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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C., 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 2, 1996
SEAGATE TECHNOLOGY, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 0-10630 94-2612933
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(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
920 DISC DRIVE, SCOTTS VALLEY, CALIFORNIA 95066
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (408) 438-6550
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On February 2, 1996, Athena Acquisition Corporation ("Merger Sub"), a
wholly-owned subsidiary of Seagate Technology, Inc. ("Seagate") merged (the
"Merger") with and into Conner Peripherals, Inc. ("Conner") after the Merger had
been approved that morning at a special meeting of Conner's stockholders and the
issuance of additional shares of Seagate's Common Stock pursuant to the Merger
had been approved that morning at a special meeting of Seagate's stockholders.
As a result, Conner became a wholly-owned subsidiary of Seagate. Conner
designs, builds and sells information storage solutions products, including a
large selection of hard disc drives, tape drives, storage management software
and integrated storage systems for a wide range of computer applications.
The Merger occurred pursuant to the terms of an Agreement and Plan of
Reorganization dated as of October 3, 1995, as amended by Amendment No. 1
thereto dated as of December 18, 1995, entered into by and between Seagate,
Merger Sub and Conner (the "Reorganization Agreement") and a related Agreement
of Merger between Merger Sub and Conner dated as of December 22, 1995 (the
"Merger Agreement"). The Merger has been accounted for as a pooling of
interests. As a result of the Merger, each outstanding share of Conner Common
Stock was converted into the right to receive 0.442 of a share of Seagate
Common Stock. Conner stockholders who otherwise would be entitled to fractional
shares of Seagate Common Stock will receive cash in lieu thereof. In addition,
as a result of the Merger, each outstanding option to purchase Conner Common
Stock (a "Conner Option") was assumed by Seagate and converted into an option to
acquire such number of shares of Seagate Common Stock as the holder would have
been entitled to receive had such holder exercised such Conner Option in full
immediately prior to the effective time of the Merger, at an exercise price per
share equal to the exercise price per share of Conner Common Stock under such
Conner Option immediately prior to the effective time of the Merger divided by
0.442. Agreement on the exchange ratio was achieved as a result of direct
negotiations between representatives of Seagate and representatives of Conner
and was subsequently approved by each company's Board of Directors. Based upon
the number of shares of Conner Common Stock outstanding at December 15, 1995, an
aggregate of approximately 24,202,875 shares of Seagate Common Stock will be
issued in connection with the Merger. Based upon the number of Conner Options
outstanding at December 15, 1995, approximately 2,848,683 additional shares of
Seagate Common Stock are reserved for issuance to holders of Conner Options in
connection with Seagate's assumption of such Conner Options.
Upon consummation of the Merger, Conner and Seagate entered into
supplemental indentures with The First National Bank of Boston as trustee
concerning Conner's $230,000,000 principal amount 6 3/4% Convertible
Subordinated Debentures due 2001 (the "6 3/4% Debentures") and Conner's
$345,000,000 principal amount 6 1/2% Convertible Subordinated Debentures due
2002 (the "6 1/2% Debentures" and collectively with the 6 3/4% Debentures, the
"Conner Debentures"). The supplemental indentures provide that each holder of a
Conner Debenture is entitled to convert such Conner Debenture into the number of
shares of Seagate Common Stock which such holder would have been entitled to
receive had such Conner Debenture been converted into Conner Common Stock
immediately prior to consummation of the Merger. In addition, pursuant to the
supplemental
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indentures, Seagate became a guarantor for the Conner Debentures. As of
September 30, 1995, $209,412,000 in aggregate principal amount of the 6 3/4%
Debentures and $309,486,000 in aggregate principal amount of the 6 1/2%
Debentures were issued and outstanding. Upon consummation of the Merger, the
Conner Debentures are convertible into an aggregate of approximately 8,891,428
shares of Seagate Common Stock.
In connection with the acquisition of Conner, pursuant to an Agreement and
Plan of Reorganization (the "Arcada Agreement") dated as of December 21, 1995,
by and between Seagate, Conner, Arcada Holdings, Inc. ("Arcada") and certain
holders of Arcada capital stock and options to purchase Arcada capital stock
(the "Arcada Minority Stockholders"), Seagate has agreed to acquire all of the
capital stock of Arcada held by the Arcada Minority Stockholders. In addition,
all outstanding options to purchase Arcada capital stock will be assumed by
Seagate and converted into options to purchase Seagate Common Stock. Pursuant
to the Arcada Agreement, Seagate will issue an aggregate of an approximately
1,260,007 shares of Seagate Common Stock to the Arcada Minority Stockholders and
an additional approximately 924,193 shares of Seagate Common Stock will be
reserved for issuance to the Arcada Minority Stockholders in connection with
Seagate's assumption of options to purchase Arcada capital stock. The Arcada
transaction is contingent upon normal closing conditions, including approval by
the stockholders of Arcada at a meeting scheduled to be held on February 16,
1996.
The Merger is more fully described in Seagate's Registration Statement on
Form S-4 (File No. 333-00025) (the "Registration Statement"). The
Reorganization Agreement and Merger Agreement were included as Appendix A and
Appendix B, respectively, to the prospectus (the "Prospectus") contained in the
Registration Statement, and are incorporated herein by reference as Exhibits 2.1
and 2.2 hereto.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
a. Financial Statements of Business Acquired.
The following financial statements filed with the Securities and
Exchange Commission by Conner (File No. 1-10639) are incorporated herein by
reference:
i. The Consolidated Balance Sheets of Conner as of December 31, 1994
and 1993, the related Consolidated Statements of Operations, Cash
Flows and Stockholders' Equity for the years ended December 31,
1994, 1993 and 1992, and the related Notes to Consolidated
Financial Statements contained in Item 8 of the Annual Report on
Form 10-K of Conner for the year ended December 31, 1994, as
amended by the Form 10-K/A filed on November 15, 1995 (but no
other portions of such Form 10-K, as amended).
ii. The Condensed Consolidated Balance Sheets of Conner as of
September 30, 1995 and December 31, 1994, the Condensed
Consolidated Statements of Operations
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and Cash Flows for the nine months ended September 30, 1995 and
1994, and the related Notes to Condensed Consolidated Financial
Statements (unaudited) contained in the Quarterly Report on
Form 10-Q of Conner for the quarter ended September 30, 1995 (but
no other portions of such Form 10-Q).
b. Pro Forma Financial Information.
The following unaudited pro forma combined condensed financial
statements of Seagate and related notes to unaudited pro forma combined
condensed financial statements are incorporated by reference from the section
captioned "Unaudited Pro Forma Combined Condensed Financial Statements" on
pages 72 through 79 of the Prospectus in the Registration Statement.
Pro Forma Combined Condensed Statements of Operations for the years
ended June 30, 1995, 1994 and 1993 and for the three months ended
September 30, 1995 and 1994.
Pro Forma Combined Condensed Balance Sheet as of September 30, 1995.
c. Exhibits.
2.1 Agreement and Plan of Reorganization dated as of October 3, 1995,
as amended by Amendment No. 1 thereto dated as of December 18,
1995, entered into by and among Seagate Technology, Inc., Athena
Acquisition Corporation and Conner Peripherals, Inc.
(incorporated by reference to Appendix A to the Prospectus
contained in Seagate's Registration Statement on Form S-4 (File
No. 333-00025)).
2.2 Agreement of Merger dated as of December 22, 1995, by and between
Athena Acquisition Corporation and Conner Peripherals, Inc.
(incorporated by reference to Appendix B to the Prospectus
contained in Seagate's Registration Statement on Form S-4 (File
No. 333-00025)).
4.1 Second Supplemental Indenture dated as of February 2, 1996 by and
among Conner Peripherals, Inc., Seagate Technology, Inc. as
guarantor and State Street Bank and Trust Company as trustee to
Indenture dated as of March 1, 1991 relating to Conner
Peripherals, Inc. 6 3/4% Convertible Subordinated Debentures due
2001.
4.2 Second Supplemental Indenture dated as of February 2, 1996 by and
among Conner Peripherals, Inc., Seagate Technology, Inc. as
guarantor and State Street Bank and Trust Company as trustee to
Indenture dated as of March 1, 1992 relating to Conner
Peripherals, Inc. 6 1/2% Convertible Subordinated Debentures due
2002.
23.1 Consent of Independent Accountants.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned hereunto duly authorized.
SEAGATE TECHNOLOGY, INC.
Dated: February 12, 1996 By: \S\ DONALD L. WAITE
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Name: Donald L. Waite
Executive Vice President, Chief
Administrative Officer, Chief Financial
Officer and Secretary
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INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
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2.1 Agreement and Plan of Reorganization dated as of October 3, 1995,
as amended by Amendment No. 1 thereto dated as of December 18,
1995, entered into by and among Seagate Technology, Inc., Athena
Acquisition Corporation and Conner Peripherals, Inc.
(incorporated by reference to Appendix A to the Prospectus
contained in Seagate's Registration Statement on Form S-4 (File
No. 333-00025)).
2.2 Agreement of Merger dated as of December 22, 1995, by and between
Athena Acquisition Corporation and Conner Peripherals, Inc.
(incorporated by reference to Appendix B to the Prospectus
contained in Seagate's Registration Statement on Form S-4 (File
No. 333-00025)).
