............................................. N.A.
311(a).............................................. 7.11
(b)............................................. 7.11
(c)............................................. N.A.
312(a).............................................. 2.06
(b)............................................. 12.03
(c)............................................. 12.03
313(a).............................................. 7.06
(b)(1).......................................... N.A.
(b)(2).......................................... 7.05
(c)............................................. 7.06; 12.02
(d)............................................. 7.06
314(a).............................................. 4.05; 4.06;
12.02
(b)............................................. N.A.
(c)(1).......................................... 12.04
(c)(2).......................................... 12.04
(c)(3).......................................... N.A.
(d)............................................. N.A.
(e)............................................. 12.05
(f)............................................. N.A.
315(a).............................................. 7.01(2)
(b)............................................. 7.05; 12.02
(c)............................................. 7.01(1)
(d)............................................. 7.01(3)
(e)............................................. 6.11
316(a)(last sentence)............................... 2.11
(a)(1)(A)....................................... 6.05
(a)(1)(B)....................................... 6.04
(a)(2).......................................... N.A.
(b)............................................. 6.07
(c)............................................. 11.04
317(a)(1)........................................... 6.08
(a)(2).......................................... 6.09
(b)............................................. 2.05
318(a).............................................. 12.01
(b)............................................. N.A.
(c)............................................. 12.01
______________________
N.A. means Not Applicable
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
SECTION 1.01 Definitions .................................. 1
SECTION 1.02 Other Definitions ............................ 4
SECTION 1.03 Rules of Construction ........................ 4
ARTICLE TWO
THE SECURITIES
SECTION 2.01 Issuable in Series ........................... 5
SECTION 2.02 Execution and Authentication.................. 7
SECTION 2.03 Bond Agents .................................. 8
SECTION 2.04 Bearer Securities ............................ 8
SECTION 2.05 Paying Agent to Hold Money in Trust .......... 9
SECTION 2.06 Securityholder Lists ......................... 9
SECTION 2.07 Transfer and Exchange ........................ 10
SECTION 2.08 Replacement Securities ....................... 10
SECTION 2.09 Outstanding Securities ....................... 11
SECTION 2.10 Discounted Securities ........................ 11
SECTION 2.11 Treasury Securities .......................... 12
SECTION 2.12 Global Securities ............................ 12
SECTION 2.13 Temporary Securities ......................... 12
SECTION 2.14 Cancellation ................................. 13
SECTION 2.15 Defaulted Interest ........................... 13
ARTICLE THREE
REDEMPTION
SECTION 3.01 Notices to Trustee ........................... 13
SECTION 3.02 Selection of Securities To Be
Redeemed ................................... 14
SECTION 3.03 Notice of Redemption ......................... 14
SECTION 3.04 Effect of Notice of Redemption ............... 15
SECTION 3.05 Payment of Redemption Price .................. 15
SECTION 3.06 Securities Redeemed in Part .................. 16
-i-
<PAGE>
Page
ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities ........................ 16
SECTION 4.02 Corporate Existence .......................... 16
SECTION 4.03 SEC Reports .................................. 17
SECTION 4.04 Annual Review Certificate .................... 17
SECTION 4.05 Notice to Trustee of Certain Defaults ........ 17
SECTION 4.06 Further Assurances to Trustee ................ 17
ARTICLE FIVE
SUCCESSORS
SECTION 5.01 When Company May Merge, etc. ................. 17
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default ............................ 18
SECTION 6.02 Acceleration ................................. 20
SECTION 6.03 Other Remedies ............................... 21
SECTION 6.04 Waiver of Past Defaults ...................... 21
SECTION 6.05 Control by Majority .......................... 21
SECTION 6.06 Limitations on Suits ......................... 22
SECTION 6.07 Rights of Holders To Receive Payment ......... 22
SECTION 6.08 Collection Suit by Trustee ................... 23
SECTION 6.09 Trustee May File Proofs of Claims ............ 23
SECTION 6.10 Priorities ................................... 23
SECTION 6.11 Undertaking for Costs ........................ 24
SECTION 6.12 Restoration of Rights and Remedies ........... 24
SECTION 6.13 Rights and Remedies Cumulative ............... 24
SECTION 6.14 Delay or Omission Not Waiver ................. 25
SECTION 6.15 Waiver of Stay or Extension Laws ............. 25
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee............................. 25
SECTION 7.02 Rights of Trustee ............................ 27
SECTION 7.03 Individual Rights of Trustee ................. 27
SECTION 7.04 Trustee's Disclaimer ......................... 27
-ii-
<PAGE>
Page
SECTION 7.05 Notice of Defaults ........................... 28
SECTION 7.06 Reports by Trustee to Holders ................ 28
SECTION 7.07 Compensation and Indemnity ................... 28
SECTION 7.08 Replacement of Trustee ....................... 29
SECTION 7.09 Successor Trustee by Merger, etc. ............ 30
SECTION 7.10 Eligibility; Disqualification ................ 30
SECTION 7.11 Preferential Collection of Claims
Against Company ............................ 31
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01 Defeasance ................................... 31
SECTION 8.02 Conditions to Defeasance ..................... 31
SECTION 8.03 Application of Trust Money ................... 33
SECTION 8.04 Repayment to Company ......................... 33
ARTICLE NINE
CONVERSION
SECTION 9.01 Conversion Privilege ......................... 33
SECTION 9.02 Conversion Procedure ......................... 33
SECTION 9.03 Taxes on Conversion .......................... 35
SECTION 9.04 Company Determination Final .................. 35
SECTION 9.05 Trustee's and Conversion Agent's
Disclaimer ................................ 35
SECTION 9.06 Company To Provide Conversion
Securities ................................ 35
SECTION 9.07 Cash Settlement Option ....................... 36
SECTION 9.08 Adjustment in Conversion Rate for Change
in Capital Stock .......................... 37
SECTION 9.09 Adjustment in Conversion Rate for
Common Stock Issued
Below Market Price ......................... 37
SECTION 9.10 Adjustment for Other Distributions ........... 40
SECTION 9.11 Voluntary Adjustment ......................... 41
SECTION 9.12 When Adjustment May Be Deferred .............. 41
SECTION 9.13 When No Adjustment Required .................. 41
SECTION 9.14 Notice of Adjustment ......................... 42
SECTION 9.15 Notice of Certain Transactions ............... 42
SECTION 9.16 Reorganization of the Company ................ 42
-iii-
<PAGE>
Page
ARTICLE TEN
SUBORDINATION
SECTION 10.01 Agreement to Subordinate ..................... 43
SECTION 10.02 Certain Definitions .......................... 43
SECTION 10.03 Liquidation; Dissolution; Bankruptcy ......... 44
SECTION 10.04 Company Not To Make Payments with
Respect to Securities in Certain
Circumstances ............................. 44
SECTION 10.05 Acceleration of Securities ................... 45
SECTION 10.06 When Distribution Must Be Paid Over .......... 45
SECTION 10.07 Notice by Company ............................ 46
SECTION 10.08 Subrogation .................................. 46
SECTION 10.09 Subordination May Not Be Impaired by
Company ................................... 46
SECTION 10.10 Distribution or Notice to
Representative ............................ 47
SECTION 10.11 Rights of Trustee and Paying Agent ........... 47
SECTION 10.12 Officer's Certificate ........................ 48
SECTION 10.13 Obligation of Company Unconditional .......... 48
ARTICLE ELEVEN
AMENDMENTS
SECTION 11.01 Without Consent of Holders ................... 49
SECTION 11.02 With Consent of Holders ...................... 49
SECTION 11.03 Compliance with Trust Indenture Act .......... 50
SECTION 11.04 Effect of Consents ........................... 50
SECTION 11.05 Notation on or Exchange of Securities ........ 51
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01 Trust Indenture Act .......................... 51
SECTION 12.02 Notices ...................................... 51
SECTION 12.03 Communications by Holders with Other
Holders.................................... 53
SECTION 12.04 Certificate and Opinion as to Conditions
Precedent ................................. 53
-iv-
<PAGE>
Page
SECTION 12.05 Statements Required in Certificate or
Opinion .................................... 53
SECTION 12.06 Rules by Company and Agents ................... 54
SECTION 12.07 Legal Holidays ................................ 54
SECTION 12.08 No Recourse Against Others .................... 54
SECTION 12.09 Duplicate Originals ........................... 54
SECTION 12.10 Governing Law ................................. 54
SIGNATURES....................................................... 55
Exhibit A: A Form of Registered
Security ................................. A-1
Exhibit B: A Form of Bearer Security
Notes to Exhibits A and B ................. B-1
Exhibit C: A Form of Assignment ................................ C-1
Exhibit D: A Form of Conversion Notice ......................... D-1
-v-
<PAGE>
INDENTURE dated as of , 1995 between ENGELHARD
CORPORATION, a Delaware corporation ("Company"), and ,
a ("Trustee").
Each party agrees as follows for the benefit of the Holders of
the Company's debt securities issued under this Indenture:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. Definitions.
"Affiliate" means any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the
Company.
"Agent" means any Registrar, Transfer Agent or Paying Agent.
"Authorized Newspaper" means a newspaper that is:
(1) printed in the English language or in an official
language of the country of publication;
(2) customarily published on each business day in the place
of publication; and
(3) of general circulation in the relevant place or in the
financial community of such place.
Whenever successive publications in an Authorized Newspaper are required,
they may be made on the same or different business days and in the same or
different Authorized Newspapers.
"Bearer Security" means a Security payable to bearer.
"Board" or "Board of Directors" means the Board of Directors of
the Company or any authorized committee of the Board.
"Bond Resolution" means a resolution adopted by the Board or by
an Officer or committee of Officers pursuant to Board delegation
authorizing a series of Securities.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of
<PAGE>
capital stock of any person and all warrants or options to acquire such
capital stock.
"Common Stock" means the Common Stock, par value $1.00 per
share, of the Company or any security into which the Common Stock may be
converted.
"Company" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Conversion Rate" means such number of shares of Common Stock
for which $1,000 aggregate principal amount of Securities of any series is
convertible, initially as stated in the Bond Resolution authorizing the
series and as adjusted pursuant to the terms of this Indenture and the Bond
Resolution.
"coupon" means an interest coupon for a Bearer Security.
"Default" with respect to a series of the Securities or to all
series of the Securities, as the case may be, means any event which is, or
after notice or passage of time would be, an Event of Default with respect
to such series or to all series of the Securities, as the case may be.
"Discounted Security" means a Security where the amount of
principal due upon acceleration is less than the stated principal amount.
"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or in such
other statements by such other entity as may be approved by a significant
segment of the accounting profession, which are applicable to the
circumstances as in effect on the date of this Indenture.
"Holder" or "Securityholder" means the person in whose name a
Registered Security is registered and the bearer of a Bearer Security or
coupon.
"Indenture" means this Indenture and any Bond Resolution as
amended from time to time.
"NASDAQ" means the National Association of Securities Dealers
Automated Quotation System.
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"Officer" means the Chairman of the Board, the President, any
Vice President (including any Executive Vice President or Senior Vice
President), the Treasurer, any Assistant Treasurer, the Secretary, or the
Controller of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and an Assistant Secretary or Assistant
Controller of the Company.
"Opinion of Counsel" means a written opinion from legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"principal" of a debt security means the principal of the
security plus the premium, if and when applicable, on the security.
"Registered Security" means a Security registered as to
principal and interest by the Registrar.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debt securities issued under this
Indenture.
"series" means a series of Securities or the Securities of the
series.
"Stock Trading Day" means each day on which the securities
exchange or quotation system which is used to determine the Market Price is
open for trading or quotation.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
{ 77aaa-77bbbb) as in effect on the date of this Indenture.
"Treasury Regulations" means regulations of the U.S. Treasury
Department under the Internal Revenue Code of 1986, as amended.
"Trustee" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Trust Officer" means the Chairman of the Board, the President
or any other officer or assistant officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
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"United States" means the United States of America, its
territories and possessions and other areas subject to its jurisdiction.
"Yield to Maturity" means the yield to maturity on any
Securities, calculated at the time of issuance of such Securities, or, if
applicable, at the most recent redetermination of interest on such
Securities, and calculated in accordance with accepted financial practice.
SECTION 1.02. Other Definitions.
Term Defined in Section
"Bankruptcy Law" 6.01
"Bearer Securities List" 2.06
"Conversion Agent" 2.03
"Conversion Date" 9.02
"Conversion Notice" 9.02
"Conversion Right" 9.01
"Custodian" 6.01
"Event of Default" 6.01
"Legal Holiday" 12.07
"Market Price" 9.07
"Paying Agent" 2.03
"Registrar" 2.03
"Representative" 10.02
"Senior Indebtedness" 10.02
"Transfer Agent" 2.03
"U.S. Government Obligations" 8.02
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP in the United
States;
(3) GAAP principles are those applicable and in effect on the
date of this Indenture;
(4) all terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or
defined by SEC rule under the
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TIA have the meanings assigned to them by such
definitions;
(5) "or" is not exclusive; and
(6) words in the singular include the plural, and in the
plural include the singular.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Issuable in Series.
The aggregate principal amount of Securities that may be issued
under this Indenture is unlimited. The Securities may be issued from time
to time in one or more series. Each series shall be created by a Bond
Resolution or a supplemental indenture that establishes the terms of the
series, which may include the following:
(1) the title of the series;
(2) the aggregate principal amount of the series;
(3) the interest rate, if any, or method of calculating the
interest rate;
(4) the date from which interest will accrue;
(5) the record dates for interest payable on Registered
Securities;
(6) the dates when principal and interest are payable;
(7) the manner of paying principal and interest;
(8) the places where principal and interest are payable;
(9) the Registrar, Transfer Agent and Paying Agent;
(10) the terms of any mandatory or optional redemption by the
Company;
(11) the terms of any redemption at the option of Holders;
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(12) the denominations in which Securities are issuable;
(13) whether Securities will be issuable as Registered
Securities or Bearer Securities;
(14) whether and upon what terms Registered Securities and
Bearer Securities may be exchanged;
(15) whether any Securities will be represented by a Security
in global form;
(16) the terms of any global Security;
(17) the terms of any tax indemnity;
(18) the currencies (including any composite currency) in which
principal or interest may be paid;
(19) if payments of principal or interest may be made in a
currency other than that in which Securities are
denominated, the manner for determining such payments;
(20) if amounts of principal or interest may be determined by
reference to an index, formula or other method, the
manner for determining such amounts;
(21) provisions for electronic issuance of Securities or for
Securities in uncertificated form;
(22) the portion of principal payable upon acceleration of a
Discounted Security;
(23) any Events of Default or covenants in addition to or in
lieu of those set forth in this Indenture;
(24) whether and upon what terms Securities may be defeased;
(25) the forms of the Securities or any coupon, which may be in
the form of Exhibit A or B or otherwise;
(26) any terms that may be required by or advisable under U.S.
or other applicable laws;
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(27) the terms of the subordination of the Securities of such
series, if different from that provided in Article 10;
(28) whether and upon what terms the Securities will be
convertible into or exchangeable for Common Stock of the
Company, which may include the terms provided in
Article 9; and
(29) any other terms not inconsistent with this Indenture.