4.1 Second Supplemental Indenture dated as of February 2, 1996 by and
among Conner Peripherals, Inc., Seagate Technology, Inc. as
guarantor and State Street Bank and Trust Company as trustee to
Indenture dated as of March 1, 1991 relating to Conner
Peripherals, Inc. 6 3/4% Convertible Subordinated Debentures due
2001.
4.2 Second Supplemental Indenture dated as of February 2, 1996 by and
among Conner Peripherals, Inc., Seagate Technology, Inc. as
guarantor and State Street Bank and Trust Company as trustee to
Indenture dated as of March 1, 1992 relating to Conner
Peripherals, Inc. 6 1/2% Convertible Subordinated Debentures due
2002.
23.1 Consent of Independent Accountants.
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CONNER PERIPHERALS, INC., Company
SEAGATE TECHNOLOGY, INC., Guarantor
and
STATE STREET BANK AND TRUST COMPANY
Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of February 2, 1996
To
INDENTURE
Dated as of March 1, 1991
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Relating to
Conner Peripherals, Inc.
6 3/4% Convertible Subordinated Debentures
due 2001
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This SECOND SUPPLEMENTAL INDENTURE, dated as of the 2nd day of February,
1996, by and among CONNER PERIPHERALS, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), SEAGATE
TECHNOLOGY, INC., a corporation duly organized and existing under the laws of
the State of Delaware (the "Guarantor"), and STATE STREET BANK AND TRUST
COMPANY, a trust company duly organized and existing under the laws of the
Commonwealth of Massachusetts, as successor in interest to the corporate trust
business of The First National Bank of Boston, a national banking association
organized and existing under the laws of the United States, and Trustee under
the Indenture (as hereinafter defined) (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and The First National Bank of Boston have heretofore
entered into that certain Indenture, dated as of March 1, 1991, providing for
the issuance of 6 3/4% Convertible Subordinated Debentures due 2001 (the
"Debentures"), in the aggregate principal amount not to exceed two hundred
thirty million dollars ($230,000,000), and that certain First Supplemental
Indenture with respect thereto, dated as of September 8, 1992 in connection with
the merger of Conner Peripherals, Inc., a corporation duly organized and
existing under the laws of the State of California with and into the Company
(such indenture as so supplemented, and as further supplemented or amended in
accordance with its terms, herein the "Indenture");
WHEREAS, the Company, Athena Acquisition Corporation, a Delaware
corporation ("Athena"), and the Guarantor have entered into an Agreement and
Plan of Reorganization, dated as of October 3, 1995, as amended (the
"Reorganization Agreement"), pursuant to which Athena will merge (the "Merger")
with and into the Company, and the Company will then become a wholly-owned
subsidiary of Guarantor, and each share of the Company's Common Stock
outstanding immediately prior to the effective time of the Merger (the
"Effective Time") will be converted into the right to receive 0.442 shares of
Common Stock of the Guarantor in accordance with the terms of the Reorganization
Agreement;
WHEREAS, Section 15.06 of the Indenture provides that, "If any of the
following events occur, namely (i) any reclassification or change of outstanding
shares of Common Stock (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), (ii) any consolidation, merger or combination of the Company
with another corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock, or (iii) any sale or
conveyance of the properties and assets of the Company as, or substantially as,
an entirety to any other corporation as a result of which holders of Common
Stock shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock shall
occur, then the Company or the successor or purchasing corporation, as the case
may be, shall execute with Trustee a supplemental indenture (which shall conform
to the Trust Indenture Act of 1939 as in force at the date of execution of such
supplemental
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indenture) providing that each Debenture shall be convertible into the kind and
amount of shares of stock and other securities or property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Debentures immediately prior to such
reclassification, change, consolidation, merger, combination, sale or conveyance
(but after giving effect to any adjustment required by subsection (d) of
Section 15.05 if such reclassification, change, consolidation, merger, sale or
conveyance constitutes a Fundamental Change). Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article;"
WHEREAS, Section 12.01 of the Indenture permits the Company to merge with
another corporation provided certain conditions are satisfied;
WHEREAS, the Guarantor is willing to guarantee, on a subordinated basis as
set forth more fully herein, the payment of the principal of, premium, if any,
and interest on the Debentures in order to preserve the exemption available
under Section 3(a)(9) of the Securities Act of 1933 for the conversion of
Debentures into Common Stock;
WHEREAS, Section 11.01 of the Indenture authorizes the Company, with the
consent of the Trustee, to supplement or amend the Indenture to comply with
Section 15.06 hereof and to correct or supplement provisions of or make other
provisions with respect to matters or questions arising under the Indenture that
do not adversely affect the rights of any Debentureholder;
WHEREAS, the Company and the Guarantor desire to execute a supplemental
indenture that complies with Section 11.01 of the Indenture;
WHEREAS, all acts and things necessary to make this Second Supplemental
Indenture a valid and binding agreement for the purposes and objects herein
expressed have been duly done and performed, and the execution of this Second
Supplemental Indenture have been in all respects, duly authorized;
WHEREAS, the foregoing recitals are made as representations or statements
of fact by the Company or the Guarantor, as applicable, and not by the Trustee;
and
WHEREAS, the Trustee is authorized by Section 11.01 of the Indenture to
execute this Second Supplemental Indenture without the consent of the holders of
the Debentures;
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, the receipt of which is hereby acknowledged, the Company
and the Guarantor hereby covenant and agree with the Trustee, for the equal and
proportionate benefit of the respective holders from time to time of the
Debentures, as follows:
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ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. The [Form of Face of Debenture] in the Indenture is hereby
amended by deleting the reference to "Common Stock of the Company" that appears
in the second paragraph thereof and inserting in lieu thereof the words "Common
Stock."
Section 1.02. The [Form of Reverse of Debenture] in the Indenture is
hereby amended by:
(a) Deleting the reference to "Common Stock of the Company" in the third
paragraph thereof and inserting in lieu thereof the words "Common Stock;"
(b) Deleting the reference to "Company's Common Stock" that appears in the
tenth paragraph thereof and inserting in lieu thereof the words "Common Stock;"
(c) Deleting the reference to "Common Stock of the Company" that appears
in the eleventh paragraph thereof and inserting in lieu thereof the words
"Common Stock;" and
(d) Deleting the fourteenth paragraph and inserting in lieu thereof the
following paragraph:
No recourse for the payment of the principal of or any premium or
interest on this Debenture, or for any claim based hereon or otherwise in
respect hereof, and no recourse under or upon any obligation, covenant or
agreement of the Company or the Guarantor in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the creation of any
indebtedness represented thereby or the guarantee by the Guarantor thereof,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or the Guarantor or of any
respective successor corporation, either directly or through the Company or
the Guarantor or any respective successor corporation, whether by virtue of
any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released; PROVIDED, HOWEVER, that the foregoing shall
not affect or impair the obligations of the Guarantor hereunder.
Section 1.03. The [Form of Conversion Notice] in the Indenture is hereby
amended by deleting the phrase "Common Stock of Conner Peripherals, Inc." and
inserting in lieu thereof the words "Common Stock."
Section 1.04. The terms defined in this Section 1.04 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Second Supplemental Indenture shall have the respective
meanings specified in this Section 1.04. All
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other terms used in this Second Supplemental Indenture which are defined in the
Indenture, the Trust Indenture Act of 1939 or which are by reference therein
defined in the Securities Act of 1933 (except as herein otherwise expressly
provided or unless the context otherwise requires) shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as
in force at the date of the execution of this Second Supplemental Indenture. The
words "herein," "hereof" and "hereunder," and words of similar import, refer to
this Second Supplemental Indenture as a whole and not to any particular Article,
Section or other Subsection. The terms defined in this Article include the
plural as well as the singular.
(a) The definitions of the following words contained in Section 1.01 of
the Indenture, are hereby amended by deleting them in their entirety and
inserting in lieu thereof the following respective definitions:
APPLICABLE PRICE: The term "Applicable Price" means (i) in the event
of a Fundamental Change in which the holders of Common Stock receive only
cash, the amount of cash received by the holder of one share of Common
Stock and (ii) in the event of any other Fundamental Change, the average of
the last reported sales price for the Common Stock (determined as set forth
in subsection (e) of Section 15.05) during the ten Trading Days (as defined
in subsection (3) of Section 15.05) prior to the record date for the
determination of the holders of Common Stock entitled to receive cash,
securities, property or other assets in connection with such Fundamental
Change, or, if there is no such record date, the earlier of the date upon
which the holders of the Common Stock shall have the right to receive such
cash, securities, property or other assets and the consummation of such
Fundamental Change.
COMMON STOCK: The term "Common Stock" shall mean any stock of any
class of Guarantor which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Guarantor and which is not subject to
redemption by the Guarantor. Subject to the provisions of Section 15.06,
however, shares issuable on conversion of Debentures shall include only
shares of the class designated as Common Stock of the Guarantor at the date
of this Second Supplemental Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which
have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding
up of the Guarantor and which are not subject to redemption by the
Guarantor; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such
class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
FUNDAMENTAL CHANGE: The term "Fundamental Change" means any sale or
transfer of all or substantially all of the assets of the Guarantor, or the
occurrence of any transaction or event, in connection with which in excess
of 50% of the Common Stock
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of Guarantor shall be exchanged for, converted into, acquired for or
constitute the right to receive (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise) consideration, less than
90% of which (in terms of value) is common stock which is (or will, upon
consummation of such transaction or event, be) listed on a national
securities exchange or approved for quotation in the National Association
of Securities Dealers, Inc. Automated Quotation System or similar system of
automated dissemination of quotations of securities prices.
REFERENCE MARKET PRICE: The term "Reference Market Price" shall
initially mean $36.20, and in the event of any adjustment to the conversion
price pursuant to subsection (a), (b) or (c) of Section 15.05, the
Reference Market Price shall also be adjusted so that the ratio of the
Reference Market Price to the conversion price after giving effect to any
such adjustment shall always be the same as the ratio of $36.20 to the
conversion price specified in the form of Debenture hereinabove set forth
(without regard to any adjustment thereto).
(b) Section 1.01 of the Indenture is hereby amended to add the following
definitions:
GUARANTOR: The term "Guarantor" shall mean Seagate Technology, Inc.,
a Delaware corporation, and shall include its successors and assigns.
GUARANTOR SENIOR INDEBTEDNESS: The term "Guarantor Senior
Indebtedness" shall mean the principal of, premium, if any, and interest
on, and any other payment due pursuant to the terms of an instrument
(including, without limitation, fees, expenses, collection expenses
(including attorneys' fees), interest yield amounts, post-petition
interest and taxes) creating, securing or evidencing any of the following,
whether outstanding at the date hereof or hereafter incurred or created:
(a) all indebtedness of the Guarantor for money borrowed
(including any indebtedness secured by a mortgage, conditional sales
contract or other lien which is (i) given to secure all or part of the
purchase price of property subject thereto, whether given to the
vendor of such property or to another or (ii) existing on property at
the time of acquisition thereof);
(b) all indebtedness of the Guarantor evidenced by notes,
debentures, bonds or other similar instruments;
(c) all indebtedness or other obligations of the Guarantor with
respect to interest rate swap agreements, cap, floor and collar
agreements, spot and forward contracts, and similar agreements and
arrangements;
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(d) all indebtedness or other obligations of the Guarantor with
respect to letters of credit (including reimbursement obligations with
respect thereto), bank guarantees and bankers' acceptances; and
(e) all lease obligations of the Guarantor which are capitalized
on the books of the Guarantor in accordance with generally accepted
accounting principles;
(f) all indebtedness of others of the kinds described in the
preceding clauses (a), (b), (c) or (d) and all lease obligations of
others of the kind described in the preceding clause (e) assumed by or
guaranteed in any manner by the Guarantor or in effect guaranteed by
the Guarantor through an agreement to purchase, contingent or
otherwise; and
(g) all renewals, extensions or refundings of indebtedness of
the kinds described in any of the preceding clauses (a), (b), (c),
(d), or (f) and all renewals or extensions of lease obligations of the
kinds described in either of the preceding clauses (e) or (f);
unless, in the case of a particular indebtedness, lease, renewal, extension
or refunding, the instrument or lease creating or evidencing the same or
the assumption or guarantee of the same expressly provides that such
indebtedness, lease, renewal, extension or refunding is not superior in
right of payment to or is PARI PASSU with or is subordinated or junior to,
the Guarantor's obligations under the Guaranty. Notwithstanding the
foregoing, Guarantor Senior Indebtedness shall not include: (i)
indebtedness evidenced by the Guaranty or otherwise in respect of the
Debentures; (ii) any indebtedness or lease obligation of any kind of the
Guarantor to any subsidiary of the Guarantor; (iii) indebtedness for trade
payables or constituting the deferred purchase price of assets or services
created or assumed by the Guarantor in the ordinary course of business; and
(iv) indebtedness evidenced by the Guarantor's 5% Convertible Subordinated
Debentures due 2003 and 6 3/4% Convertible Subordinated Debentures due
2012.
GUARANTY: The term "Guaranty" shall mean the guarantee of the
Guarantor pursuant to Section 17.01 hereof.
SUBSIDIARY: The term "subsidiary" of any specified person shall mean
(i) a corporation a majority of whose capital stock with voting power under
ordinary circumstances, to elect directors is at the time directly or
indirectly owned by such person, or (ii) any other person (other than a
corporation) in which such person or such person and a subsidiary or
subsidiaries of such person or a subsidiary or subsidiaries of such person
directly or indirectly, at the date of determination thereof, has at least
majority ownership.
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ARTICLE TWO
CONVERSION OF DEBENTURES
Section 2.01. As a result of the Merger and without any action on the part
of the holder of any Debenture, on and after the Effective Time each $1,000
principal amount of Debentures shall be convertible into shares of Common Stock
of the Guarantor, in accordance with the provisions of Article Fifteen of the
Indenture, at an initial conversion price per share of $65.61, such conversion
price being subject to subsequent adjustment after the Effective Time in
accordance with the provisions of Article Fifteen of the Indenture.
Section 2.02. Section 15.02 of the Indenture is hereby amended by adding
the words "or shall cause the Guarantor to" immediately after the words "the
Company shall" that appear in the first sentence of the second paragraph
thereof.
Section 2.03. Subsections (a) through (d) of Section 15.05 of the
Indenture are hereby amended by deleting all references therein to "the Company"
and inserting in lieu thereof "the Guarantor."
Section 2.04. Section 15.06 of the Indenture is hereby amended by deleting
the first paragraph of such Section in its entirety and inserting in lieu
thereof the following:
SECTION 15.06. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER
OR SALE. If any of the following events occur, namely (i) any
reclassification or change of outstanding shares of Common Stock
(other than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination), (ii) any consolidation, merger or combination of the
Guarantor with another corporation as a result of which holders of
Common Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for
such Common Stock, or (iii) any sale or conveyance of the properties and
assets of the Guarantor as, or substantially as, an entirety to any other
corporation as a result of which holders of Common Stock shall be entitled
to receive stock, securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock shall occur, then the
Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall
conform to the Trust Indenture Act of 1939 as in force at the date of
execution of such supplemental indenture) providing that each Debenture
shall be convertible into the kind and amount of shares of stock and other
securities or property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or
conveyance by a holder of a number of shares of Common Stock issuable upon
conversion of such Debentures immediately prior to such reclassification,
change, consolidation, merger, combination, sale or conveyance
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(but after giving effect to any adjustment required by subsection (d) of
Section 15.05 if such reclassification, change, consolidation, merger, sale
or conveyance constitutes a Fundamental Change). Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Article.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each holder of Debentures, at
his address appearing on the Debenture register provided for in
Section 2.05 of this Indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers,
combinations, sales and conveyances.
Section 2.05. Section 15.08 of the Indenture is hereby amended by deleting
such Section in its entirety and inserting in lieu thereof the following:
SECTION 15.08. RESERVATION OF SHARES; SHARES TO BE FULLY PAID;
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS; LISTING OF COMMON STOCK.
The Company shall use its best efforts to (a) cause the Guarantor to
provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury or (b) otherwise make
available sufficient shares to provide for the conversion of the
Debentures from time to time as such Debentures are presented for
conversion.
Before the taking of any action by the Guarantor which would
cause an adjustment reducing the conversion price below the then par
value, if any, of the shares of Common Stock issuable upon conversion
of the Debentures, the Company shall cause the Guarantor to take all
corporate action which may, in the opinion of the Company's counsel,
be necessary in order that the shares of Common Stock issuable or
otherwise deliverable upon conversion of the Debentures may be validly
and legally issued or delivered (as the case may be) at such adjusted
conversion price.
The Company covenants that all shares of Common Stock which may
be issued or otherwise delivered upon conversion of Debentures will,
when so issued or delivered, be fully paid and nonassessable by
Guarantor and the Company and free from all taxes, liens and charges
with respect to the issue or delivery thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Debentures hereunder require
registration with or approval of any governmental authority under any
Federal or State law before such shares may be validly issued upon
conversion, the
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Company will in good faith and as expeditiously as possible endeavor to
secure such registration or approval, as the case may be.
The Company further covenants that if at any time Common Stock
shall be listed on the New York Stock Exchange or any other national
securities exchange the Company will, or shall cause the Guarantor to,
if permitted by the rules of such exchange, list and keep listed so
long as the Common Stock shall be so listed on such exchange, all
Common Stock issuable upon conversion of the Debentures.
Section 2.06. Section 15.10 of the Indenture is hereby amended by deleting
all references to "the Company" in clauses (a) through (d) thereof and inserting
in lieu thereof the words "the Guarantor."
ARTICLE THREE
CERTAIN COVENANTS OF THE GUARANTOR
Section 3.01. The Guarantor hereby covenants and warrants that
(a) immediately after the Effective Time, no condition or event shall exist
which constitutes or would, after notice or lapse of time or both, constitute a
Default or an Event of Default (both as defined in the Indenture), (b) it has
complied, or has caused the Company to comply, and will comply, or will cause
the Company to comply, with all applicable provisions of Article Fifteen of the
Indenture and (c) it has been authorized by its Board of Directors, pursuant to
Section 11.01 of the Indenture, to execute this Second Supplemental Indenture.
ARTICLE FOUR
GUARANTY OF DEBENTURES
Section 4.01. GUARANTY OF DEBENTURES. The Indenture is hereby amended to
add the following provisions as a new Article Seventeen to be inserted
immediately following Article Sixteen of the Indenture. Article Seventeen shall
apply to the Debentures only.