All Securities of one series need not be issued at the same
time and, unless otherwise provided, a series may be reopened for issuances
of additional Securities of such series.
The creation and issuance of a series and the authentication
and delivery thereof are not subject to any conditions precedent.
SECTION 2.02. Execution and Authentication.
Two Officers shall sign the Securities by manual or facsimile
signature. The Company's seal may be reproduced on the Securities. An
Officer shall sign any coupons by facsimile signature.
If an Officer whose signature is on a Security or its coupons
no longer holds that office at the time the Security is authenticated or
delivered, the Security and coupons shall nevertheless be valid.
A Security and its coupons shall not be valid until the
Security is authenticated by the manual signature of the Registrar. The
signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated the date of its
original issuance or as provided in the Bond Resolution.
Securities may have notations, legends or endorsements required
by law, stock exchange rule, agreement or usage.
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SECTION 2.03. Bond Agents.
The Company shall maintain an office or agency where Securities
may be authenticated ("Registrar"), where Securities may be presented for
registration of transfer or for exchange ("Transfer Agent"), where
Securities may be presented for payment ("Paying Agent") and where
Securities may be presented for conversion ("Conversion Agent"). Whenever
the Company must issue or deliver Securities pursuant to this Indenture,
the Registrar shall authenticate the Securities at the Company's written
request. The Transfer Agent shall keep a register of the Securities and of
their transfer and exchange.
The Company may appoint more than one Registrar, Transfer
Agent, Paying Agent or Conversion Agent for a series. The Company shall
notify the Trustee of the name and address of any Agent not a party to this
Indenture. If the Company fails to maintain a Registrar, Transfer Agent,
Paying Agent or Conversion Agent for a series, the Trustee shall act as
such.
SECTION 2.04. Bearer Securities.
U.S. laws and Treasury Regulations restrict sales or exchanges
of and payments on Bearer Securities. Therefore, except as provided below:
(1) Bearer Securities will be offered, sold and delivered
only outside the United States and will be delivered only
upon presentation of a certificate in a form prescribed
by the Company to comply with U.S. laws and regulations.
(2) Bearer Securities will not be issued in exchange for
Registered Securities.
(3) All payments of principal and interest (including
original issue discount) on Bearer Securities will be
made outside the United States by a Paying Agent located
outside the United States unless the Company determines
that:
(A) such payments may not be made by such Paying Agent
because the payments are illegal or prevented by
exchange controls as described in Treasury
Regulation { 1.163-5(c)(2)(v); and
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(B) making the payments in the United States would not
have an adverse tax effect on the Company.
If there is a change in the relevant provisions of U.S. laws or
Treasury Regulations or the judicial or administrative interpretation
thereof, a restriction set forth in paragraph (1), (2) or (3) above will
not apply to a series if the Company determines that the relevant
provisions no longer apply to the series or that failure to comply with the
relevant provisions would not have an adverse tax effect on the Company or
on Securityholders or cause the series to be treated as "registration-
required" obligations under U.S. law.
The Company shall notify the Trustee of any determinations by
the Company under this Section.
SECTION 2.05. Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent for a series other
than the Trustee to agree in writing that the Paying Agent will hold in
trust for the benefit of the persons entitled thereto all money held by the
Paying Agent for the payment of principal of or interest on the series, and
will notify the Trustee of any default by the Company in making any such
payment.
While any such default continues, the Trustee may require a
Paying Agent to pay all money so held by it to the Trustee. The Company at
any time may require a Paying Agent to pay all money held by it to the
Trustee. Upon payment over to the Trustee, the Paying Agent shall have no
further liability for the money.
If the Company or an Affiliate acts as Paying Agent for a
series, it shall segregate and hold as a separate trust fund all money held
by it as Paying Agent for the series.
SECTION 2.06. Securityholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names
and addresses of Securityholders. If the Trustee is not the Transfer
Agent, the Company shall furnish to the Trustee semiannually and at such
other times as the Trustee may request a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Holders of
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Registered Securities and Holders of Bearer Securities whose names are on
the list referred to below.
The Transfer Agent shall keep a list of the names and addresses
of Holders of Bearer Securities who file a request to be included on such
list (the "Bearer Securities List"). A request will remain in effect for
two years unless renewed or amended.
Whenever the Company or the Trustee is required to mail a
notice to all Holders of Registered Securities of a series, it also shall
mail the notice to Holders of Bearer Securities of the series whose names
are on the Bearer Securities List.
Whenever the Company is required to publish a notice to all
Holders of Bearer Securities of a series, it also shall mail the notice to
such of them whose names are on the Bearer Securities List.
SECTION 2.07. Transfer and Exchange.
Where Registered Securities of a series are presented to the
Transfer Agent with a request to register a transfer or to exchange them
for an equal principal amount of Registered Securities of other
denominations of the series, the Transfer Agent shall register the transfer
or make the exchange if its requirements for such transactions are met.
The Transfer Agent may require a Holder to pay a sum sufficient
to cover any taxes imposed on a transfer or exchange.
If a series provides for Registered and Bearer Securities and
for their exchange, Bearer Securities may be exchanged for Registered
Securities and Registered Securities may be exchanged for Bearer Securities
as provided in the Securities or the Bond Resolution if the requirements of
the Transfer Agent for such transactions are met and if Section 2.04
permits the exchange.
SECTION 2.08. Replacement Securities.
If the Holder of a Security or coupon claims that it has been
lost, destroyed or wrongfully taken, then, in the absence of notice to the
Company or the Trustee that the Security or coupon has been acquired by a
bona fide purchaser, the
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Company shall issue a replacement Security or coupon if the Company and the
Trustee receive:
(1) evidence satisfactory to them of the loss, destruction or
taking;
(2) an indemnity bond satisfactory to them; and
(3) payment of a sum sufficient to cover their expenses and
any taxes for replacing the Security or coupon.
A replacement Security shall have coupons attached corresponding to those,
if any, on the original Security.
Every replacement Security or coupon is an additional
obligation of the Company.
SECTION 2.09. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Registrar except for those cancelled by it, those
delivered to it for cancellation, and those described in this Section as
not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases
to be outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a bona fide
purchaser.
If Securities are considered paid under Section 4.01, they
cease to be outstanding and interest on them ceases to accrue.
A Security does not cease to be outstanding because the Company
or an Affiliate holds the Security.
SECTION 2.10. Discounted Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
the principal amount of a Discounted Security shall be the amount of
principal that would be due as of the date of such determination if payment
of the Security were accelerated on that date.
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SECTION 2.11. Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, waiver or consent,
Securities owned by the Company or an Affiliate shall be disregarded,
except that for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded.
SECTION 2.12. Global Securities.
If the Bond Resolution so provides, the Company may issue some
or all of the Securities of a series in temporary or permanent global form.
A global Security may be in registered form, in bearer form with or without
coupons or in uncertificated form. A global Security shall represent that
amount of Securities of a series as specified in the global Security or as
endorsed thereon from time to time. At the Company's request, the
Registrar shall endorse a global Security to reflect the amount of any
increase or decrease in the Securities represented thereby.
The Company may issue a global Security only to a depository
designated by the Company. A depository may transfer a global Security
only as a whole to its nominee or to a successor depository.
The Bond Resolution may establish, among other things, the
manner of paying principal and interest on a global Security and whether
and upon what terms a beneficial owner of an interest in a global Security
may exchange such interest for definitive Securities.
The Company, an Affiliate, the Trustee and any Agent shall not
be responsible for any acts or omissions of a depository, for any
depository records of beneficial ownership interests or for any
transactions between the depository and beneficial owners.
SECTION 2.13. Temporary Securities.
Until definitive Securities of a series are ready for delivery,
the Company may use temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations
that the Company considers appropriate for temporary Securities. Temporary
Securities may be in global form. Temporary Bearer Securities may have one
or
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more coupons or no coupons. Without unreasonable delay, the Company shall
deliver definitive Securities in exchange for temporary Securities.
SECTION 2.14. Cancellation.
The Company at any time may deliver Securities to the Registrar
for cancellation. The Transfer Agent and the Paying Agent shall forward to
the Registrar any Securities and coupons surrendered to them for payment,
exchange or registration of transfer. The Registrar shall cancel all
Securities or coupons surrendered for payment, registration of transfer,
exchange or cancellation as follows: the Registrar will cancel all Regis-
tered Securities and matured coupons. The Registrar also will cancel all
Bearer Securities and unmatured coupons unless the Company requests the
Registrar to hold the same for redelivery. Any Bearer Securities so held
shall be considered delivered for cancellation under Section 2.09. The
Registrar shall destroy cancelled Securities and coupons unless the Company
otherwise directs.
Unless the Bond Resolution otherwise provides, the Company may
not issue new Securities to replace Securities that the Company has paid or
that the Company has delivered to the Registrar for cancellation.
SECTION 2.15. Defaulted Interest
If the Company defaults in a payment of interest on Registered
Securities, it need not pay the defaulted interest to Holders on the
regular record date. The Company may fix a special record date for
determining Holders entitled to receive defaulted interest or the Company
may pay defaulted interest in any other lawful manner.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
Securities of a series that are redeemable before maturity
shall be redeemable in accordance with their terms and, unless the Bond
Resolution otherwise provides, in accordance with this Article.
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In the case of a redemption by the Company, the Company shall
notify the Trustee of the redemption date and the principal amount of
Securities to be redeemed. The Company shall notify the Trustee at least
45 days before the redemption date unless a shorter notice is satisfactory
to the Trustee.
If the Company is required to redeem Securities, it may reduce
the principal amount of Securities required to be redeemed to the extent it
is permitted a credit by the terms of the Securities and it notifies the
Trustee of the amount of the credit and the basis for it. If the reduction
is based on a credit for acquired or redeemed Securities that the Company
has not previously delivered to the Registrar for cancellation, the Company
shall deliver the Securities at the same time as the notice.
SECTION 3.02. Selection of Securities To Be Redeemed.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select the Securities to be redeemed by a method the
Trustee considers fair and appropriate. The Trustee shall make the
selection from Securities of the series outstanding and not previously
called for redemption. The Trustee may select for redemption portions of
the principal of Securities having denominations larger than the minimum
denomination for the series. Securities and portions thereof selected for
redemption shall be in amounts equal to the minimum denomination for the
series or an integral multiple thereof. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of
Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 20 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption by first-class mail to
each Holder of Registered Securities whose Securities are to be redeemed.
If Bearer Securities are to be redeemed, the Company shall
publish a notice of redemption in an Authorized Newspaper as provided in
the Securities.
A notice shall identify the Securities of the series to be
redeemed and shall state:
(1) the redemption date;
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(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Securities called for redemption, together with all
coupons, if any, maturing after the redemption date, must
be surrendered to the Paying Agent to collect the
redemption price;
(5) that interest on Securities called for redemption ceases
to accrue on and after the redemption date; and
(6) whether the redemption by the Company is mandatory or
optional.
A redemption notice given by publication need not identify
Registered Securities to be redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is given, Securities called for
redemption become due and payable on the redemption date at the redemption
price stated in the notice.
SECTION 3.05. Payment of Redemption Price.
On or before the redemption date, the Company shall deposit
with the Paying Agent money sufficient to pay the redemption price of and
accrued interest on all Securities to be redeemed on that date.
When the Holder of a Security surrenders it for redemption in
accordance with the redemption notice, the Company shall pay to the Holder
on the redemption date the redemption price and accrued interest to such
date, except that:
(1) the Company will pay any such interest (except defaulted
interest) to Holders on the record date of Registered
Securities if the redemption date occurs on an interest
payment date; and
(2) the Company will pay any such interest to Holders of
coupons that mature on or before the
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redemption date upon surrender of such coupons to the
Paying Agent.
Coupons maturing after the redemption date on a called Security
are void absent a payment default on that date. Nevertheless, if a Holder
surrenders for redemption a Bearer Security missing any such coupons, the
Company and the Trustee may deduct the face amount of such coupons from the
redemption price. If thereafter the Holder surrenders to the Paying Agent
the missing coupons, the Company will return the amount so deducted. The
Company also may waive surrender of the missing coupons if it receives an
indemnity bond satisfactory to the Company.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the
Company shall deliver to the Holder a new Security of the same series equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
(1) The Company shall duly and punctually pay the principal
of (and premium, if any) and interest on a series in accordance with the
terms of the Securities for the series, any related coupons, and this
Indenture on the dates and in the manner provided in the Securities and in
this Indenture.
(2) Unless the Bond Resolution otherwise provides, the
Company shall pay interest on overdue principal of a series of the
Securities at the rate of interest or Yield to Maturity (in the case of a
Discounted Security) borne by such series of Securities or at such other
rate as may be specified in such Security; and it shall pay interest on
overdue installments of interest at the same rate to the extent lawful.
SECTION 4.02. Corporate Existence.
Subject to Article 5, Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence, material rights (charter and statutory) and
franchises; provided, however, that the
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Company shall not be required to preserve any such material right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Company.
SECTION 4.03. SEC Reports.
The Company shall file with the Trustee within 30 days after it
is required to file them with the SEC copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the SEC may by rules and regulations prescribe)
which the Company is required to file with the SEC pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934. The Company also shall
comply with the other provisions of TIA { 314(a).
SECTION 4.04. Annual Review Certificate.