ARTICLE SEVENTEEN
SUBORDINATED GUARANTY OF DEBENTURES
Section 17.01. GUARANTY. Subject to the provisions of this Article
Seventeen, the Guarantor hereby unconditionally guarantees, on a
subordinated basis as set forth more fully in this Article Seventeen, to
each holder of a Debenture authenticated and
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delivered by the Trustee in accordance with the Indenture (i) the due and
punctual payment of the principal of, premium, if any, and interest
(including interest on other amounts which may accrue after the filing
against the Company of a petition under the United States Bankruptcy Code
(the "Bankruptcy Code"), whether or not the obligation to pay interest on
such amounts shall be enforceable against the Company) on such Debenture,
when and as the same shall become due and payable, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of, premium and interest, if any, on such Debenture, to
the extent lawful, and the due and punctual performance of all other
obligations of the Company to the holders or the Trustee all in accordance
with the terms of such Debenture and of this Indenture, and (ii) in the
case of any extension of time of payment or renewal of any such Debenture
or any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, at stated maturity, by acceleration or otherwise. A demand for
payment under this Article Seventeen shall not be effective prior to 48
hours after a demand upon the Company for full and complete payment of all
amounts due and payable under the Debentures, unless such demand upon the
Company shall be stayed by operation of Section 362 of the Bankruptcy Code
or otherwise. In all other respects, the Guarantor hereby agrees that its
obligations hereunder shall be absolute and unconditional, irrespective of,
and shall be unaffected by, any invalidity, irregularity or
unenforceability of any such Debenture or this Indenture, any failure to
enforce the provisions of any such Debenture or this Indenture, any waiver,
modification or indulgence granted to the Company with respect thereto, by
the holder of such Debenture or the Trustee, or any other circumstances
which may otherwise constitute a legal or equitable discharge of a surety
or guarantor. The Guarantor hereby waives diligence, presentment, filing
of claims with a court in the event of merger or bankruptcy of the Company,
any right to require a proceeding first against the Company, the benefit of
discussion, protest or notice with respect to any such Debenture or the
debt evidenced thereby and all demands whatsoever (except as specified
above), and covenants, that this Guaranty will not be discharged as to any
such Debenture except by payment in full of the principal thereof, premium
if any, and interest thereon. The Guarantor further agrees that, as
between the Guarantor, on the one hand, and the Debentureholder and the
Trustee, on the other hand, (i) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Seven hereof for the
purposes of this Guaranty notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, provided that notice of such acceleration has been given
to the Guarantor by the Trustee, and (ii) in the event of any declarations
of acceleration of such obligations as provided in Article Seven hereof,
such obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantor for the purpose of this Guaranty.
The Guarantor shall be subrogated to all rights of the holders of any
Debentures against the Company in respect of any amounts paid to the
Debentureholder by the Guarantor pursuant to the provisions of this
Guaranty; PROVIDED that the Guarantor
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shall not be entitled to enforce, or to receive any payments arising out of
or based upon, such right of subrogation until the principal of, premium,
if any, and interest on all the Debentures shall have been paid in full and
until all amounts payable under any Senior Indebtedness shall have been
paid in full.
Section 17.02. GUARANTY SUBORDINATED TO GUARANTOR SENIOR
INDEBTEDNESS. The Guarantor covenants and agrees, and the Trustee and each
holder of the Debentures by its acceptance thereof likewise covenants and
agrees, that all payments pursuant to the Guaranty by the Guarantor shall
be subordinated in accordance with the following provisions of this Article
Seventeen to the prior payment in full of all Guarantor Senior
Indebtedness.
Section 17.03. PAYMENTS TO DEBENTUREHOLDERS. No direct or indirect
payment shall be made on the Guaranty by the Guarantor, if there shall have
occurred and be continuing (a) any default in the payment of principal,
premium, if any, or interest on any Guarantor Senior Indebtedness
continuing beyond the period of grace, if any, specified in the instrument
or lease evidencing such Guarantor Senior Indebtedness with respect to
Guarantor Senior Indebtedness, or (b) any other default with respect to any
Guarantor Senior Indebtedness permitting the acceleration thereof and such
default is the subject of a judicial proceeding or the Guarantor receives
notice of such a default from the holders of an aggregate of not less than
$5,000,000 aggregate principal amount of such Guarantor Senior Indebtedness
(PROVIDED, HOWEVER, that in the case of Guarantor Senior Indebtedness
issued pursuant to an indenture such notice may be validly given only by
the trustee under such indenture), unless and until such default or event
of default shall have been cured or waived or shall have ceased to exist.
Upon any acceleration of the principal of the Debentures or any
payment by the Guarantor, or distribution of assets of the Guarantor of any
kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the
Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon
all Guarantor Senior Indebtedness shall first be paid in full in money or
money's worth, or payment thereof provided for in accordance with its
terms, before any payment is made by the Guarantor pursuant to the Guaranty
on account of the principal of (and premium, if any) or interest on the
Debentures; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Guarantor, or distribution of assets of
the Guarantor of any kind or character, whether in cash, property or
securities, to which the holders of the Debentures or the Trustee would be
entitled pursuant to or with respect to the Guaranty except for the
provisions of this Article Seventeen, shall (except as aforesaid) be paid
by the Guarantor or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by
the holders of the Debentures or by the Trustee under this Indenture if
received by them or it, directly to the holders of Guarantor Senior
Indebtedness (pro rata to such holders on the basis of the respective
amounts of
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Guarantor Senior Indebtedness held by such holders, as calculated by the
Guarantor) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing
any Guarantor Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all Guarantor Senior
Indebtedness in full in money or money's worth, after giving effect to any
concurrent payment or distribution to or for the holders of Guarantor
Senior Indebtedness, before any payment or distribution is made to the
holders of the Debentures or to the Trustee pursuant to the Guaranty.
In the event that, notwithstanding the foregoing, any payment by or
distribution of assets of the Guarantor of any kind or character, whether
in cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee or the holders of the Debentures before all
Guarantor Senior Indebtedness is paid in full in money or money's worth, or
provision is made for such payment, and if such fact shall then have been
made known to a Responsible Officer of the Trustee or, as the case may be,
such Debentureholder, then and in such event such payment or distribution
shall be paid over or delivered to the holders of Guarantor Senior
Indebtedness or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments
evidencing any Guarantor Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all
Guarantor Senior Indebtedness remaining unpaid to the extent necessary to
pay all Guarantor Senior Indebtedness in full in money or money's worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Guarantor Senior Indebtedness (but subject to the power of
a court of competent jurisdiction to make other equitable provision, which
shall have been determined by such court to give effect to the rights
conferred in this Article Seventeen upon the Guarantor Senior Indebtedness
and the holders thereof with respect to Debentures or the holders thereof
or the Trustee, by a lawful plan of reorganization or readjustment under
applicable bankruptcy law).
The consolidation of the Guarantor with, or the merger of the
Guarantor into, another corporation or the liquidation or dissolution of
the Guarantor following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Section 17.12 hereof shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 17.03 if such other corporation shall, as a part
of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Section 17.12 hereof.
The holders of Guarantor Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the holders of the
Debentures, without incurring responsibility to the holders of the
Debentures and without impairing or releasing the obligations of the
holders of the Debentures hereunder to the holders of Guarantor Senior
Indebtedness: (i) change the manner, place or terms of payment or
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change or extend the time of payment of, or renew or alter, Guarantor
Senior Indebtedness, or otherwise amend in any manner Guarantor Senior
Indebtedness or any instrument evidencing the same or any agreement under
which Guarantor Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Guarantor Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of Guarantor Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against the Guarantor
and any other Person.
Section 17.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION. Nothing
contained in this Article Seventeen shall prevent (i) the Guarantor, except
under the conditions described in Section 17.03, from making payments on
the Guaranty at any time, or (ii) the application by the Trustee of any
monies deposited with it for the purpose of making such payments pursuant
to the Guaranty, to the holders entitled thereto unless at least three
Business Days prior to the date upon which such payment would otherwise
(except for the prohibitions contained in Section 17.03) become due and
payable, the Trustee shall have received the written notice provided for in
Section 17.07.
Section 17.05. AUTHORIZATION TO TRUSTEE TO TAKE ACTION TO EFFECTUATE
SUBORDINATION. Each holder of Debentures by his acceptance of the Guaranty
authorizes and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate, as between the holders of
Guarantor Senior Indebtedness and the Debentureholders, the subordination
as provided in this Article Seventeen and appoints the Trustee his
attorney-in-fact for any and all such purposes.
Section 17.06. SUBROGATION OF DEBENTURES. Subject to the payment in
full of all Guarantor Senior Indebtedness, the holders of the Debentures
shall be subrogated to the rights of the holders of Guarantor Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Guarantor applicable to the Guarantor Senior Indebtedness
to the extent that amounts otherwise payable to such holders of Debentures
or otherwise distributable in respect of the Debentures to such holders of
Debentures pursuant to or with respect to the Guaranty shall instead have
been paid to the holders of Guarantor Senior Indebtedness pursuant to this
Article Seventeen until all amounts due under the Guaranty shall be paid in
full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Guarantor Senior Indebtedness of any
cash, property or securities to which the holders of the Debentures or the
Trustee would be entitled pursuant to or with respect to the Guaranty
except for the provisions of this Article Seventeen, and no payments over
pursuant to the provisions of this Article Seventeen, to or for the benefit
of the holders of Guarantor Senior Indebtedness by holders of the
Debentures or the Trustee, shall, as between the Guarantor, its creditors
other than holders of Guarantor Senior Indebtedness, and the holders of the
Debentures, be deemed to be a payment by the Guarantor to or on account of
the Guarantor Senior Indebtedness; it being understood that the provisions
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of this Article Seventeen are and are intended solely for the purpose of
defining the relative rights of the holders of the Debentures, on the one
hand, and the holders of the Guarantor Senior Indebtedness, on the other
hand.