The Company shall file with the Trustee within 120 days after
the end of each fiscal year of the Company an Officers' Certificate
stating:
(1) that the signing officers have supervised a review of the
activities of the Company and its Subsidiaries during the preceding
fiscal year to determine whether the Company has observed and
performed its obligations under this Indenture; and
(2) that to the best knowledge of each officer signing such
certificate the Company has observed and performed all of its
covenants in this Indenture and is not in default in the observance
and performance of any of the terms, provisions and conditions of
this Indenture (or if the Company is in such default, specifying
those defaults and the nature thereof of which he has knowledge).
Such certificate need not comply with Section 12.05.
SECTION 4.05. Notice to Trustee of Certain Defaults.
The Company shall give the Trustee within 30 days written
notice of (a) any failure of the kind described in Section 6.01(3) which
remains uncured for 30 days after the Company has knowledge thereof, or (b)
an event of default described in Section 6.01(4).
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SECTION 4.06. Further Assurances to Trustee.
The Company will, upon request of the Trustee, execute and
deliver such further instruments and do such further acts as may reasonably
be necessary or proper to carry out more effectively the purposes of this
Indenture.
ARTICLE FIVE
SUCCESSORS
SECTION 5.01. When Company May Merge, etc.
The Company shall not consolidate with or merge into, or
transfer all or substantially all of its assets to, any person unless:
(1) the person is organized under the laws of the United
States or a State thereof;
(2) the person assumes by supplemental indenture all the
obligations of the Company under this Indenture, the
Securities and any coupons;
(3) immediately after the transaction no Default exists; and
The successor shall be substituted for the Company, and
thereafter all obligations of the Company under this Indenture, the
Securities and any coupons shall terminate.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default.
An "Event of Default" with respect to a series of the
Securities occurs if:
(1) the Company defaults in the payment of interest on
a Security of such series when the same becomes due and payable
and the default continues for a period of 30 days;
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(2) the Company defaults in the payment of the
principal of a Security of such series when the same becomes
due and payable at maturity, upon redemption or otherwise, or
in the making of any sinking fund payment, if any, required by
the terms of such series;
(3) the Company fails to comply with any of its other
covenants, conditions or agreements in the Securities of such
series or this Indenture and the default continues for the
period and after the notice specified below;
(4) the Company, pursuant to or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order
for relief against it in an involuntary case,
(C) consents to the appointment of a
Custodian of it or for all or substantially all
of its property, or
(D) makes a general assignment for the
benefit of its creditors;
(5) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company in
an involuntary case,
(B) appoints a Custodian of the Company
for all or substantially all of its property, or
(C) orders the liquidation of the
Company, and the order or decree remains
unstayed and in effect for 90 days;
(6) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company
(including a default with respect to Securities of any series
other than that series) or under any mortgage, indenture or
instrument under which there may be issued or by which there
may be secured or evidenced any indebtedness for money
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borrowed by the Company (including this Indenture), whether
such indebtedness now exists or shall hereafter be created,
which default shall involve an amount in excess of $25,000,000,
and shall constitute a failure to pay such indebtedness when
due and payable after the expiration of any applicable grace
period with respect thereto and shall have resulted in such
indebtedness becoming or being declared due and payable prior
to the date on which it would otherwise have become due and
payable, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled within a
period of 30 days after there shall have been given, by
registered or certified mail, to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 10%
in principal amount of the outstanding Securities of that
series a written notice specifying such default and requiring
the Company to cause such indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder; or
(7) any other Event of Default provided with respect to
Securities of that series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or State law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
A default under clause 3 is not an Event of Default with
respect to a series of the Securities until the Trustee or the Holders of
at least 25% in principal amount of the outstanding Securities of such
series notify the Company of the default and the Company does not cure the
default within 60 days after receipt of the notice. The notice must
specify the default, demand that it be remedied and state that the notice
is a "Notice of Default."
SECTION 6.02. Acceleration.
If an Event of Default with respect to a series of the
Securities occurs and is continuing, the Trustee by notice to the Company,
or the Holders of at least 25% in principal amount of the outstanding
Securities of such series by notice to the Company and the Trustee, may
declare the principal and accrued interest on all the Securities of such
series to be due and payable immediately. Upon such declaration, such
principal
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(or, if the Securities of a series are Discounted Securities, such portion
of the principal due and payable immediately. The Holders of a majority in
principal amount of the outstanding Securities of such series by notice to
the Trustee may rescind or annul such acceleration and its consequences if
all existing Events of Default with respect to such series have been cured
or waived pursuant to Section 6.04 and if the rescission would not conflict
with any judgment or decree.
SECTION 6.03. Other Remedies.
(1) If an Event of Default with respect to a series of
the Securities occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to
collect the payment of principal or interest on the Securities
of such series or to enforce the performance of any provision
of the Securities of such series or this Indenture, and may
take any necessary action required of it as Trustee to settle,
compromise, adjust or otherwise conclude any proceedings to
which it is a party.
(2) The Trustee may maintain a proceeding even if it
does not possess any of the Securities or does not produce any
of them in the proceeding. A delay or omission by the Trustee
or any Securityholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event
of Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults.
Subject to Section 11.02, the Holders of a majority in
principal amount of the outstanding Securities of a series by notice to the
Trustee may waive an existing Default with respect to such series and its
consequences. When a Default is waived with respect to a series of the
Securities, it is cured and stops continuing with respect to such series.
SECTION 6.05. Control by Majority.
The Holders of a majority in principal amount of the
outstanding Securities of a series may direct the time, method and place of
conducting any proceeding with respect to such series for any remedy
available to the Trustee or exercising
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any trust or power conferred on it. The Trustee, however, may refuse to
follow any direction that conflicts with law or this Indenture, that is
unduly prejudicial to the rights of another Holder of a Security of such
series, that would involve the Trustee in personal liability, or if the
Trustee does not have sufficient indemnification against any loss or
expense.
SECTION 6.06. Limitations on Suits.
(1) A Holder of a Security of a series may not pursue
any remedy with respect to this Indenture or the Securities of
such series unless:
(A) the Holder gives to the Trustee
written notice of a continuing Event of Default
with respect to such series;
(B) the Holders of at least 25% in
principal amount of the outstanding Securities
of such series make a written request to the
Trustee to pursue the remedy with respect to
such series;
(C) such Holder or Holders offer to the
Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense; and
(D) the Trustee does not comply with the
request within 60 days after receipt of the
request and the offer of indemnity.
(2) a Securityholder may not use this Indenture to
prejudice the rights of another Securityholder of the same
series or to obtain a preference or priority over the other
Securityholder of the same series.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of a Holder of a Security to receive payment of principal and
interest on such Security, on or after the respective due dates expressed
in such Security, or to bring suit for the enforcement of any such payment
on or after such respective dates, shall be absolute and unconditional and
not be impaired or affected without the consent of such Holder.
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SECTION 6.08. Collection Suit by Trustee.
If an Event of Default with respect to a series of the
Securities in payment of interest or principal or premium, if any,
specified in Section 6.01(1) and (2) occurs and is continuing, 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, and the Trustee may obtain judgment in its own name and as
trustee of an express trust and enforce the same against the Company for
the whole amount of principal and interest remaining unpaid with respect to
such series of the Securities.
SECTION 6.09. Trustee May File Proofs of Claims.
The Trustee may, and is appointed the true and lawful
attorney-in-fact for the Holders of the Securities to, (a) file such proofs
of claim and other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee and the Securityholders allowed in
any judicial proceedings relative to the Company, its creditors or its
property, (b) collect and receive any monies or property payable or
deliverable on account of such claims as trustee of a constructive trust or
as holder of an equitable lien against the Company or regarding its assets,
and (c) distribute the same after deduction of its charges and expenses to
the extent that such charges and expenses are not paid out of the estate in
any such proceeding.
SECTION 6.10. Priorities.
(1) If the Trustee collects any money pursuant to this
Article with respect to a series of the Securities, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section
7.07;
Second: to Holders of the Securities of such series for
amounts due and unpaid on the Securities of such series for
principal (and premium, if any) and interest, ratably, without
preference or priority of any kind according to the amounts due
and payable on the Securities of such series for principal and
interest, respectively; and
Third: the balance, if any, to the Company.
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(2) The Trustee may fix a record date and payment date
for any payment to Holders of Securities of the relevant
series.
SECTION 6.11. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that in
any suit for the enforcement of any right or remedy under this Indenture or
in any suit against the Trustee for any action taken or omitted by it as
Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section does not apply to a suit by the Trustee,
a suit by a Holder pursuant to Section 6.07, or a suit by a Holder or
Holders of more than 10% in principal amount of the outstanding Securities
of a series.
SECTION 6.12. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security 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 of Securities 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 6.13. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities 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.
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SECTION 6.14. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given
by this Article or by law to the Trustee or to the Holders of Securities
may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities as the case may
be.
SECTION 6.15. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension
law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company
(to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee.
(1) If an Event of Default actually known to the Trustee has
occurred and is continuing, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent person would exercise or use under
the circumstances in the conduct of his own affairs.
(2) Except during the continuance of an Event of Default
actually known to the Trustee:
(A) The Trustee need perform only those duties as are
specifically set forth herein and no others and no implied covenants
or obligations shall be read into this Indenture against the Trustee.
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(B) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates
or opinions and such other documents delivered to it pursuant to
Section 12.04 hereof furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine
the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(A) This paragraph does not limit the effect of
paragraph (2) of this Section 7.01.
(B) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts.
(C) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05
(4) 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 to to take or omit to
take any action under this Indenture or take any action at the request or
direction of Holders if it shall have reasonable grounds for believing that
repayment of such funds is not assured to it or it does not receive an
indemnity satisfactory to it in its sole discretion against such risk,
liability, loss, fee or expense which might be incurred by it in compliance
with such request or direction.
(5) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (1), (2), (3) and (4) of this
Section 7.01.
(6) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.
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SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(1) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact
or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on
the Certificate or Opinion.
(3) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent
appointed with due care.
(4) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be
authorized or within its right or powers.
(5) Any Agent shall have the same rights and be protected to
the same extent as if it were Trustee.
SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities or coupons and may otherwise deal with
the Company or an Affiliate with the same rights it would have if it were
not Trustee. Any Agent may do the same with like rights.
SECTION 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities or any coupons; it shall not
be accountable for the Company's use of the proceeds from the Securities;
it shall not be responsible for any statement in the Securities or any
coupons; it shall not be responsible for any overissue; it shall not be
responsible for determining whether the form and terms of any Securities or
coupons were established in conformity with this Indenture; and
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it shall not be responsible for determining whether any Securities were
issued in accordance with this Indenture.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing on a series and if it is
known to the Trustee, the Trustee shall mail a notice of the Default within
90 days after it occurs to Holders of Registered Securities of the series.
Except in the case of a Default in payment on a series, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in
good faith determines that withholding the notice is in the interest of
Holders of the series. The Trustee shall withhold notice of a Default
described in Section 6.01(3) until at least 90 days after it occurs.
SECTION 7.06. Reports by Trustee to Holders.
Any report required by TIA { 313(a) to be mailed to
Securityholders shall be mailed by the Trustee on or before June 30 of each
year. The Trustee also shall comply with TIA { 313(b), (c) and (d).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange on
which any Securities are listed. The Company shall notify the Trustee when
any Securities are listed on a stock exchange.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust.
The Company shall reimburse the Trustee upon request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee against any loss or
liability incurred by it. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the
claim and the Trustee shall cooperate in the defense. The Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses
of such counsel. The Company need not pay for any settlement made without
its prior written consent.
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The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through negligence or bad
faith.
To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities and any coupons on
all money or property held or collected by the Trustee, except that held in
trust to pay principal or interest on particular securities.
SECTION 7.08. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section.
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the Securities may remove the
Trustee by so notifying the Trustee and may appoint a successor Trustee
with the Company's consent.
The Company may remove the Trustee if:
(1) the Trustee fails to comply with TIA { 310(a) or { 310(b)
or with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a Custodian or other public officer takes charge of the
Trustee or its property;
(4) the Trustee becomes incapable of acting; or
(5) an event of the kind described in Section 6.01(4) or (5)
occurs with respect to the Trustee.
The Company also may remove the Trustee with or without cause
if the Company so notifies the Trustee three months in advance and if no
Default occurs during the three-month period.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
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If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in principal amount of the Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with TIA { 310(a) or { 310(b) or
with Section 7.10, any Securityholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Holders of Registered Securities. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, subject to the lien provided for in Section 7.07.
SECTION 7.09. Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act
shall be the successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be
eligible to act as Trustee under TIA {{ 310(a)(1) and 310(a)(2). The
Trustee shall have a combined capital and surplus of at least $100,000,000
as set forth in its most recent published annual report of condition. If
the Trustee has or shall acquire any "conflicting interest" within the
meaning of TIA { 310(b), the Trustee and the Company shall comply with the
provisions of TIA { 310(b). If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Trustee
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
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SECTION 7.11. Preferential Collection of Claims Against
Company.
The Trustee shall comply with TIA { 311(a), excluding any
creditor relationship listed in TIA { 311(b). A Trustee who has resigned
or been removed shall be subject to TIA { 311(a) to the extent indicated
therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance.
Securities of a series may be defeased in accordance with their
terms and, unless the Bond Resolution otherwise provides, in accordance
with this Article.
The Company at any time may terminate as to a series all of its
obligations under this Indenture, the Securities of the series and any
related coupons ("legal defeasance option"). The Company at any time may
terminate as to a series certain of its obligations; provided that none of
its obligations in the Sections set forth in the immediately succeeding
sentence may be terminated ("covenant defeasance option"). However, in the
case of the legal defeasance option, the Company's obligations in Sections
2.03, 2.04, 2.05, 2.06, 2.07, 2.08, 7.07 and 7.08 shall survive until the
Securities of the series are no longer outstanding; thereafter the
Company's obligations in Section 7.07 shall survive.
The Company may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option. If
the Company exercises its legal defeasance option, a series may not be
accelerated because of an Event of Default.
The Trustee upon request shall acknowledge in writing the
discharge of those obligations that the Company terminates.
SECTION 8.02. Conditions to Defeasance.
The Company may exercise as to a series its legal defeasance
option or its covenant defeasance option if:
(1) the Company irrevocably deposits in trust with the
Trustee or another trustee money or U.S. Government
Obligations;
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(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants
expressing their opinion that the payments of principal
and interest when due on the deposited U.S. Government
Obligations without reinvestment plus any deposited money
without investment will provide cash at such times and in
such amounts as will be sufficient to pay principal and
interest when due on all the Securities of the series to
maturity or redemption, as the case may be;
(3) immediately after the deposit no Default exists;
(4) the deposit does not constitute a default under any other
agreement binding on the Company;
(5) the deposit does not cause the Trustee to have a
conflicting interest under TIA { 310(a) or { 310(b) as to
another series;
(6) the Company delivers to the Trustee an Opinion of Counsel
to the effect that Holders of the series will not
recognize income, gain or loss for Federal income tax
purposes as a result of the defeasance;
(7) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit
does not constitute, or is qualified as, a regulated
investment company under the Investment Company Act of
1940; and
(8) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.01(4) or
(5) occurs that is continuing at the end of the period.
Before or after a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future
date in accordance with Article 3.
"U.S. Government Obligations" means direct obligations of the
United States which have the full faith and credit of the United States
pledged for payment and which are not callable at the issuer's option, or
certificates representing an ownership interest in such obligations.
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SECTION 8.03. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government
Obligations deposited with it pursuant to Section 8.02. It shall apply the
deposited money and the money from U.S. Government Obligations through the
Paying Agent and in accordance with this Indenture to the payment of
principal and interest on Securities of the defeased series.
SECTION 8.04. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to
the Company upon request any excess money or securities held by them at any
time.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest
that remains unclaimed for two years. After payment to the Company,
Securityholders entitled to the money must look to the Company for payment
as unsecured general creditors unless an abandoned property law designates
another person.
ARTICLE NINE
CONVERSION
SECTION 9.01. Conversion Privilege.
If the Bond Resolution establishing the terms of a series of
securities so provides Securities of any series may be convertible into or
for Common Stock (a "Conversion Right"). The Bond Resolution may
establish, among other things, the Conversion Rate, provisions for
adjustments to the Conversion Rate and limitations upon exercise of the
Conversion Right.
A Holder may convert a portion of a Security if the portion is
$1,000 or an integral multiples thereof. Provisions of this Indenture that
apply to the conversion of the aggregate principal amount a Security also
apply to conversion of a portion of it.
SECTION 9.02. Conversion Procedure.
To convert a Security a Holder must satisfy all requirements in
the Securities or the Bond Resolution and
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(i) complete and manually sign the conversion notice (the "Conversion
Notice") provided for in the Bond Resolution or the Security (or complete
and manually sign a facsimile thereof) and deliver such notice to the
Conversion Agent or any other office or agency maintained for such purpose,
(ii) surrender the Security to the Conversion Agent or at such other office
or agency by physical delivery, (iii) if required, furnish appropriate
endorsements and transfer documents, and (iv) if required, pay all transfer
or similar taxes. The date on which such notice shall have been received
by and the Security shall have been so surrendered to the Conversion Agent
is the "Conversion Date." Such Conversion Notice shall be irrevocable and
may not be withdrawn by a Holder for any reason.
The Company will complete settlement of any conversion of
Securities not later than the fifth business day following the Conversion
Date in respect of the cash portion elected to be delivered in lieu of
shares and not later than the seventh business day following the Conversion
Date in respect of the portion to be settled in Common Stock.
If any Security is converted between the record date for the
payment of interest and the next succeeding interest payment date, such
Security must be accompanied by funds equal to the interest payable on such
succeeding interest payment date on the principal amount so converted
(unless such Security shall have been called for redemption during such
period, in which case no such payment shall be required). A Security con-
verted on an interest payment date need not be accompanied by any payment,
and the interest on the principal amount of the Security being converted
will be paid on such interest payment date to the registered holder of such
Security on the immediately preceding record date. Subject to the
aforesaid right of the registered holder to receive interest, no payment or
adjustment will be made on conversion for interest accrued on the converted
Security or for interest, dividends or other distributions payable on any
security issued on conversion.
If a Holder converts more than one Security at the same time,
the number of full shares issuable or cash payable upon the conversion
shall be based on the total principal amount of the Securities converted.
Upon surrender of a Security that is converted in part the
Trustee shall authenticate for the Holder a new Security equal in principal
amount to the unconverted portion of the Security surrendered; except that
if a Global Security is so surrendered the Trustee shall authenticate and
deliver to the Depositary a new Global Security in a denomination equal to
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and in exchange for the unconverted portion of the principal of the Global
Security so surrendered.
If the last day on which a Security may be converted is a Legal
Holiday in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding day that is not
a Legal Holiday.
SECTION 9.03. Taxes on Conversion.
If a Holder of a Security exercises a Conversion Right, the
Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Common Stock upon the conversion. However,
the Holder shall pay any such tax which is due because securities or other
property are issued in a name other than the Holder's name. Nothing herein
shall preclude any income tax or other withholding required by law or
regulations.
SECTION 9.04. Company Determination Final.
Any determination that the Board of Directors must make
pursuant to this Article 9 is conclusive, absent manifest error.
SECTION 9.05. Trustee's and Conversion Agent's Disclaimer.
The Trustee (and each Conversion Agent other than the Company)
has no duty to determine when or if an adjustment under this Article 9 or
any Bond Resolution should be made, how it should be made or calculated or
what it should be. The Trustee (and each Conversion Agent other than the
Company) makes no representation as to the validity or value of any shares
issued upon conversion of Securities. The Trustee (and each Conversion
Agent other than the Company) shall not be responsible for the Company's
failure to comply with this Article 9 or any provision of a Bond Resolution
relating to a Conversion Right.
SECTION 9.06. Company To Provide Conversion Securities.
The Company shall reserve out of its authorized but unissued
Common Stock or its Common Stock held in treasury sufficient shares to
permit the conversion of all of the Securities convertible into Common
Stock.
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All shares of Common Stock of any person which may be issued
upon conversion of the Securities shall be validly issued, fully paid and
non-assessable.
The Company will comply with all securities laws regulating the
offer and delivery of securities upon conversion of Securities.
SECTION 9.07. Cash Settlement Option.
If the Bond Resolution so provides, the Company may elect to
satisfy, in whole or in part, a Conversion Right of Securities convertible
into Common Stock of any person by the delivery of cash. The amount of
cash to be delivered shall be equal to the Market Price (as defined below)
on the last Stock Trading Day preceding the applicable Conversion Date of a
share of Common Stock multiplied by the number of shares of Common Stock in
respect of which the Company elects to deliver cash. If the Company elects
to satisfy, in whole or in part, a Conversion Right by the delivery of
shares of Common Stock, no fractional shares will be delivered. Instead,
the Company will pay cash based on the Market Price for such fractional
share of Common Stock.
The "Market Price" of the Common Stock into which Securities
may be converted pursuant to a Bond Resolution or this Article 9 on any
Stock Trading Day means the weighted average per share sale price for all
sales of the Common Stock on such Stock Trading Day (or, if the information
necessary to calculate such weighted average per share sale price is not
reported, the average of the high and low sale prices, or if no sales are
reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and average ask prices), as
reported in the composite transactions for the New York Stock Exchange, or
if the Common Stock is not listed or admitted to trading on such exchange,
as reported in the composite transactions for the principal national or
regional United States securities exchange on which the Common Stock is
listed or admitted to trading or, if the Common Stock is not listed or
admitted to trading on a United States national or regional securities
exchange, as reported by NASDAQ or by the National Quotation Bureau
Incorporated. In the absence of such quotations, the Company shall be
entitled to determine the Market Price on the basis of such quotations as
it considers appropriate.
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SECTION 9.08. Adjustment in Conversion Rate
for Change in Capital Stock.
If the Company:
(1) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Common Stock into a
smaller number of shares;
(4) pays a dividend or makes a distribution on its Common
Stock in shares of its Capital Stock other than Common Stock; or
(5) issues by reclassification of its Common Stock any shares
of its capital stock,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of
the Company (or, at the Company's option, an equivalent amount in cash)
which he would have owned immediately following such action if he had con-
verted the Security immediately prior to such action.
The adjustment shall become effective immediately after the
record date in the case of a dividend or distribution and immediately after
the effective date in the case of a subdivision, combination or
reclassification.
If after an adjustment a Holder of a Security may, upon
conversion, receive shares of two or more classes of Capital Stock of the
Company, the Board of Directors of the Company shall determine the
allocation of the adjusted Conversion Rate between or among the classes of
Capital Stock. After such allocation, the conversion privilege and the
Conversion Rate of each class of Capital Stock shall thereafter be subject
to adjustment on terms comparable to those applicable to Common Stock in
this Article.
SECTION 9.09. Adjustment in Conversion Rate for
Common Stock Issued Below Market Price.
If the Company issues to all holders of Common Stock rights,
options or warrants to subscribe for or purchase shares
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of Common Stock, or any securities convertible into or exchangeable for
shares of Common Stock, or rights, options or warrants to subscribe for or
purchase such convertible or exchangeable securities at a Price Per Share
(as defined and determined according to the formula given below) lower than
the current Market Price on the date of such issuance, the Conversion Rate
shall be adjusted in accordance with the following formula:
AC = CC x O + N
--------
O + (R)
---
M
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares outstanding immediately prior to such issuance
(which number shall include shares owned or held by or for the
account of the Company).
N = the "Number of Shares," which (i) in the case of rights, options or
warrants to subscribe for or purchase shares of Common Stock or of
securities convertible into or exchangeable for shares of Common
Stock, is the maximum number of shares of Common Stock initially
issuable upon exercise, conversion or exchange thereof; and (ii) in
the case of rights, options or warrants to subscribe for or purchase
convertible or exchangeable securities, is the maximum number of
shares of Common Stock initially issuable upon the conversion or
exchange of the convertible or exchangeable securities issuable upon
the exercise of such rights, options or warrants.
R = the proceeds received or receivable by the Company, which (i) in the
case of rights, options or warrants to subscribe for or purchase
shares of Common Stock or of securities convertible into or
exchangeable for shares of Common Stock, is the aggregate amount
received or receivable by the Company in consideration for the sale
and issuance of such rights, options, warrants or convertible or
exchangeable securities, plus the minimum aggregate amount of
additional consideration, other than the convertible or exchangeable
securities, payable to the Company upon exercise, conversion or
exchange thereof; and (ii) in the case of rights, options or warrants
to subscribe for or purchase convertible or exchangeable securities,
is the aggregate amount received or receivable by the Company in
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consideration for the sale and issuance of such rights, options or
warrants, plus the minimum aggregate consideration payable to the
Company upon the exercise thereof, plus the minimum aggregate amount
of additional consideration, other than the convertible or
exchangeable securities, payable upon the conversion or exchange of
the convertible or exchangeable securities; provided, that in each
case the proceeds received or receivable by the Company shall be
deemed to be the amount of gross cash proceeds without deducting
therefrom any compensation paid or discount allowed in the sale,
underwriting or purchase thereof by underwriters or dealers or others
performing similar services or any expenses incurred in connection
therewith.
M = the current Market Price per share of Common Stock on the date of
issue of the rights, options or warrants to subscribe for or purchase
shares of Common Stock or the securities convertible into or
exchangeable for shares of Common Stock or the rights, options or
warrants to subscribe for or purchase convertible or exchangeable
securities.
"Price Per Share" shall be defined and determined according to the
following formula:
P = R
---
N
where:
P = Price Per Share
and R and N have the meanings assigned above.
If the Company shall issue rights, options, warrants or
convertible or exchangeable securities for a consideration consisting, in
whole or in part, of property other than cash the amount of such
consideration shall be determined in good faith by the Board of Directors
whose determination shall be conclusive and evidenced by a resolution of
the Board of Directors filed with the Trustee.
The adjustment shall be made successively whenever any such
additional rights, options, warrants or convertible or exchangeable
securities are issued, and shall become effective immediately after the
date of issue of such shares, rights, options, warrants or convertible or
exchangeable securities.
To the extent that such rights, options or warrants expire
unexercised or to the extent any convertible or
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exchangeable securities are redeemed by the Company or otherwise cease to
be convertible or exchangeable into shares of Common Stock, the Conversion
Rate shall be readjusted to the Conversion Rate which would then be in
effect had the adjustment made upon the date of issuance of such rights,
options, warrants or convertible or exchangeable securities been made upon
the basis of the issuance of rights, options or warrants to subscribe for
or purchase only the number of shares of Common Stock as to which such
rights, options or warrants were actually exercised and the number of
shares of Common Stock that were actually issued upon the conversion or
exchange of the convertible or exchangeable securities.
SECTION 9.10. Adjustment for Other Distributions.
If the Company distributes to all holders of its Common Stock
any of its assets or debt securities or any rights or warrants to purchase
assets or debt securities of the Company, the Conversion Rate shall be
adjusted in accordance with the following formula:
AC = CC x (O x M)
-----------
(O x M) - F
where:
AC = the adjusted Conversion Rate.
CC = the then current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record date
mentioned below (which number shall include shares owned or held by
or for the account of the Company).
M = the current Market Price per share of Common Stock on the record date
mentioned below.
F = the fair market value on the record date of the assets, securities,
rights or warrants distributed. The Board of Directors of the
Company shall determine the fair market value.
The adjustment shall become effective immediately after the
record date for the determination of stockholders entitled to receive the
distribution.
This Section does not apply to cash dividends or distributions
or to reclassifications or distributions referred to
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in Section 9.08. Also, this Section does not apply to shares issued below
Market Price referred to in Section 9.09.
SECTION 9.11. Voluntary Adjustment.
The Company at any time may increase the Conversion Rate,
temporarily or otherwise, by any amount but in no event shall such
Conversion Rate result in the issuance of Common Stock at a price less than
the par value of the Common Stock at the time such increase is made.
SECTION 9.12. When Adjustment May Be Deferred.
No adjustment in the Conversion Rate need be made unless the
adjustment would require a change of at least 1% in the Conversion Rate.
Any adjustments that are not made due to the immediately preceding sentence
shall be carried forward and taken into account in any subsequent
adjustment; provided, that any adjustment carried forward shall be deferred
not in excess of three years, whereupon any adjustment to the Conversion
Rate will be effected.
All calculations under this Article 9 shall be made to the
nearest cent or to the nearest 1/100th of a share, as the case may be.
SECTION 9.13. When No Adjustment Required.
Except as set forth in Section 9.09, no adjustment in the
Conversion Rate shall be made because the Company issues, in exchange for
cash, property or services, shares of Common Stock, or any securities
convertible into shares of Common Stock, or securities carrying the right
to purchase shares of Common Stock or such convertible securities.