Nothing contained in this Article Seventeen or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between
the Guarantor, its creditors other than the holders of Guarantor Senior
Indebtedness, and the holders of the Debentures, the obligation of the
Guarantor, which is absolute and unconditional, to pay to the holders of
the Debentures the principal of (and premium, if any) and interest on the
Debentures as and when the same shall become due and payable in accordance
with the provisions of the Guaranty, or is intended to or shall affect the
relative rights of the holders of the Debentures and creditors of the
Guarantor other than the holders of the Guarantor Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the holder of any
Debenture from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article Seventeen of the holders of Guarantor Senior Indebtedness in
respect of cash, property or securities of the Guarantor received pursuant
to the Guaranty upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Guarantor referred
to in this Article Seventeen, the Trustee, subject to the provisions of
Section 8.01, and the holders of the Debentures shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, delivered to the Trustee or to the holders of the
Debentures, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Guarantor Senior
Indebtedness and other indebtedness of the Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Seventeen.
Section 17.07. NOTICES TO TRUSTEE AND GUARANTOR SENIOR INDEBTEDNESS.
The Guarantor shall give prompt written notice in the form of an Officers'
Certificate to a Responsible Officer of the Trustee of any fact known to
the Guarantor which would prohibit the making of any payment of monies to
or by the Trustee in respect of the Guaranty pursuant to the provisions of
this Article Seventeen. Notwithstanding the provisions of this Article
Seventeen or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee with
respect to any monies deposited with the Trustee by the Guarantor pursuant
to the Guaranty in respect of the Debentures pursuant to the provisions of
this Article Seventeen, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof at the Corporate Trust
Office of the Trustee from the Guarantor or a holder or holders of
Guarantor Senior Indebtedness or from any representative or trustee thereof
(PROVIDED,
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HOWEVER, that in the case of Guarantor Senior Indebtedness issued pursuant
to an indenture such notice may be validly given only by the trustee under
such indenture); and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 8.01 shall be entitled in all
respects to assume that no such facts exist; PROVIDED, HOWEVER, that if the
Trustee shall not have received at least three Business Days prior to the
date upon which by the terms hereof any such monies may become payable for
any purpose (including, without limitation, the payment of the principal of
(or premium, if any) or interest on any Debenture) with respect to such
monies the notice provided for in this Section 17.07, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such monies and to apply the same to the
purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it within three Business
Days prior to such date; PROVIDED, FURTHER, that the immediately preceding
proviso shall not apply to any notice provided for in this Section 17.07 in
the event such notice is received and acknowledged by a Responsible Officer
of the Trustee at least one Business Day prior to such date.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Guarantor
Senior Indebtedness (or a trustee on behalf of such holder) to establish
that such notice has been given by a holder of Guarantor Senior
Indebtedness or a representative of or trustee on behalf of any such holder
or holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Guarantor Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Seventeen, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Guarantor 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 Seventeen, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 17.08. TRUSTEE'S RELATION TO GUARANTOR SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Seventeen in respect of any Guarantor Senior
Indebtedness at any time held by it, to the same extent as any other holder
of Guarantor Senior Indebtedness, and nothing in this Section 17.08 or
elsewhere in this Indenture shall deprive the Trustee of any of its rights
as such holder.
With respect to the holders of Guarantor Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Seventeen, and no
implied covenants or obligations with respect to the holders of Guarantor
Senior Indebtedness shall be read into this Indenture against the Trustee.
The Trustee shall not owe any fiduciary duty to the
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holders of Guarantor Senior Indebtedness, but shall have only such
obligations to such holders as are expressly set forth in this Article
Seventeen.
Section 17.09. NO IMPAIRMENT OF SUBORDINATION. No right of any
present or future holder of any Guarantor Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of the Guarantor
(including by way of an amendment to the provisions of this Article
Seventeen) or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Guarantor with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof which
any such holder may have or otherwise be charged with.
Section 17.10. ARTICLE APPLICABLE TO PAYING AGENTS. In case at any
time any paying agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in
this Article Seventeen (except in Section 17.05) shall in such case (unless
the context otherwise requires) be construed as extending to and including
such paying agent within its meaning as fully for all intents and purpose
as if such paying agent were named in this Article Seventeen in addition to
or in place of the Trustee, PROVIDED, HOWEVER, that this Section shall not
apply to the Guarantor or any affiliate of the Guarantor if it or such
affiliate acts as paying agent.
Section 17.11. EXECUTION OF GUARANTY. To evidence their guaranty to
the Debentureholders specified in Section 17.01, the Guarantor hereby
agrees to execute the Guaranty in substantially the form above recited to
be endorsed on each Debenture authenticated and delivered by the Trustee
after the Effective Time or, in lieu thereof, stamp each such Debenture
with an appropriate notation on such Debenture. The Guarantor hereby
agrees that its Guaranty set forth in Section 17.01 shall remain in full
force and effect notwithstanding any failure to include such endorsement or
notation of such Guaranty on each Debenture. If applicable, the Guaranty
shall be signed on behalf of the Guarantor by its Chairman of the Board,
President or a Vice President, prior to the authentication of the Debenture
on which it is endorsed, and the delivery of such Debenture by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery
of the Guaranty on behalf of the Guarantor. Such signatures upon the
Guaranty may be manual or facsimile signatures of the present, past or any
future such officers and may be imprinted or otherwise reproduced on the
Guaranty, and in case any such officer who shall have signed the Guaranty
shall cease to be such officer before the Debenture on which such Guaranty
is endorsed shall have been authenticated and delivered by the Trustee or
disposed of by the Company, such Debenture nevertheless may be
authenticated and delivered or disposed of as though the person who signed
the Guaranty had not ceased to be such officer of the Guarantor.
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Section 17.12. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Except as set forth in Article Twelve, nothing contained in
this Indenture or in any of the Debentures shall prevent any consolidation
or merger of the Guarantor with or into the Company or shall prevent any
sale or conveyance of the property of the Guarantor as an entirety or
substantially as an entirety, to the Company. Upon any such consolidation,
merger, sale or conveyance, the Guaranty given by the Guarantor shall no
longer have any force or effect.
(b) Nothing contained in this Indenture (including, without
limitation, Section 17.12(a) hereof) or in any of the Debentures shall
prevent any consolidation or merger of the Guarantor with or into a
corporation or corporations other than the Company (whether or not
affiliated with the Guarantor), or successive consolidations or mergers in
which the Guarantor or its successor or successors shall be a party or
parties, or shall prevent any sale or conveyance of the property of the
Guarantor as an entirety or substantially as an entirety, to a corporation
other than the Company (whether or not affiliated with the Guarantor)
authorized to acquire and operate the same; PROVIDED, however, that the
Guarantor hereby covenants and agrees, that, except as provided in Section
17.12(a), upon any such consolidation, merger, sale or conveyance, the
Guaranty endorsed on the Debentures, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to
be performed by the Guarantor, shall be expressly assumed (in the event
that the Guarantor is not the surviving corporation in the merger), by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the corporation formed by such consolidation,
or into which the Guarantor shall have been merged, or by the corporation
which shall have acquired such property. In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the Guaranty
endorsed upon the Debentures and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor corporation shall succeed to and be substituted
for the Guarantor, with the same effect as if it had been named herein as a
Guarantor. Such successor corporation thereupon may cause to be signed the
Guaranty to be endorsed upon all of the Debentures issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee.
Section 17.13. SECURITIES AND EXCHANGE COMMISSION REPORTS. The
Guarantor shall file with the Trustee, within 15 days after it files with
the Securities and Exchange Commission, copies of the quarterly and annual
reports and the information, documents, and other reports (or copies or
such portions of any of the foregoing as the Securities and Exchange
Commission may by rules and regulations prescribe) that it is required to
file with the Securities and Exchange Commission pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended. The Guarantor
shall comply with the other provisions of Section 314(a) of the Trust
Indenture Act of 1939.
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Section 17.14. TERMINATION OF GUARANTY. This Guaranty shall
terminate upon the earlier of the date in which there are no Debentures
outstanding under the Indenture or the provisions of Article Thirteen of
the Indenture have been satisfied in full.
ARTICLE FIVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 5.01. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS. Article Fourteen of the Indenture is hereby amended by deleting in
entirety Article Fourteen and inserting in lieu thereof the following Article
Fourteen:
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. INDENTURE AND DEBENTURES SOLELY CORPORATE OBLIGATIONS.
No recourse for the payment of the principal of or premium, if any, or
interest on the Debenture, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company or the Guarantor in this Indenture or in any
supplemental indenture, or in any Debenture, or because of the creation of
any indebtedness represented thereby or the guarantee by the Guarantor
thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or the Guarantor
or of any respective successor corporation, either directly or through the
Company or the Guarantor or any respective successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this
Indenture and the issue of Debentures; PROVIDED, HOWEVER, that the
foregoing shall not affect or impair the obligations of the Guarantor
hereunder.
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ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. This Second Supplemental Indenture shall become effective at
the Effective Time and shall be automatically null and void if and in the event
that the Merger shall not become effective on or prior to February 15, 1996.