No adjustment in the Conversion Rate need be made for rights to
purchase or the sale of Common Stock pursuant to a Company plan providing
for reinvestment of dividends or interest.
No adjustment in the Conversion Rate need be made for a change
in the par value of the Common Stock.
No adjustment need be made for a transaction referred to in
Section 9.08, 9.09 or 9.10 if Securityholders are to participate in the
transaction on a basis and with notice that the Board of Directors
determines to be fair and appropriate in
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light of the basis and notice on which holders of Common Stock participate
in the transaction.
SECTION 9.14. Notice of Adjustment.
Whenever the Conversion Rate is adjusted, the Company shall
promptly mail to Holders of Securities affected a notice of the adjustment.
The Company shall file with the Trustee an Officers' Certificate or a
certificate from the Company's independent public accountants stating the
facts requiring the adjustment and the manner of computing it. The
certificate shall be conclusive evidence that the adjustment is correct,
absent manifest error.
SECTION 9.15. Notice of Certain Transactions.
If:
(1) the Company proposes to take any action that would
require an adjustment in the Conversion Rate,
(2) the Company proposes to take any action that would
require a supplemental indenture pursuant to Section 9.16, or
(3) there is a proposed liquidation or dissolution of the
Company,
the Company shall mail to Holders of Securities of any affected series a
notice stating the proposed record date for a dividend or distribution or
the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, transfer, lease, liquidation or
dissolution. The Company shall mail the notice at least 15 days before
such date. Failure to mail the notice or any defect in it shall not affect
the validity of the transaction.
SECTION 9.16. Reorganization of the Company.
If the Company is a party to a transaction subject to Section
5.01 or a merger which reclassifies, exchanges, or changes its outstanding
Common Stock, the successor corporation (if other than the Company) shall
enter into a supplemental indenture which shall provide that the Holder of
a Security may convert it into the kind and amount of securities, cash or
other assets which he would have owned immediately after the consolidation,
merger, transfer or lease if he had converted
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the Security immediately before the effective date of the transaction. The
supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in
this Article. The successor company shall mail to Holders of Securities of
any affected series a notice briefly describing the supplemental indenture.
If this Section applies, Sections 9.08, 9.09 and 9.10 do not
apply.
ARTICLE TEN
SUBORDINATION
SECTION 10.01. Agreement to Subordinate.
The Company agrees, and each Securityholder by accepting a
Security agrees, that the indebtedness evidenced by the Securities and the
payment of principal thereof and interest thereon are subordinated in right
of payment, to the extent and in the manner provided in this Article, to
the prior payment in full of all Senior Indebtedness and that the
subordination is for the benefit of the holders of Senior Indebtedness.
Money and securities held in trust pursuant to Article 8 are
not subject to the subordination provisions of this Article 10.
SECTION 10.02. Certain Definitions.
"Representative" means the indenture trustee or other trustee,
agent or representative for an issue of Senior Indebtedness.
"Senior Indebtedness" means the principal of and interest on
(a) any and all indebtedness and obligations of the Company (including
indebtedness of others guaranteed by the Company) other than the
Securities, whether or not contingent and whether outstanding on the date
of this Indenture or thereafter created, incurred or assumed, which (i) are
for money borrowed; (ii) are evidenced by any bond, note, debenture or
similar instrument; (iii) represent the unpaid balance on the purchase
price of any property, business or asset of any kind; (iv) are obligations
of the Company as lessee under any and all leases of property, equipment or
other assets required to be capitalized on the balance sheet of the lessee
under GAAP;
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(v) are reimbursement obligations of the Company with respect to letters of
credit; (vi) are obligations of the Company with respect to interest rate
swap obligations and foreign exchange agreements; or (vii) are obligations
of others secured by a lien to which any of the properties or assets
(including, without limitation, leasehold interests and any other tangible
or intangible property rights) of the Company are subject, whether or not
the obligations secured thereby shall have been assumed by the Company or
shall otherwise be the Company's legal liability and (b) any deferrals,
amendments, renewals, extensions, modifications and refundings of any
indebtedness or obligations of the types referred to above; provided that
Senior Indebtedness shall not include (i) the Securities; (ii) any
indebtedness or obligation of the Company which, by its express terms or
the express terms of the instrument creating or evidencing it, is not
superior in right of payment to the Securities; and (iii) any indebtedness
or obligation incurred by the Company in connection with the purchase of
assets, materials or services in the ordinary course of business and which
constitutes a trade payable.
SECTION 10.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment or distribution of the Company's assets to
creditors of the Company in a liquidation or dissolution of the Company or
in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property, whether voluntary or
involuntary:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full of the principal of and interest to the date
of payment on the Senior Indebtedness before Securityholders shall be
entitled to receive any payment of principal of or interest on
Securities; and
(2) until the Senior Indebtedness is paid in full, any
distribution to which Securityholders would be entitled but for this
Article shall be made to holders of Senior Indebtedness as their
interests may appear, except the Securityholders may receive
securities that are subordinated to Senior Indebtedness to at least
the same extent as the Securities.
SECTION 10.04. Company Not To Make Payments with Respect to
Securities in Certain Circumstances.
Except for payment in or distribution of securities that are
subordinated to Senior Indebtedness to at least the
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same extent as the Securities, the Company shall not make any payment with
respect to the principal of or interest on any of the Securities, or make
any other payment with respect to the purchase or other acquisition of any
of the Securities:
(1) if there shall have occurred a default in the payment of
the principal of or interest on any Senior Indebtedness in an
aggregate principal amount of at least $25,000,000; or
(2) if there shall exist at the time of such payment, or such
payment would create, an event of default (or an event which, with
the giving of notice or the passage of time or both, would become an
event of default) with respect to any Senior Indebtedness in an
aggregate amount of at least $25,000,000 which would permit the
holders (or any specified proportion of such holders) of such Senior
Indebtedness to accelerate the maturity thereof, and if notification
of such default or event of default has been given to the Company by
a holder of such Senior Indebtedness or by a trustee, agent or
Representative for an issue of Senior Indebtedness;
unless and until, in each case, whether described in clause (1) or clause
(2), such default or event of default shall have been cured or waived in
the manner required by the instrument relating to such Senior Indebtedness
or shall otherwise have ceased to exist.
Regardless of anything to the contrary herein, nothing shall
prevent (a) any payment by the Trustee to the Securityholders of amounts
deposited with it pursuant to Article 8 or (b) any payment by the Trustee
or the Paying Agent as permitted by Section 10.11.
SECTION 10.05. Acceleration of Securities.
If payment of the Securities is accelerated because of an Event
of Default, the Company shall promptly notify holders of Senior
Indebtedness of the acceleration.
SECTION 10.06. When Distribution Must Be Paid Over.
In the event that the Company shall make any payment to the
Trustee of the principal of or interest on the Securities at a time when
such payment is prohibited by Section 10.03 or 10.04, such payment shall be
held by the Trustee, in trust for the benefit of, and shall be paid
forthwith over and
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delivered to, the Representatives or the trustee under the indenture or
other agreement (if any) pursuant to which Senior Indebtedness may have
been issued, as their respective interests may appear, for application to
the payment of all Senior Indebtedness remaining unpaid to the extent
necessary to pay all Senior Indebtedness in full in accordance with its
terms, after giving effect to any concurrent payment or distribution to or
for the holders of Senior Indebtedness.
If a distribution is made to Securityholders that because of
this Article should not have been made to them, the Securityholders who
receive the distribution shall hold it in trust for holders of Senior
Indebtedness and pay it over to them as their interests may appear.
SECTION 10.07. Notice by Company.
The Company shall promptly notify the Trustee and any Paying
Agent in writing of any facts known to the Company that would cause a
payment of principal of or interest on Securities to violate this Article.
SECTION 10.08. Subrogation.
After all Senior Indebtedness is paid in full and until the
Securities are paid in full, Securityholders shall be subrogated to the
rights of holders of Senior Indebtedness to receive distributions
applicable to Senior Indebtedness to the extent that distributions
otherwise payable to the Securityholders have been applied to the payment
of Senior Indebtedness. A distribution made under this Article to holders
of Senior Indebtedness which otherwise would have been made to
Securityholders is not, as between the Company and Securityholders, a
payment by the Company on Senior Indebtedness.
SECTION 10.09. Subordination May Not Be Impaired by Company.
No right of any holder of Senior Indebtedness to enforce the
subordination of the indebtedness evidenced by the Securities shall be
impaired by any act or failure to act by the Company or by its failure to
comply with this Indenture.
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SECTION 10.10. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to
holders of Senior Indebtedness, the distribution may be made and the notice
given to their Representative.
SECTION 10.11. Rights of Trustee and Paying Agent.
The Trustee or Paying Agent may continue to make payments on
the Securities until a Trust Officer of the Trustee receives written notice
of facts that would cause a payment of principal of or interest on the
Securities to violate this Article. Only the Company, a Representative or
a holder of an issue of Senior Indebtedness that has no Representative may
give the notice.
The Trustee shall be entitled to rely on the delivery to it of
a written notice by a person representing himself to be a holder of Senior
Indebtedness (or a Representative on behalf of such holder) to establish
that such notice has been given by a holder of Senior Indebtedness or a
Representative on behalf of any such holder. In the event that the Trustee
determines in good faith that further evidence is required with respect to
the right of any person who is a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article, the
Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such person, the extent to which such person is entitled to participate in
such payment or distribution and 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 or until such time
as the Trustee shall be otherwise satisfied as to the right of such person
to receive such payment.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Indebtedness and shall not be liable to any such
holder if it shall mistakenly pay over or distribute to Securityholders or
the Company or any other person money or assets to which any holders of
Senior Indebtedness shall be entitled by virtue of this Article or
otherwise.
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SECTION 10.12. Officers' Certificate.
If there occurs an event referred to in Section 10.03 or 10.04,
the Company shall promptly give to a Trust Officer of the Trustee an
Officers' Certificate (on which the Trustee may conclusively rely)
identifying all holders of Senior Indebtedness or their Representatives and
the principal amount of Senior Indebtedness then outstanding held by each
such holder and stating the reasons why such Officers' Certificate is being
delivered to the Trustee.
SECTION 10.13. Obligation of Company Unconditional.
Nothing contained in this Article 10 or elsewhere in this
Indenture or in any Bond Resolution is intended to or shall impair, as
between the Company, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of and interest on the Securities as and when the
same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders of the
Securities and creditors of the Company other than the holders of the
Senior Indebtedness, nor shall anything herein or therein 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 10 of the holders of
Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any
distribution of assets of the Company referred to in this Article 10, the
Trustee, subject to the provisions of Section 7.02, and the Holders of the
Securities shall be entitled to rely upon any order or decree by any court
of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or a certificate of
the liquidating trustee or agent or other person making any distribution to
the Trustee or the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or dis-
tributed thereon and all other facts pertinent thereto or to this Article
10. Nothing contained in this Article 10 or elsewhere in this Indenture or
in any Security is intended to or shall affect the obligation of the
Company to make, or prevent the Company from making, at any time except
during the pendency of any dissolution, winding up, liquidation or
reorganization proceeding, and except during the continuance of any default
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specified in Section 10.04 (not cured or waived), payments at any time of
the principal or of interest on the Securities.
ARTICLE ELEVEN
AMENDMENTS
SECTION 11.01. Without Consent of Holders.
The Company and the Trustee may amend this Indenture, the Securities
or any coupons without the consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide that specific provisions of this Indenture
shall not apply to a series not previously issued;
(4) to create a series and establish its terms;
(5) to provide for a separate Trustee for one or more series;
or
(6) to make any change that does not materially adversely
affect the rights of any Securityholder.
SECTION 11.02. With Consent of Holders.
Unless the Bond Resolution otherwise provides, the Company and
the Trustee may amend this Indenture, the Securities and any coupons with
the written consent of the Holders of a majority in principal amount of the
Securities of all series affected by the amendment voting as one class.
However, without the consent of each Securityholder affected, an amendment
under this Section may not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment;
(2) reduce the interest on or change the time for payment of
interest on any Security;
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(3) change the fixed maturity of any Security;
(4) reduce the principal of any non-Discounted Security or
reduce the amount of principal of any Discounted Security
that would be due upon an acceleration thereof;
(5) change the currency in which principal or interest on a
Security is payable; or
(6) make any change in Section 6.04 or 11.02, except to
increase the amount of Securities whose Holders must
consent to an amendment or waiver or to provide that
other provisions of this Indenture cannot be amended or
waived without the consent of each Securityholder
affected thereby.
An amendment of a provision included solely for the benefit of
one or more series does not affect Securityholders of any other series.
Securityholders need not consent to the exact text of a
proposed amendment or waiver; it is sufficient if they consent to the
substance thereof.
SECTION 11.03. Compliance with Trust Indenture Act.
Every amendment pursuant to Section 11.01 or 11.02 shall be set
forth in a supplemental indenture that complies with the TIA as then in
effect.
If a provision of the TIA requires or permits a provision of
this Indenture and the TIA provision is amended, then the Indenture
provision shall be automatically amended to like effect.
SECTION 11.04. Effect of Consents.
An amendment or waiver becomes effective in accordance with its
terms and thereafter binds every Securityholder entitled to consent to it.
A consent to an amendment or waiver by a Holder of a Security
is a continuing consent by the Holder and every subsequent Holder of a
Security that evidences the same debt as the consenting Holder's Security.
Any Holder or subsequent Holder may revoke the consent as to his Security
if the Trustee
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receives notice of the revocation before the amendment or waiver becomes
effective.
The Company may fix a record date for the determination of
Holders of Registered Securities entitled to give a consent. The record
date shall not be less than 10 nor more than 60 days prior to the first
written solicitation of Securityholders.
SECTION 11.05. Notation on or Exchange of Securities.
The Company or the Trustee may place an appropriate notation
about an amendment or waiver on any Security thereafter authenticated. The
Company may issue in exchange for affected Securities new Securities that
reflect the amendment or waiver.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act.
The provisions of TIA {{ 310 through 317 that impose duties on
any person (including the provisions automatically deemed included herein
unless expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 12.02. Notices.
Any notice by one party to another is duly given if in writing
and delivered in person, sent by facsimile transmission confirmed by mail
or mailed by first-class mail to the other's address shown below:
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Company: Engelhard Corporation
101 Wood Avenue
Iselin, New Jersey 08830
Attention: General Counsel
Trustee:
Attention: Corporate Trust Department
A party, by notice to the other parties, may designate
additional or different addresses for subsequent notices.
Any notice mailed to a Securityholder shall be mailed to his
address shown on the register kept by the Transfer Agent or on the Bearer
Securities List referred to in Section 2.06. Failure to mail a notice to a
Securityholder or any defect in a notice mailed to a Securityholder shall
not affect the sufficiency of the notice mailed to other Securityholders or
the sufficiency of any published notice.
If a notice is mailed in the manner provided above within the
time prescribed, it is duly given, whether or not the addressee receives
it.
If the Company mails a notice to Securityholders, it shall mail
a copy to the Trustee and each Agent at the same time.
If in the Company's opinion it is impractical to mail a notice
required to be mailed or to publish a notice required to be published, the
Company may give such substitute notice as the Trustee approves. Failure
to publish a notice as required or any defect in it shall not affect the
sufficiency of any mailed notice.
All notices shall be in the English language, except that any
published notice may be in an official language of the country of
publication.
A "notice" includes any communication required by this
Indenture.
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SECTION 12.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA { 312(b) with
other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar and any other
person shall have the protection of TIA { 312(c).
SECTION 12.04. Certificate and Opinion as to Conditions
Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall if so requested
furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been
complied with.
SECTION 12.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are
based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with;
and
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(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied
with.
SECTION 12.06. Rules by Company and Agents.
The Company may make reasonable rules for action by or a
meeting of Securityholders. An Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 12.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions are not required to be open. If a payment date is a
Legal Holiday at a place of payment, unless the Bond Resolution otherwise
provides, payment may be made at that place on the next succeeding day that
is not a Legal Holiday, and no interest shall accrue for the intervening
period.
SECTION 12.08. No Recourse Against Others.
All liability described in the Securities of any director,
officer, employee or stockholder, as such, of the Company is waived and
released.
SECTION 12.09. Duplicate Originals.
The parties may sign any number of copies of this Indenture.
One signed copy is enough to prove this Indenture.
SECTION 12.10. Governing Law.
The laws of the State of New York shall govern this Indenture,
the Securities and any coupons, unless federal law governs without regard
to principles of conflicts of laws.
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SIGNATURES
Dated: , 1995 ENGELHARD CORPORATION
By
Name:
Title:
Dated: , 1995 [ ]
as Trustee
By
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EXHIBIT A
A Form of Registered Security
No. $
ENGELHARD CORPORATION
[Title of Security]
Engelhard Corporation
promises to pay to
or registered assigns
the principal sum of Dollars on ,
Interest Payment Dates:
Record Dates:
Dated:
[ ]
ENGELHARD CORPORATION
Transfer Agent and Paying Agent
(SEAL)
Authenticated: Name:
Title:
Registrar, by
Authorized Signatory Name:
Title:
A-1
<PAGE>
ENGELHARD CORPORATION
[Title of Security]
1. Interest.1
Engelhard Corporation ("Company"), a Delaware corporation,
promises to pay interest on the principal amount of this
Security at the rate per annum shown above. The Company will
pay interest semiannually on and
of each year commencing , 19__.
Interest on the Securities will accrue from the most recent
date to which interest has been paid or, if no interest has
been paid, from , 19__. Interest will be computed on
the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.2
The Company will pay interest on the Securities to the persons
who are registered holders of Securities at the close of
business on the record date for the next interest payment date,
except as otherwise provided in the Indenture. Holders must
surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money
of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company
may pay principal and interest by check payable in such money.
It may mail an interest check to a holder's registered address.
3. Bond Agents.
Initially, [ ], will act as Paying
Agent, Transfer Agent and Registrar. The Company may change
any Paying Agent, Transfer Agent or Registrar without notice.
The Company or any Affiliate may act in any such capacity.
Subject to certain conditions, the Company may change the
Trustee.
4. Indenture.
The Company issued the securities of this series ("Securities")
under an Indenture dated as of , 1995 ("Indenture")
between the Company and [ ] ("Trustee"). The
terms of the Securities include those stated in the Indenture
and
A-2
<PAGE>
in the Bond Resolution creating the Securities and those made
part of the Indenture by the Trust Indenture Act of 1939 (15
U.S. Code {{ 77aaa-77bbbb). Securityholders are referred to
the Indenture, the Bond Resolution and the Act for a statement
of such terms.
5. Optional Redemption.3
On or after , the Company may redeem all the
Securities at any time or some of them from time to time at the
following redemption prices (expressed in percentages of
principal amount), plus accrued interest to the redemption
date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter at 100%.
6. Mandatory Redemption.4
The Company will redeem $ principal amount of
Securities on and on each
thereafter through at a redemption price of
100% of principal amount, plus accrued interest to the
redemption date.5 The Company may reduce the principal amount
of Securities to be redeemed pursuant to this paragraph by sub-
tracting 100% of the principal amount (excluding premium) of
any Securities (i) that the Company has acquired or that the
Company has redeemed other than pursuant to this paragraph and
(ii) that the Company has delivered to the Registrar for
cancellation. The Company may subtract the same Security only
once.
7. Additional Optional Redemption.6
In addition to redemptions pursuant to the above paragraph(s),
the Company may redeem not more than $ principal
amount of Securities on and on each
thereafter through at a redemption price of 100%
of principal amount, plus accrued interest to the redemption
date.
A-3
<PAGE>
8. Notice of Redemption.7
Notice of redemption will be mailed at least 20 days but not
more than 60 days before the redemption date to each holder of
Securities to be redeemed at his registered address.
9. Conversion.8
A Holder of a Security may convert it into Common Stock of the
Company or cash, or a combination thereof, at the Company's
option, at any time before the close of business on
___________, or, if the Security is called for redemption, the
Holder may convert it at any time before the close of business
on the redemption date. The initial Conversion Rate is
____________ (or an equivalent amount in cash) per $1,000
principal amount of the Securities, subject to adjustment as
provided in Article 9 of the Indenture.9 The Company will
deliver a check in lieu of any fractional share. On conversion
no payment or adjustment for interest accrued on the Securities
will be made nor for dividends on the Common Stock issued on
conversion. If any Security is converted between the record
date for the payment of interest and the next succeeding
interest payment date, such Security must be accompanied by
funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such
Security shall have been called for redemption, in which case
no such payment shall be required). A Security converted on an
interest payment date need not be accompanied by any payment,
and the interest on the principal amount of the Security being
converted will be paid on such interest payment date to the
registered holder of such Security on the immediately preceding
record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender
the Security to a Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the
Registrar or Conversion Agent and (4) pay any transfer or
similar tax if required. A Holder may convert a portion of a
Security if the portion is $1,000 or an integral multiple of
$1,000.
A-4
<PAGE>
10. Subordination.10
The Securities are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the
prior payment in full of all Senior Indebtedness (as defined in
the Indenture). Each Holder by accepting a Security agrees to
such subordination and authorizes the Trustee to give it
effect.
11. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons in
denominations of $1,000[11] and whole multiples of $1,000. The
transfer of Securities may be registered and Securities may be
exchanged as provided in the Indenture. The Transfer Agent may
require a holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and
fees required by law or the Indenture. The Transfer Agent need
not exchange or register the transfer of any Security or
portion of a Security selected for redemption. Also, it need
not exchange or register the transfer of any Securities for a
period of 15 days before a selection of Securities to be
redeemed.
12. Persons Deemed Owners.
The registered holder of a Security may be treated as its owner
for all purposes.
13. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities
may be amended with the consent of the holders of a majority in
principal amount of the securities of all series affected by
the amendment.12 Subject to certain exceptions, a default on a
series may be waived with the consent of the holders of a
majority in principal amount of the series.
Without the consent of any Securityholder, the
Indenture or the Securities may be amended, among other things,
to cure any ambiguity, omission, defect or inconsistency; to
provide for assumption of Company obligations to
Securityholders; or to make any change that does not materially
adversely affect the rights of any Securityholder.
A-5
<PAGE>
14. Restrictive Covenants.13
The Securities are unsecured general obligations of the Company
limited to $ principal amount.
15. Successors.
When a successor assumes all the obligations of the Company
under the Securities and the Indenture, the Company will be
released from those obligations.
16. Defeasance Prior to Redemption or Maturity.14
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee
money or U.S. Government Obligations for the payment of
principal and interest on the Securities to redemption or
maturity. U.S. Government Obligations are securities backed by
the full faith and credit of the United States of America or
certificates representing an ownership interest in such
Obligations.
17. Defaults and Remedies.
An Event of Default with respect to this series of Securities
is: default for 30 days in payment of interest on the
Securities of this series; default in payment of principal on
them [If the Security is subject to redemption insert ",upon
redemption or otherwise"; and, if the Security is entitled to a
sinking fund also add "or in the making of any sinking fund
payment"]; failure by the Company for 60 days after notice to
it to comply with any of its other covenants, conditions or
agreements in the Indenture or the Securities of this series; a
default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a
default with respect to Securities of any series other than
this series) or under 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 by the
Company (including the Indenture), whether such indebtedness
now exists or shall hereafter be created, which default shall
involve an amount in excess of $25,000,000 and shall constitute
a failure to pay such indebtedness when due and payable after
the
A-6
<PAGE>
expiration of any applicable grace period with respect thereto
and shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebted-
ness having been discharged, or such acceleration having been
rescinded or annulled within a period of 30 days after notice
as provided in the Indenture; and certain events of bankruptcy
or insolvency. [Add other events of default if applicable].
If an Event of Default with respect to this series of the
Securities occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the outstanding
Securities of this series may declare all the Securities of
this series to be due and payable immediately. [If the
Security is a Discounted Security, add "The amount due and
payable 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 and interest, if any, on the Discounted Securities of
this series shall be terminated.] Holders of Securities of
this series may not enforce the Indenture or the Securities of
this series except as provided in the Indenture. The Trustee
may require indemnity satisfactory to it before it enforces the
Indenture or the Securities of this series. Subject to certain
limitations, Holders of a majority in principal amount of the
outstanding Securities of this series may direct the Trustee in
its exercise of any trust or power with respect to this series
of the Securities. The Trustee may withhold from Holders of
Securities of this series notice of any continuing default
(except a default in payment of principal or interest) if it
determines in good faith that withholding notice is in their
interests. The Company is required to file periodic reports
with the Trustee as to the absence of default.
18. Trustee Dealings with Company.
The Trustee, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with those
persons, as if it were not Trustee.
A-7
<PAGE>
19. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or
their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
20. Authentication.
This Security shall not be valid until authenticated by a
manual signature of the Registrar.
21. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (=tenants in
common), TEN ENT (=tenants by the entireties), JT TEN (=joint
tenants with right of survivorship and not as tenants in
common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to
Minors Act).
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture and the Bond Resolution,
which contains the text of this Security in larger type. Requests may be
made to: Secretary, Engelhard Corporation, 101 Wood Avenue, Iselin, New
Jersey 08830.
A-8
<PAGE>
EXHIBIT B
A Form of Bearer Security
No. $
ENGELHARD CORPORATION
[Title of Security]
Engelhard Corporation
promises to pay to bearer
the principal sum of Dollars on ,
Interest Payment Dates:
Dated:
[ ]
ENGELHARD CORPORATION
Transfer Agent
(SEAL)
Authenticated: Name:
Title:
[ ]
Registrar, by
Authorized Signature Name:
Title:
B-1
<PAGE>
ENGELHARD CORPORATION
[Title of Security]
1. Interest.1
Engelhard Corporation ("Company"), a Delaware corporation,
promises to pay to bearer interest on the principal amount of
this Security at the rate per annum shown above. The Company
will pay interest semiannually on and
of each year commencing , 19 . Interest on the
Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from
, 19 . Interest will be computed on the basis of a
360-day year of twelve 30-day months.
2. Method of Payment.2
Holders must surrender Securities and any coupons to a Paying
Agent to collect principal and interest payments. The Company
will pay principal and interest in money of the United States
that at the time of payment is legal tender for payment of
public and private debts. The Company may pay principal and
interest by check payable in such money.
3. Bond Agents.
Initially, [ ], will act as
Transfer Agent, Paying Agent and Registrar. The Company may
change any Paying Agent, Transfer Agent or Registrar without
notice. The Company or any Affiliate may act in any such
capacity. Subject to certain conditions, the Company may
change the Trustee.
4. Indenture.
The Company issued the securities of this series ("Securities")
under an Indenture dated as of , 1995 ("Indenture")
between the Company and [ ] ("Trustee").
The terms of the Securities include those stated in the
Indenture and the Bond Resolution and those made part of the
Indenture by the Trust Indenture Act of 1939 (15 U.S. Code
{{ 77aaa-77bbbb). Securityholders are referred to
B-2
<PAGE>
the Indenture, the Bond Resolution and the Act for a statement
of such terms.
5. Optional Redemption.3
On or after , the Company may redeem all the
Securities at any time or some of them from time to time at the
following redemption prices (expressed in percentages of
principal amount), plus accrued interest to the redemption
date.
If redeemed during the 12-month period beginning,
Year Percentage Year Percentage
and thereafter at 100%.
6. Mandatory Redemption.4
The Company will redeem $ principal amount of
Securities on and on each
thereafter through at a redemption price of 100% of
principal amount, plus accrued interest to the redemption
date.5 The Company may reduce the principal amount of
Securities to be redeemed pursuant to this paragraph by
subtracting 100% of the principal amount (excluding premium) of
any Securities (i) that the Company has acquired or that the
Company has redeemed other than pursuant to this paragraph and
(ii) that the Company has delivered to the Registrar for
cancellation. The Company may subtract the same Security only
once.
7. Additional Optional Redemption.6
In addition to redemptions pursuant to the above paragraph(s),
the Company may redeem not more than $ principal amount
of Securities on and on each thereafter
through at a redemption price of 100% of principal
amount, plus accrued interest to the redemption date.
8. Notice of Redemption.7
Notice of redemption will be published once in an Authorized
Newspaper in the City of New York and if the Securities are
listed on any stock exchange located outside the United States
and such stock exchange so requires, in any other required city
B-3
<PAGE>
outside the United States at least 20 days but not more than
60 days before the redemption date. Notice of redemption also
will be mailed to holders who have filed their names and
addresses with the Transfer Agent within the two preceding
years. A holder of Securities may miss important notices if he
fails to maintain his name and address with the Transfer Agent.