Section 6.02. This Second Supplemental Indenture shall be governed by and
construed in accordance with the Laws of the State of California, without regard
to the principles of conflicts of laws thereof.
Section 6.03. Except as expressly contemplated by Sections 1.02(d) and
5.01 hereof, nothing in this Second Supplemental Indenture, expressed or
implied, shall give or be construed to give any person, firm or corporation,
other than the parties hereto and their successors hereunder, and the holders of
the Debentures or the holders of Guarantor Senior Indebtedness, any legal or
equitable right, remedy or claim under or in respect to this Second Supplemental
Indenture, or under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole benefit of the
parties hereto and their successors hereunder and the holders of the Debentures.
Section 6.04. The Trustee accepts the amendment of the Indenture effected
by this Second Supplemental Indenture and agrees to execute the trust created by
the Indenture as hereby amended, but only upon the terms and conditions set
forth in the Indenture, including the terms and provisions defining and limiting
the liabilities and responsibilities of the Trustee, which terms and provisions
shall in like manner define and limit its liabilities and responsibilities in
the performance of the trust created by the Indenture as hereby amended.
Section 6.05. After the Effective Time, any Debentures authenticated and
delivered in substitution for, or in lieu of, Debentures then outstanding and
all Debentures presented or delivered to the Trustee on and after the Effective
Time for such purpose shall be either restated to give the effect to the Second
Supplemental Indenture or, in lieu thereof, stamped with a notation
substantially as follows:
The principal amount of this Debenture has become
convertible into shares of the Common Stock, par value $0.01
per share, of Seagate Technology, Inc., at an initial
conversion price per share of $65.61, such conversion price
being subject to certain adjustments as set forth in the
Indenture. Reference herein to "Common Stock of the
Company" or the "Company's Common Stock" shall be deemed to
be to the Common Stock of Seagate Technology, Inc. The
payment of principal of, premium, if any, and interest on
the Debentures has been guaranteed by Seagate Technology,
Inc. on a subordinated basis as set forth in the Indenture.
The Indenture, dated as of March 1, 1991, referred to in
this
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<PAGE>
Debenture has been amended by a Second Supplemental Indenture, dated
as of February 2, 1996, to provide for such convertibility and
guarantee. Reference is hereby made to said Second Supplemental
Indenture, copies of which are on file with Conner Peripherals, Inc.
and Seagate Technology, Inc., for a statement of the amendment therein
made.
Nothing contained in this Second Supplemental Indenture shall require the
holder of any Debenture to submit or exchange such Debenture prior to the
Effective Time in order to obtain the benefits of the Guaranty or any other
provisions hereunder.
The Company agrees to provide the Trustee with a stamp or means of
reproducing the above legend on the Debentures without materially obscuring the
text of the Debentures.
Anything herein contained to the contrary notwithstanding, the Trustee
shall not at any time be under any responsibility to acquire or cause any
Debenture now or hereafter outstanding to be presented or delivered to it for
any purpose provided for in this Section 6.05.
Section 6.06. Except as expressly supplemented by this Second Supplemental
Indenture, the Indenture, the Debentures issued thereunder and the charge and
obligation created thereby are in all respects ratified and confirmed and all of
the rights, remedies, terms, conditions, covenants and agreements of the
Indenture and the Debentures issued thereunder shall remain in full force and
effect.
Section 6.07. If any provision of this Second Supplemental Indenture
limits, qualifies or conflicts with (a) another provision of this Second
Supplemental Indenture, or (b) any provision of the Indenture, which is required
to be included by any of the provisions of Section 310 to 317, inclusive, of the
Trust Indenture Act of 1939, such required provision shall control.
Section 6.08. The recitals contained in this Second Supplemental Indenture
shall be taken as statements of the Company or the Guarantor, as applicable, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Second Supplemental
Indenture.
Section 6.09. This Second Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
CONNER PERIPHERALS, INC.
[Seal]
By: /s/ James A. Taylor
---------------------------
Attest:
/s/ Thomas F. Mulvaney
- -------------------------
SEAGATE TECHNOLOGY, INC.
[Seal]
By: /s/ Alan F. Shugart
---------------------------
Attest:
/s/ Donald L. Waite
- -------------------------
STATE STREET BANK AND TRUST COMPANY
[Seal]
By: /s/ Gary Dougherty
---------------------------
Attest:
/s/
- -------------------------
21
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------------------------------------------------------------
CONNER PERIPHERALS, INC., Company
SEAGATE TECHNOLOGY, INC., Guarantor
and
STATE STREET BANK AND TRUST COMPANY
Trustee
------------------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of February 2,1996
To
INDENTURE
Dated as of March 1, 1992
------------------------------
Relating to
Conner Peripherals, Inc.
6 1/2% Convertible Subordinated Debentures
due 2002
------------------------------------------------------------
<PAGE>
This SECOND SUPPLEMENTAL INDENTURE, dated as of the 2nd day of February,
1996, by and among CONNER PERIPHERALS, INC., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"), SEAGATE
TECHNOLOGY, INC., a corporation duly organized and existing under the laws of
the State of Delaware (the "Guarantor"), and STATE STREET BANK AND TRUST
COMPANY, a trust company duly organized and existing under the laws of the
Commonwealth of Massachusetts, as successor in interest to the corporate trust
business of The First National Bank of Boston, a national banking association
organized and existing under the laws of the United States, and Trustee under
the Indenture (as hereinafter defined) (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company and The First National Bank of Boston have heretofore
entered into that certain Indenture, dated as of March 1, 1992, providing for
the issuance of 6 1/2% Convertible Subordinated Debentures due 2002 (the
"Debentures"), in the aggregate principal amount not to exceed two hundred
thirty million dollars ($345,000,000), and that certain First Supplemental
Indenture with respect thereto, dated as of September 8, 1992 in connection with
the merger of Conner Peripherals, Inc., a corporation duly organized and
existing under the laws of the State of California with and into the Company
(such indenture as so supplemented, and as further supplemented or amended in
accordance with its terms, herein the "Indenture");
WHEREAS, the Company, Athena Acquisition Corporation, a Delaware
corporation ("Athena"), and the Guarantor have entered into an Agreement and
Plan of Reorganization, dated as of October 3, 1995, as amended (the
"Reorganization Agreement"), pursuant to which Athena will merge (the "Merger")
with and into the Company, and the Company will then become a wholly-owned
subsidiary of Guarantor, and each share of the Company's Common Stock
outstanding immediately prior to the effective time of the Merger (the
"Effective Time") will be converted into the right to receive 0.442 shares of
Common Stock of the Guarantor in accordance with the terms of the Reorganization
Agreement;
WHEREAS, Section 15.06 of the Indenture provides that, "If any of the
following events occur, namely (i) any reclassification or change of outstanding
shares of Common Stock (other than a change in par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination), (ii) any consolidation, merger or combination of the Company
with another corporation as a result of which holders of Common Stock shall be
entitled to receive stock, securities or other property or assets (including
cash) with respect to or in exchange for such Common Stock, or (iii) any sale or
conveyance of the properties and assets of the Company as, or substantially as,
an entirety to any other corporation as a result of which holders of Common
Stock shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock shall
occur, then the Company or the successor or purchasing corporation, as the case
may be, shall execute with Trustee a supplemental indenture (which shall conform
to the Trust Indenture Act of 1939 as in force at the date of execution of such
supplemental
<PAGE>
indenture) providing that each Debenture shall be convertible into the kind and
amount of shares of stock and other securities or property or assets (including
cash) receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Debentures immediately prior to such
reclassification, change, consolidation, merger, combination, sale or conveyance
(but after giving effect to any adjustment required by subsection (d) of
Section 15.05 if such reclassification, change, consolidation, merger, sale or
conveyance constitutes a Fundamental Change). Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article;"
WHEREAS, Section 12.01 of the Indenture permits the Company to merge with
another corporation provided certain conditions are satisfied;
WHEREAS, the Guarantor is willing to guarantee, on a subordinated basis as
set forth more fully herein, the payment of the principal of, premium, if any,
and interest on the Debentures in order to preserve the exemption available
under Section 3(a)(9) of the Securities Act of 1933 for the conversion of
Debentures into Common Stock;
WHEREAS, Section 11.01 of the Indenture authorizes the Company, with the
consent of the Trustee, to supplement or amend the Indenture to comply with
Section 15.06 hereof and to correct or supplement provisions of or make other
provisions with respect to matters or questions arising under the Indenture that
do not adversely affect the rights of any Debentureholder;
WHEREAS, the Company and the Guarantor desire to execute a supplemental
indenture that complies with Section 11.01 of the Indenture;
WHEREAS, all acts and things necessary to make this Second Supplemental
Indenture a valid and binding agreement for the purposes and objects herein
expressed have been duly done and performed, and the execution of this Second
Supplemental Indenture have been in all respects, duly authorized;
WHEREAS, the foregoing recitals are made as representations or statements
of fact by the Company or the Guarantor, as applicable, and not by the Trustee;
and
WHEREAS, the Trustee is authorized by Section 11.01 of the Indenture to
execute this Second Supplemental Indenture without the consent of the holders of
the Debentures;
NOW, THEREFORE, in consideration of the premises and of other good and
valuable consideration, the receipt of which is hereby acknowledged, the Company
and the Guarantor hereby covenant and agree with the Trustee, for the equal and
proportionate benefit of the respective holders from time to time of the
Debentures, as follows:
2
<PAGE>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. The [Form of Face of Debenture] in the Indenture is hereby
amended by deleting the reference to "Common Stock of the Company" that appears
in the second paragraph thereof and inserting in lieu thereof the words "Common
Stock."