9. Conversion.8
A Holder of a Security may convert it into Common Stock of the
Company or cash, or a combination thereof, at the Company's
option, at any time before the close of business on
___________, or, if the Security is called for redemption, the
Holder may convert it at any time before the close of business
on the redemption date. The initial Conversion Rate is
____________ (or an equivalent amount in cash) per $1,000
principal amount of the Securities, subject to adjustment as
provided in Article 9 of the Indenture.9 The Company will
deliver a check in lieu of any fractional share. On conversion
no payment or adjustment for interest accrued on the Securities
will be made nor for dividends on the Common Stock issued on
conversion. If any Security is converted between the record
date for the payment of interest and the next succeeding
interest payment date, such Security must be accompanied by
funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted (unless such
Security shall have been called for redemption, in which case
no such payment shall be required). A Security converted on an
interest payment date need not be accompanied by any payment,
and the interest on the principal amount of the Security being
converted will be paid on such interest payment date to the
registered holder of such Security on the immediately preceding
record date.
To convert a Security a Holder must (1) complete and sign the
conversion notice on the back of the Security, (2) surrender
the Security to a Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the
Registrar or Conversion Agent and (4) pay any transfer or
similar tax if required. A Holder may convert a portion of a
Security if the portion is $1,000 or an integral multiple of
$1,000.
B-4
<PAGE>
10. Subordination.10
The Securities are subordinated in right of payment, in the
manner and to the extent set forth in the Indenture, to the
prior payment in full of all Senior Indebtedness (as defined in
the Indenture). Each Holder by accepting a Security agrees to
such subordination and authorizes the Trustee to give it
effect.
11. Denominations, Transfer, Exchange.
The Securities are in bearer form with coupons in denominations
of $5,000[11] and whole multiples of $5,000. The Securities may
be transferred by delivery and exchanged as provided in the
Indenture. Upon an exchange, the Transfer Agent may require a
holder, among other things, to furnish appropriate documents
and to pay any taxes and fees required by law or the Indenture.
The Transfer Agent need not exchange any Security or portion of
a Security selected for redemption. Also, it need not exchange
any Securities for a period of 15 days before a selection of
Securities to be redeemed.
12. Persons Deemed Owners.
The holder of a Security or coupon may be treated as its owner
for all purposes.
13. Amendments and Waivers.
Subject to certain exceptions, the Indenture or the Securities
may be amended with the consent of the holders of a majority in
principal amount of the securities of all series affected by
the amendment.12 Subject to certain exceptions, a default on a
series may be waived with the consent of the holders of a
majority in principal amount of the series.
Without the consent of any Securityholder, the Indenture or the
Securities may be amended, among other things, to cure any
ambiguity, omission, defect or inconsistency; to provide for
assumption of Company obligations to Securityholders; or to
make any change that does not materially adversely affect the
rights of any Securityholder.
B-5
<PAGE>
14. Restrictive Covenants.13
The Securities are unsecured general obligations of the Company
limited to $ principal amount.
15. Successors.
When a successor assumes all the obligations of the Company
under the Securities, any coupons and the Indenture, the
Company will be released from those obligations.
16. Defeasance Prior to Redemption or Maturity.14
Subject to certain conditions, the Company at any time may
terminate some or all of its obligations under the Securities,
any coupons and the Indenture if the Company deposits with the
Trustee money or U.S. Government Obligations for the payment of
principal and interest on the Securities to redemption or
maturity. U.S. Government Obligations are securities backed by
the full faith and credit of the United States of America or
certificates representing an ownership interest in such
Obligations.
17. Defaults and Remedies.
An Event of Default with respect to this series of Securities
is: default for 30 days in payment of interest on the
Securities of this series; default in payment of principal on
them [If the Security is subject to redemption insert ",upon
redemption or otherwise"; and, if the Security is entitled to a
sinking fund also add "or in the making of any sinking fund
payment"]; failure by the Company for 60 days after notice to
it to comply with any of its other covenants, conditions or
agreements in the Indenture or the Securities of this series; a
default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company (including a
default with respect to Securities of any series other than
this series) or under 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 by the
Company (including the Indenture), whether such indebtedness
now exists or shall hereafter be created, which default shall
involve an amount in excess of $25,000,000 and shall constitute
a failure to pay such indebtedness when due and payable after
the
B-6
<PAGE>
expiration of any applicable grace period with respect thereto
and shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would
otherwise have become due and payable, without such indebted-
ness having been discharged, or such acceleration having been
rescinded or annulled within a period of 30 days after notice
as provided in the Indenture; and certain events of bankruptcy
or insolvency. [Add other events of default if applicable].
If an Event of Default with respect to this series of the
Securities occurs and is continuing, the Trustee or the Holders
of at least 25% in principal amount of the outstanding
Securities of this series may declare all the Securities of
this series to be due and payable immediately. [If the
Security is a Discounted Security, add "The amount due and
payable 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 and interest, if any, on the Discounted Securities of
this series shall be terminated.] Holders of Securities of
this series may not enforce the Indenture or the Securities of
this series except as provided in the Indenture. The Trustee
may require indemnity satisfactory to it before it enforces the
Indenture or the Securities of this series. Subject to certain
limitations, Holders of a majority in principal amount of the
outstanding Securities of this series may direct the Trustee in
its exercise of any trust or power with respect to this series
of the Securities. The Trustee may withhold from Holders of
Securities of this series notice of any continuing default
(except a default in payment of principal or interest) if it
determines in good faith that withholding notice is in their
interests. The Company is required to file periodic reports
with the Trustee as to the absence of default.
18. Trustee Dealings with Company.
The Trustee, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Company or its Affiliates, and may otherwise deal with those
persons, as if it were not Trustee.
B-7
<PAGE>
19. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim
based on, in respect of or by reason of such obligations or
their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
20. Authentication.
This Security shall not be valid until authenticated by a
manual signature of the Registrar.
21. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (=tenants in
common), TEN ENT (=tenants by the entireties), JT TEN (=joint
tenants with right of survivorship and not as tenants in
common), CUST (=custodian), and U/G/M/A (=Uniform Gifts to
Minors Act).
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture and the Bond Resolution,
which contains the text of this Security in larger type. Requests may be
made to: Secretary, Engelhard Corporation, 101 Wood Avenue, Iselin, New
Jersey 08830.
B-8
<PAGE>
[FACE OF COUPON]
...............
[$]............
Due............
ENGELHARD CORPORATION
[Title of Security]
Unless the Security attached to this coupon has been called for
redemption, Engelhard Corporation ("Company") will pay to bearer, upon
surrender, the amount shown hereon when due. This coupon may be
surrendered for payment to any Paying Agent listed on the back of this
coupon unless the Company has replaced such Agent. Payment may be made by
check. This coupon represents six months' interest.
ENGELHARD CORPORATION
By
[REVERSE OF COUPON]
PAYING AGENTS
<PAGE>
NOTES TO EXHIBITS A AND B
1 If the Security is not to bear interest at a fixed rate per annum,
insert a description of the manner in which the rate of interest is
to be determined. If the Security is not to bear interest prior to
maturity, so state.
2 If the method or currency of payment is different, insert a statement
thereof.
3 If applicable.
4 If applicable.
5 If the Security is a Discounted Security, insert amount to be
redeemed or method of calculating such amount.
6 If applicable. Also insert, if applicable, provisions for repayment
of Securities at the option of the Securityholder.
7 If applicable.
8 If applicable.
9 If additional or different adjustment provisions apply so specify.
10 If additional or different subordination terms apply, insert a brief
summary thereof.
11 If applicable. Insert additional or different denominations.
12 If different terms apply, insert a brief summary thereof.
13 If applicable. If additional or different covenants apply, insert a
brief summary thereof.
14 If applicable. If different defeasance terms apply, insert a brief
summary thereof.
Note: U.S. tax law may require certain legends on Discounted and Bearer
Securities.
<PAGE>
EXHIBIT C
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_________________________________________
: :
:_______________________________________:
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company.
The agent may substitute another to act for him.
Date: _______________ Your Signature:
(Sign exactly as your name appears on the other side of
this Security)
C-1
<PAGE>
EXHIBIT D
CONVERSION NOTICE
To convert this Security,
check the box:
_____
/ /
To convert only part of this
Security, state the amount
(must be in integral multiples
of $1,000);
$_____________________________
If you want the securities
delivered upon conversion made
out in another person's name,
fill in the form below:
(Insert other person's Social
Security or Tax I.D. Number)
______________________________
______________________________
______________________________
______________________________
(Print or type other
person's name, address
and zip code)
Date: _________ Signature(s): ______________________________
______________________________
(Sign exactly as your name(s)
appear(s) on the other side of
this Security)
D-1
<PAGE>
Signature(s) guaranteed by: ________________________________
(All signatures must be
guaranteed by a member of a
national securities exchange or
of the National Association of
Securities Dealers, Inc. or by a
commercial bank or trust company
located in the United States)
D-2
<PAGE>
EXHIBIT 5.1
CAHILL GORDON & REINDEL
EIGHTY PINE STREET
NEW YORK, N.Y. 10005
April 10, 1995
(212) 701-3000
Engelhard Corporation
101 Wood Avenue
Iselin, New Jersey 08830-0770
Dear Sirs:
We have acted as special counsel to Engelhard Corporation, a
Delaware corporation (the "Company"), in connection with the filing of a
Registation Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), relating to (i) up to $200
million aggregate principal amount (or such greater principal amount that may
result from issuances with original issue discount) of the Company's unsecured
senior and subordinated debt securities (the "Debt Securities") that may be
issued from time to time pursuant to indentures (collectively, the
"Indentures") to be substantially in the form filed as Exhibits 4.1 and 4.2 to
the Registration Statement, and (ii) shares of the Company's Common Stock, par
value $1.00 per
<PAGE>
-2-
share (the "Common Stock"), that may be issuable upon conversion of certain
Debt Securities.
We advise you that, in our opinion, the Debt Securities have been
duly authorized and (upon execution and delivery of the applicable Indenture
and execution and authentication of the Debt Securities in accordance with such
Indenture and delivery to the purchasers thereof against payment therefor
pursuant to a sale in the manner described in the Registration Statement,
including the prospectus forming a part thereof (the "Prospectus") and any pro-
spectus supplement thereto) will be legally issued, valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
We also advise you that, in our opinion, shares of Common Stock
issuable upon conversion of any Debt Securities that are convertible into
Common Stock, when issued in accordance with the terms of the applicable
Indenture upon conversion of such Debt Securities (assuming that such issuance
has previously been authorized by all necessary corporate action by the
Company's Board of Directors and otherwise), will be legally issued, fully paid
and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to
the Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the Registration Statement and related Prospectus. Our
consent to such reference does not constitute a consent under Section 7 of the
Act, as in consenting to such reference we have not certified any part of the
Registration Statement and do not otherwise come within the categories of
persons whose consent is required under said Section 7 or under the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
Cahill Gordon & Reindel
EXHIBIT 12.1
<TABLE>
<CAPTION>
ENGELHARD CORPORATION
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Thousands)
_______________Year Ended December 31,_______________
1994 1993 1992 1991 1990
<S> <C> <C> <C> <C> <C>
Income from continuing
operations before
provision for income taxes $157,306 $(4,709) $133,858 $117,569 $93,720
Add/(deduct)
Portion of rents representative
of the interest factor 4,800 4,500 4,000 4,200 5,000
Interest on indebtedness 21,954 13,696 16,231 21,658 25,804
Equity dividends 3,800 2,600 3,100 3,200 900
Equity earnings (632) (3,443) (7,445) (5,024) (1,698)
Earnings as adjusted 187,228 12,644 149,744 141,603 123,726
Fixed Charges
Portion of rents representative
of interest factor 4,800 4,500 4,000 4,200 5,000
Interest on indebtedness 21,954 13,696 16,231 21,658 25,804
Capitalized Interest 800 2,700 400 110 445
$27,554 $20,896 $20,631 $25,968 $31,249
Ratio of Earnings to Fixed Charges 6.79 __(a) 7.26 5.45 3.96
___________________
<F>
(a) For fiscal 1993, earnings were insufficient to cover fixed charges by approxi-
mately $8.3 million. Earnings in 1993 were negatively impacted by a charge of
approximately $148 million for the realignment and consolidation of businesses
and environmental matters. Without such charge, the ratio of earnings to
fixed charges for fiscal 1993 would have been 7.14.
</TABLE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
registration statement on Form S-3 of our report dated February 2, 1995, on
our audits of the financial statements of Engelhard Corporation. We also
consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
New York, New York
April 7, 1995
EXHIBIT 24.1
ENGELHARD CORPORATION
Power of Attorney
The undersigned hereby appoints Orin R. Smith, William E.
Nettles and Arthur A. Dornbusch, II, and each of them individually, the
true and lawful attorneys of the undersigned, with power to act on behalf
of the undersigned, to execute in his or her name, place and stead in his
or her capacity as an officer or director or both of Engelhard Corporation,
a Delaware corporation (the "Company"), a Registation Statement on Form S-3
("Registration Statement"), under the Securities Act of 1933, as amended
(the "Act"), covering up to $200,000,000 of debt and equity securities of
the Company to be issued from time to time pursuant to Rule 415 under the
Act, and any amendments to such Registration Statement (including
post-effective amendments), and all instruments necessary or incidental in
connection therewith, and to file or cause to be filed such Registration
Statement and amendments thereto (including post-effective amendments) and
other instruments with the Securities and Exchange Commission. Each of
said attorneys shall have full power and authority to do and perform, in
the name and on behalf of the undersigned, every act whatsoever necessary
or desirable to be done in the premises, as fully to all intents and
purposes as the undersigned could do in person. The undersigned hereby
ratifies and approves the actions of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on the 6th day of April, 1995.
Linda G. Alvarado
---------------------------
Linda G. Alvarado
<PAGE>
ENGELHARD CORPORATION
Power of Attorney
The undersigned hereby appoints Orin R. Smith, William E.