Section 1.02. The [Form of Reverse of Debenture] in the Indenture is
hereby amended by:
(a) Deleting the reference to "Common Stock of the Company" in the third
paragraph thereof and inserting in lieu thereof the words "Common Stock;"
(b) Deleting the reference to "Company's Common Stock" that appears in the
tenth paragraph thereof and inserting in lieu thereof the words "Common Stock;"
(c) Deleting the reference to "Common Stock of the Company" that appears
in the eleventh paragraph thereof and inserting in lieu thereof the words
"Common Stock;" and
(d) Deleting the fourteenth paragraph and inserting in lieu thereof the
following paragraph:
No recourse for the payment of the principal of or any premium or
interest on this Debenture, or for any claim based hereon or otherwise in
respect hereof, and no recourse under or upon any obligation, covenant or
agreement of the Company or the Guarantor in the Indenture or any indenture
supplemental thereto or in any Debenture, or because of the creation of any
indebtedness represented thereby or the guarantee by the Guarantor thereof,
shall be had against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or the Guarantor or of any
respective successor corporation, either directly or through the Company or
the Guarantor or any respective successor corporation, whether by virtue of
any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released; PROVIDED, HOWEVER, that the foregoing shall
not affect or impair the obligations of the Guarantor hereunder.
Section 1.03. The [Form of Conversion Notice] in the Indenture is hereby
amended by deleting the phrase "Common Stock of Conner Peripherals, Inc." and
inserting in lieu thereof the words "Common Stock."
Section 1.04. The terms defined in this Section 1.04 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Second Supplemental Indenture shall have the respective
meanings specified in this Section 1.04. All
3
<PAGE>
other terms used in this Second Supplemental Indenture which are defined in the
Indenture, the Trust Indenture Act of 1939 or which are by reference therein
defined in the Securities Act of 1933 (except as herein otherwise expressly
provided or unless the context otherwise requires) shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as
in force at the date of the execution of this Second Supplemental Indenture. The
words "herein," "hereof" and "hereunder," and words of similar import, refer to
this Second Supplemental Indenture as a whole and not to any particular Article,
Section or other Subsection. The terms defined in this Article include the
plural as well as the singular.
(a) The definitions of the following words contained in Section 1.01 of
the Indenture, are hereby amended by deleting them in their entirety and
inserting in lieu thereof the following respective definitions:
APPLICABLE PRICE: The term "Applicable Price" means (i) in the event
of a Fundamental Change in which the holders of Common Stock receive only
cash, the amount of cash received by the holder of one share of Common
Stock and (ii) in the event of any other Fundamental Change, the average of
the last reported sales price for the Common Stock (determined as set forth
in subsection (e) of Section 15.05) during the ten Trading Days (as defined
in subsection (3) of Section 15.05) prior to the record date for the
determination of the holders of Common Stock entitled to receive cash,
securities, property or other assets in connection with such Fundamental
Change, or, if there is no such record date, the earlier of the date upon
which the holders of the Common Stock shall have the right to receive such
cash, securities, property or other assets and the consummation of such
Fundamental Change.
COMMON STOCK: The term "Common Stock" shall mean any stock of any
class of Guarantor which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Guarantor and which is not subject to
redemption by the Guarantor. Subject to the provisions of Section 15.06,
however, shares issuable on conversion of Debentures shall include only
shares of the class designated as Common Stock of the Guarantor at the date
of this Second Supplemental Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which
have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding
up of the Guarantor and which are not subject to redemption by the
Guarantor; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such
class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
FUNDAMENTAL CHANGE: The term "Fundamental Change" means any sale or
transfer of all or substantially all of the assets of the Guarantor, or the
occurrence of any transaction or event, in connection with which in excess
of 50% of the Common Stock
4
<PAGE>
of Guarantor shall be exchanged for, converted into, acquired for or
constitute the right to receive (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise) consideration, less than
90% of which (in terms of value) is common stock which is (or will, upon
consummation of such transaction or event, be) listed on a national
securities exchange or approved for quotation in the National Association
of Securities Dealers, Inc. Automated Quotation System or similar system of
automated dissemination of quotations of securities prices.
REFERENCE MARKET PRICE: The term "Reference Market Price" shall
initially mean $30.14, and in the event of any adjustment to the conversion
price pursuant to subsection (a), (b) or (c) of Section 15.05, the
Reference Market Price shall also be adjusted so that the ratio of the
Reference Market Price to the conversion price after giving effect to any
such adjustment shall always be the same as the ratio of $30.14 to the
conversion price specified in the form of Debenture hereinabove set forth
(without regard to any adjustment thereto).
(b) Section 1.01 of the Indenture is hereby amended to add the following
definitions:
GUARANTOR: The term "Guarantor" shall mean Seagate Technology, Inc.,
a Delaware corporation, and shall include its successors and assigns.
GUARANTOR SENIOR INDEBTEDNESS: The term "Guarantor Senior
Indebtedness" shall mean the principal of, premium, if any, and interest
on, and any other payment due pursuant to the terms of an instrument
(including, without limitation, fees, expenses, collection expenses
(including attorneys' fees), interest yield amounts, post- petition
interest and taxes) creating, securing or evidencing any of the following,
whether outstanding at the date hereof or hereafter incurred or created:
(a) all indebtedness of the Guarantor for money borrowed
(including any indebtedness secured by a mortgage, conditional sales
contract or other lien which is (i) given to secure all or part of the
purchase price of property subject thereto, whether given to the
vendor of such property or to another or (ii) existing on property at
the time of acquisition thereof);
(b) all indebtedness of the Guarantor evidenced by notes,
debentures, bonds or other similar instruments;
(c) all indebtedness or other obligations of the Guarantor with
respect to interest rate swap agreements, cap, floor and collar
agreements, spot and forward contracts, and similar agreements and
arrangements;
5
<PAGE>
(d) all indebtedness or other obligations of the Guarantor with
respect to letters of credit (including reimbursement obligations with
respect thereto), bank guarantees and bankers' acceptances; and
(e) all lease obligations of the Guarantor which are capitalized
on the books of the Guarantor in accordance with generally accepted
accounting principles;
(f) all indebtedness of others of the kinds described in the
preceding clauses (a), (b), (c) or (d) and all lease obligations of
others of the kind described in the preceding clause (e) assumed by or
guaranteed in any manner by the Guarantor or in effect guaranteed by
the Guarantor through an agreement to purchase, contingent or
otherwise; and
(g) all renewals, extensions or refundings of indebtedness of
the kinds described in any of the preceding clauses (a), (b), (c),
(d), or (f) and all renewals or extensions of lease obligations of the
kinds described in either of the preceding clauses (e) or (f);
unless, in the case of a particular indebtedness, lease, renewal, extension
or refunding, the instrument or lease creating or evidencing the same or
the assumption or guarantee of the same expressly provides that such
indebtedness, lease, renewal, extension or refunding is not superior in
right of payment to or is PARI PASSU with or is subordinated or junior to,
the Guarantor's obligations under the Guaranty. Notwithstanding the
foregoing, Guarantor Senior Indebtedness shall not include:
(i) indebtedness evidenced by the Guaranty or otherwise in respect of the
Debentures; (ii) any indebtedness or lease obligation of any kind of the
Guarantor to any subsidiary of the Guarantor; (iii) indebtedness for trade
payables or constituting the deferred purchase price of assets or services
created or assumed by the Guarantor in the ordinary course of business; and
(iv) indebtedness evidenced by the Guarantor's 5% Convertible Subordinated
Debentures due 2003 and 6 3/4% Convertible Subordinated Debentures due
2012.
GUARANTY: The term "Guaranty" shall mean the guarantee of the
Guarantor pursuant to Section 17.01 hereof.
SUBSIDIARY: The term "subsidiary" of any specified person shall mean
(i) a corporation a majority of whose capital stock with voting power under
ordinary circumstances, to elect directors is at the time directly or
indirectly owned by such person, or (ii) any other person (other than a
corporation) in which such person or such person and a subsidiary or
subsidiaries of such person or a subsidiary or subsidiaries of such person
directly or indirectly, at the date of determination thereof, has at least
majority ownership.
6
<PAGE>
ARTICLE TWO
CONVERSION OF DEBENTURES
Section 2.01. As a result of the Merger and without any action on the part
of the holder of any Debenture, on and after the Effective Time each $1,000
principal amount of Debentures shall be convertible into shares of Common Stock
of the Guarantor, in accordance with the provisions of Article Fifteen of the
Indenture, at an initial conversion price per share of $54.30, such conversion
price being subject to subsequent adjustment after the Effective Time in
accordance with the provisions of Article Fifteen of the Indenture.
Section 2.02. Section 15.02 of the Indenture is hereby amended by adding
the words "or shall cause the Guarantor to" immediately after the words "the
Company shall" that appear in the first sentence of the second paragraph
thereof.
Section 2.03. Subsections (a) through (d) of Section 15.05 of the
Indenture are hereby amended by deleting all references therein to "the Company"
and inserting in lieu thereof "the Guarantor."