Nettles and Arthur A. Dornbusch, II, and each of them individually, the
true and lawful attorneys of the undersigned, with power to act on behalf
of the undersigned, to execute in his or her name, place and stead in his
or her capacity as an officer or director or both of Engelhard Corporation,
a Delaware corporation (the "Company"), a Registation Statement on Form S-3
("Registration Statement"), under the Securities Act of 1933, as amended
(the "Act"), covering up to $200,000,000 of debt and equity securities of
the Company to be issued from time to time pursuant to Rule 415 under the
Act, and any amendments to such Registration Statement (including
post-effective amendments), and all instruments necessary or incidental in
connection therewith, and to file or cause to be filed such Registration
Statement and amendments thereto (including post-effective amendments) and
other instruments with the Securities and Exchange Commission. Each of
said attorneys shall have full power and authority to do and perform, in
the name and on behalf of the undersigned, every act whatsoever necessary
or desirable to be done in the premises, as fully to all intents and
purposes as the undersigned could do in person. The undersigned hereby
ratifies and approves the actions of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on the 6th day of April, 1995.
Marion H. Antonini
----------------------------
Marion H. Antonini
<PAGE>
ENGELHARD CORPORATION
Power of Attorney
The undersigned hereby appoints Orin R. Smith, William E.
Nettles and Arthur A. Dornbusch, II, and each of them individually, the
true and lawful attorneys of the undersigned, with power to act on behalf
of the undersigned, to execute in his or her name, place and stead in his
or her capacity as an officer or director or both of Engelhard Corporation,
a Delaware corporation (the "Company"), a Registation Statement on Form S-3
("Registration Statement"), under the Securities Act of 1933, as amended
(the "Act"), covering up to $200,000,000 of debt and equity securities of
the Company to be issued from time to time pursuant to Rule 415 under the
Act, and any amendments to such Registration Statement (including
post-effective amendments), and all instruments necessary or incidental in
connection therewith, and to file or cause to be filed such Registration
Statement and amendments thereto (including post-effective amendments) and
other instruments with the Securities and Exchange Commission. Each of
said attorneys shall have full power and authority to do and perform, in
the name and on behalf of the undersigned, every act whatsoever necessary
or desirable to be done in the premises, as fully to all intents and
purposes as the undersigned could do in person. The undersigned hereby
ratifies and approves the actions of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on the 6th day of April, 1995.
R.L. Guyett
----------------------------
Robert L. Guyett
<PAGE>
ENGELHARD CORPORATION
Power of Attorney
The undersigned hereby appoints Orin R. Smith, William E.
Nettles and Arthur A. Dornbusch, II, and each of them individually, the
true and lawful attorneys of the undersigned, with power to act on behalf
of the undersigned, to execute in his or her name, place and stead in his
or her capacity as an officer or director or both of Engelhard Corporation,
a Delaware corporation (the "Company"), a Registation Statement on Form S-3
("Registration Statement"), under the Securities Act of 1933, as amended
(the "Act"), covering up to $200,000,000 of debt and equity securities of
the Company to be issued from time to time pursuant to Rule 415 under the
Act, and any amendments to such Registration Statement (including
post-effective amendments), and all instruments necessary or incidental in
connection therewith, and to file or cause to be filed such Registration
Statement and amendments thereto (including post-effective amendments) and
other instruments with the Securities and Exchange Commission. Each of
said attorneys shall have full power and authority to do and perform, in
the name and on behalf of the undersigned, every act whatsoever necessary
or desirable to be done in the premises, as fully to all intents and
purposes as the undersigned could do in person. The undersigned hereby
ratifies and approves the actions of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on the 6th day of April, 1995.
L. Donald LaTorre
----------------------------
L. Donald LaTorre
<PAGE>
ENGELHARD CORPORATION
Power of Attorney
The undersigned hereby appoints Orin R. Smith, William E.
Nettles and Arthur A. Dornbusch, II, and each of them individually, the
true and lawful attorneys of the undersigned, with power to act on behalf
of the undersigned, to execute in his or her name, place and stead in his
or her capacity as an officer or director or both of Engelhard Corporation,
a Delaware corporation (the "Company"), a Registation Statement on Form S-3
("Registration Statement"), under the Securities Act of 1933, as amended
(the "Act"), covering up to $200,000,000 of debt and equity securities of
the Company to be issued from time to time pursuant to Rule 415 under the
Act, and any amendments to such Registration Statement (including
post-effective amendments), and all instruments necessary or incidental in
connection therewith, and to file or cause to be filed such Registration
Statement and amendments thereto (including post-effective amendments) and
other instruments with the Securities and Exchange Commission. Each of
said attorneys shall have full power and authority to do and perform, in
the name and on behalf of the undersigned, every act whatsoever necessary
or desirable to be done in the premises, as fully to all intents and
purposes as the undersigned could do in person. The undersigned hereby
ratifies and approves the actions of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on the 6th day of April, 1995.
Norma T. Pace
--------------------------
Norma T. Pace
<PAGE>
ENGELHARD CORPORATION
Power of Attorney
The undersigned hereby appoints Orin R. Smith, William E.
Nettles and Arthur A. Dornbusch, II, and each of them individually, the
true and lawful attorneys of the undersigned, with power to act on behalf
of the undersigned, to execute in his or her name, place and stead in his
or her capacity as an officer or director or both of Engelhard Corporation,
a Delaware corporation (the "Company"), a Registation Statement on Form S-3
("Registration Statement"), under the Securities Act of 1933, as amended
(the "Act"), covering up to $200,000,000 of debt and equity securities of
the Company to be issued from time to time pursuant to Rule 415 under the
Act, and any amendments to such Registration Statement (including
post-effective amendments), and all instruments necessary or incidental in
connection therewith, and to file or cause to be filed such Registration
Statement and amendments thereto (including post-effective amendments) and
other instruments with the Securities and Exchange Commission. Each of
said attorneys shall have full power and authority to do and perform, in
the name and on behalf of the undersigned, every act whatsoever necessary
or desirable to be done in the premises, as fully to all intents and
purposes as the undersigned could do in person. The undersigned hereby
ratifies and approves the actions of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on the 6th day of April, 1995.
James V. Napier
----------------------------
James V. Napier
<PAGE>
ENGELHARD CORPORATION
Power of Attorney
The undersigned hereby appoints Orin R. Smith, William E.
Nettles and Arthur A. Dornbusch, II, and each of them individually, the
true and lawful attorneys of the undersigned, with power to act on behalf
of the undersigned, to execute in his or her name, place and stead in his
or her capacity as an officer or director or both of Engelhard Corporation,
a Delaware corporation (the "Company"), a Registation Statement on Form S-3
("Registration Statement"), under the Securities Act of 1933, as amended
(the "Act"), covering up to $200,000,000 of debt and equity securities of
the Company to be issued from time to time pursuant to Rule 415 under the
Act, and any amendments to such Registration Statement (including
post-effective amendments), and all instruments necessary or incidental in
connection therewith, and to file or cause to be filed such Registration
Statement and amendments thereto (including post-effective amendments) and
other instruments with the Securities and Exchange Commission. Each of
said attorneys shall have full power and authority to do and perform, in
the name and on behalf of the undersigned, every act whatsoever necessary
or desirable to be done in the premises, as fully to all intents and
purposes as the undersigned could do in person. The undersigned hereby
ratifies and approves the actions of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on the 6th day of April, 1995.
Reuben F. Richards
----------------------------
Reuben F. Richards
<PAGE>
ENGELHARD CORPORATION
Power of Attorney
The undersigned hereby appoints Orin R. Smith, William E.
Nettles and Arthur A. Dornbusch, II, and each of them individually, the
true and lawful attorneys of the undersigned, with power to act on behalf
of the undersigned, to execute in his or her name, place and stead in his
or her capacity as an officer or director or both of Engelhard Corporation,
a Delaware corporation (the "Company"), a Registation Statement on Form S-3
("Registration Statement"), under the Securities Act of 1933, as amended
(the "Act"), covering up to $200,000,000 of debt and equity securities of
the Company to be issued from time to time pursuant to Rule 415 under the
Act, and any amendments to such Registration Statement (including
post-effective amendments), and all instruments necessary or incidental in
connection therewith, and to file or cause to be filed such Registration
Statement and amendments thereto (including post-effective amendments) and
other instruments with the Securities and Exchange Commission. Each of
said attorneys shall have full power and authority to do and perform, in
the name and on behalf of the undersigned, every act whatsoever necessary
or desirable to be done in the premises, as fully to all intents and
purposes as the undersigned could do in person. The undersigned hereby
ratifies and approves the actions of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on the 6th day of April, 1995.
Henry R. Slack
---------------------------
Henry R. Slack
<PAGE>
ENGELHARD CORPORATION
Power of Attorney
The undersigned hereby appoints Orin R. Smith, William E.
Nettles and Arthur A. Dornbusch, II, and each of them individually, the
true and lawful attorneys of the undersigned, with power to act on behalf
of the undersigned, to execute in his or her name, place and stead in his
or her capacity as an officer or director or both of Engelhard Corporation,
a Delaware corporation (the "Company"), a Registation Statement on Form S-3
("Registration Statement"), under the Securities Act of 1933, as amended
(the "Act"), covering up to $200,000,000 of debt and equity securities of
the Company to be issued from time to time pursuant to Rule 415 under the
Act, and any amendments to such Registration Statement (including
post-effective amendments), and all instruments necessary or incidental in
connection therewith, and to file or cause to be filed such Registration
Statement and amendments thereto (including post-effective amendments) and
other instruments with the Securities and Exchange Commission. Each of
said attorneys shall have full power and authority to do and perform, in
the name and on behalf of the undersigned, every act whatsoever necessary
or desirable to be done in the premises, as fully to all intents and
purposes as the undersigned could do in person. The undersigned hereby
ratifies and approves the actions of said attorneys and each of them.
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney on the 6th day of April, 1995.
Douglas G. Watson
----------------------------
Douglas G. Watson
EXHIBIT 25.1
Securities Act of 1933 File No. _________
(If application to determine eligibility of
trustee for delayed offering pursuant to
Section 305 (b) (2))
_____________________________________________________________________________
_____________________________________________________________________________
_____________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)_________________
_____________
THE CHASE MANHATTAN BANK
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 Chase Manhattan Plaza, New York, New York
(Address of principal executive offices)
10081
(Zip Code)
_______________
ENGELHARD CORPORATION
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
22-1586002
(I.R.S. Employer Identification No.)
101 Wood Avenue
Iselin, New Jersey
(Address principal executive offices)
08830
(Zip Code)
_________________________________
Debt Securities
(Title of the indenture securities)
_____________________________________________________________________________
_____________________________________________________________________________
<PAGE>
Item 1 General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority
to which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The Trustee is not the obligor, nor is the Trustee directly
or indirectly controlling, controlled by, or under common
control with the obligor. (See Note on Page 2.)
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement of
eligibility.
*1. -- A copy of the articles of association of the trustee as now
in effect. (See Exhibit T-1 (Item 12), Registration No.
33-55626.)
*2. -- Copies of the respective authorizations of The Chase
Manhattan Bank (National Association) and The Chase Bank of
New York (National Association) to commence business and a
copy of approval of merger of said corporations, all of
which documents are still in effect. (See Exhibit T-1 (Item
12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank
(National Association) to exercise corporate trust powers,
both of which documents are still in effect. (See Exhibit
T-1 (Item 12), Registration No. 2-67437.)
4. -- A copy of the existing by-laws of the trustee.
*5. -- A copy of each indenture referred to in Item 4, if the
obligor is in default. (Not applicable.)
*6. -- The consents of United States institutional trustees
required by Section 321(b) ofthe Act. (See Exhibit T-1,
(Item 12), Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
___________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to
which there have been no amendments or changes.
___________________
1.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 7th day of April, 1995.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
Sheik Wiltshire
____________________________________
By: Sheik Wiltshire,
Corporate Trust Officer
2.
<PAGE>
Exhibit 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
The Chase Manhattan Bank, N.A.
of New York in the State of New York, at the close of business on December
31, 1994, published in response to call made by Comptroller of the
Currency, under title 12, United States Code, Section 161.
Charter Number 2370 Comptroller of the Currency
Statement of Resources and Liabilities Northeastern District
<TABLE>
<CAPTION>
Thousands
ASSETS of Dollars
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin $ 4,517,179
Interest-bearing balances 7,001,642
Held to maturity securities 1,593,325
Available-for-sale securities 4,669,255
Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and of its Edge
and Agreement subsidiaries, and in IBFs:
Federal funds sold 3,651,850
Securities purchased under agreements to resell 0
Loans and lease financing receivable:
Loans and leases, net of unearned income $ 50,879,818
LESS: Allowance for loan and lease losses 1,073,196
LESS: Allocated transfer risk reserve 0
-------------
Loans and leases, net of unearned income, allowance, and reserve 49,806,622
Assets held in trading accounts 13,112,807
Premises and fixed assets (including capitalized leases) 1,758,500
Other real estate owned 480,982
Investments in unconsolidated subsidiaries and associated companies 55,722
Customers' liability to this bank on acceptances outstanding 611,839
Intangible assets 787,948
Other assets 6,145,452
----------
TOTAL ASSETS $ 94,193,123
===========
LIABILITIES
Deposits:
In domestic offices $ 29,536,028
Noninterest-bearing $ 11,648,377
Interest-bearing 17,887,651
------------
In foreign offices, Edge and Agreement subsidiaries, and IBFs 36,020,612
Noninterest-bearing $ 2,320,293
Interest-bearing 33,700,319
------------
Federal funds purchased and securities sold under agreements to repurchase in
domestic offices of the bank and of its Edge and Agreement subsidiaries, and
in IBFs:
Federal funds purchased 1,014,936
Securities sold under agreements to repurchase 678,033
Demand notes issued to the U.S. Treasury 300,000
Trading liabilities 8,066,477
Other borrowed money:
With original maturity of one year or less 2,940,252
With original maturity of more than one year 427,525
Mortgage indebtedness and obligations under capitalized leases 40,550
Bank's liability on acceptances executed and outstanding 616,531
Subordinated notes and debentures 2,360,000
Other liabilities 5,195,890
----------
TOTAL LIABILITIES 87,196,834
==========
Limited-life preferred stock and related surplus 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock 915,576
Surplus 4,656,010
Undivided profits and capital reserves 1,478,713
Net unrealized holding gains (losses) on available-for-sale securities (64,959)
Cumulative foreign currency translation adjustments 10,949
---------
TOTAL EQUITY CAPITAL 6,996,289
---------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL $ 94,193,123
===========
</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and
to the best of our knowledge and belief has been prepared in conformance with
the instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Richard J. Boyle Directors
(Signed) Donald H. Trautlein