Section 2.04. Section 15.06 of the Indenture is hereby amended by deleting
the first paragraph of such Section in its entirety and inserting in lieu
thereof the following:
SECTION 15.06. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER
OR SALE. If any of the following events occur, namely (i) any
reclassification or change of outstanding shares of Common Stock
(other than a change in par value, or from par value to no par value,
or from no par value to par value, or as a result of a subdivision or
combination), (ii) any consolidation, merger or combination of the
Guarantor with another corporation as a result of which holders of
Common Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for
such Common Stock, or (iii) any sale or conveyance of the properties
and assets of the Guarantor as, or substantially as, an entirety to
any other corporation as a result of which holders of Common Stock
shall be entitled to receive stock, securities or other property or
assets (including cash) with respect to or in exchange for such Common
Stock shall occur, then the Company or the successor or purchasing
corporation, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall conform to the Trust Indenture Act
of 1939 as in force at the date of execution of such supplemental
indenture) providing that each Debenture shall be convertible into the
kind and amount of shares of stock and other securities or property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance by a holder of
a number of shares of Common Stock issuable upon conversion of such
Debentures immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance
7
<PAGE>
(but after giving effect to any adjustment required by subsection (d) of
Section 15.05 if such reclassification, change, consolidation, merger, sale
or conveyance constitutes a Fundamental Change). Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Article.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each holder of Debentures, at
his address appearing on the Debenture register provided for in
Section 2.05 of this Indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers,
combinations, sales and conveyances.
Section 2.05. Section 15.08 of the Indenture is hereby amended by deleting
such Section in its entirety and inserting in lieu thereof the following:
SECTION 15.08. RESERVATION OF SHARES; SHARES TO BE FULLY PAID;
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS; LISTING OF COMMON STOCK.
The Company shall use its best efforts to (a) cause the Guarantor to
provide, free from preemptive rights, out of its authorized but
unissued shares or shares held in treasury or (b) otherwise make
available sufficient shares to provide for the conversion of the
Debentures from time to time as such Debentures are presented for
conversion.
Before the taking of any action by the Guarantor which would
cause an adjustment reducing the conversion price below the then par
value, if any, of the shares of Common Stock issuable upon conversion
of the Debentures, the Company shall cause the Guarantor to take all
corporate action which may, in the opinion of the Company's counsel,
be necessary in order that the shares of Common Stock issuable or
otherwise deliverable upon conversion of the Debentures may be validly
and legally issued or delivered (as the case may be) at such adjusted
conversion price.
The Company covenants that all shares of Common Stock which may
be issued or otherwise delivered upon conversion of Debentures will,
when so issued or delivered, be fully paid and nonassessable by
Guarantor and the Company and free from all taxes, liens and charges
with respect to the issue or delivery thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of Debentures hereunder require
registration with or approval of any governmental authority under any
Federal or State law before such shares may be validly issued upon
conversion, the
8
<PAGE>
Company will in good faith and as expeditiously as possible endeavor to
secure such registration or approval, as the case may be.
The Company further covenants that if at any time Common Stock
shall be listed on the New York Stock Exchange or any other national
securities exchange the Company will, or shall cause the Guarantor to,
if permitted by the rules of such exchange, list and keep listed so
long as the Common Stock shall be so listed on such exchange, all
Common Stock issuable upon conversion of the Debentures.
Section 2.06. Section 15.10 of the Indenture is hereby amended by deleting
all references to "the Company" in clauses (a) through (d) thereof and inserting
in lieu thereof the words "the Guarantor."
ARTICLE THREE
CERTAIN COVENANTS OF THE GUARANTOR
Section 3.01. The Guarantor hereby covenants and warrants that
(a) immediately after the Effective Time, no condition or event shall exist
which constitutes or would, after notice or lapse of time or both, constitute a
Default or an Event of Default (both as defined in the Indenture), (b) it has
complied, or has caused the Company to comply, and will comply, or will cause
the Company to comply, with all applicable provisions of Article Fifteen of the
Indenture and (c) it has been authorized by its Board of Directors, pursuant to
Section 11.01 of the Indenture, to execute this Second Supplemental Indenture.
ARTICLE FOUR
GUARANTY OF DEBENTURES
Section 4.01. GUARANTY OF DEBENTURES. The Indenture is hereby amended to
add the following provisions as a new Article Seventeen to be inserted
immediately following Article Sixteen of the Indenture. Article Seventeen shall
apply to the Debentures only.
ARTICLE SEVENTEEN
SUBORDINATED GUARANTY OF DEBENTURES
Section 17.01. GUARANTY. Subject to the provisions of this Article
Seventeen, the Guarantor hereby unconditionally guarantees, on a
subordinated basis as set forth more fully in this Article Seventeen, to
each holder of a Debenture authenticated and
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delivered by the Trustee in accordance with the Indenture (i) the due and
punctual payment of the principal of, premium, if any, and interest
(including interest on other amounts which may accrue after the filing
against the Company of a petition under the United States Bankruptcy Code
(the "Bankruptcy Code"), whether or not the obligation to pay interest on
such amounts shall be enforceable against the Company) on such Debenture,
when and as the same shall become due and payable, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on the
overdue principal of, premium and interest, if any, on such Debenture, to
the extent lawful, and the due and punctual performance of all other
obligations of the Company to the holders or the Trustee all in accordance
with the terms of such Debenture and of this Indenture, and (ii) in the
case of any extension of time of payment or renewal of any such Debenture
or any of such other obligations, that the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, at stated maturity, by acceleration or otherwise. A demand for
payment under this Article Seventeen shall not be effective prior to 48
hours after a demand upon the Company for full and complete payment of all
amounts due and payable under the Debentures, unless such demand upon the
Company shall be stayed by operation of Section 362 of the Bankruptcy Code
or otherwise. In all other respects, the Guarantor hereby agrees that its
obligations hereunder shall be absolute and unconditional, irrespective of,
and shall be unaffected by, any invalidity, irregularity or
unenforceability of any such Debenture or this Indenture, any failure to
enforce the provisions of any such Debenture or this Indenture, any waiver,
modification or indulgence granted to the Company with respect thereto, by
the holder of such Debenture or the Trustee, or any other circumstances
which may otherwise constitute a legal or equitable discharge of a surety
or guarantor. The Guarantor hereby waives diligence, presentment, filing
of claims with a court in the event of merger or bankruptcy of the Company,
any right to require a proceeding first against the Company, the benefit of
discussion, protest or notice with respect to any such Debenture or the
debt evidenced thereby and all demands whatsoever (except as specified
above), and covenants, that this Guaranty will not be discharged as to any
such Debenture except by payment in full of the principal thereof, premium
if any, and interest thereon. The Guarantor further agrees that, as
between the Guarantor, on the one hand, and the Debentureholder and the
Trustee, on the other hand, (i) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Seven hereof for the
purposes of this Guaranty notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, provided that notice of such acceleration has been given
to the Guarantor by the Trustee, and (ii) in the event of any declarations
of acceleration of such obligations as provided in Article Seven hereof,
such obligations (whether or not due and payable) shall forthwith become
due and payable by the Guarantor for the purpose of this Guaranty.
The Guarantor shall be subrogated to all rights of the holders of any
Debentures against the Company in respect of any amounts paid to the
Debentureholder by the Guarantor pursuant to the provisions of this
Guaranty; PROVIDED that the Guarantor
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<PAGE>
shall not be entitled to enforce, or to receive any payments arising out of
or based upon, such right of subrogation until the principal of, premium,
if any, and interest on all the Debentures shall have been paid in full and
until all amounts payable under any Senior Indebtedness shall have been
paid in full.
Section 17.02. GUARANTY SUBORDINATED TO GUARANTOR SENIOR
INDEBTEDNESS. The Guarantor covenants and agrees, and the Trustee and each
holder of the Debentures by its acceptance thereof likewise covenants and
agrees, that all payments pursuant to the Guaranty by the Guarantor shall
be subordinated in accordance with the following provisions of this Article
Seventeen to the prior payment in full of all Guarantor Senior
Indebtedness.
Section 17.03. PAYMENTS TO DEBENTUREHOLDERS. No direct or indirect
payment shall be made on the Guaranty by the Guarantor, if there shall have
occurred and be continuing (a) any default in the payment of principal,
premium, if any, or interest on any Guarantor Senior Indebtedness
continuing beyond the period of grace, if any, specified in the instrument
or lease evidencing such Guarantor Senior Indebtedness with respect to
Guarantor Senior Indebtedness, or (b) any other default with respect to any
Guarantor Senior Indebtedness permitting the acceleration thereof and such
default is the subject of a judicial proceeding or the Guarantor receives
notice of such a default from the holders of an aggregate of not less than
$5,000,000 aggregate principal amount of such Guarantor Senior Indebtedness
(PROVIDED, HOWEVER, that in the case of Guarantor Senior Indebtedness
issued pursuant to an indenture such notice may be validly given only by
the trustee under such indenture), unless and until such default or event
of default shall have been cured or waived or shall have ceased to exist.
Upon any acceleration of the principal of the Debentures or any
payment by the Guarantor, or distribution of assets of the Guarantor of any
kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of the
Guarantor, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon
all Guarantor Senior Indebtedness shall first be paid in full in money or
money's worth, or payment thereof provided for in accordance with its
terms, before any payment is made by the Guarantor pursuant to the Guaranty
on account of the principal of (and premium, if any) or interest on the
Debentures; and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Guarantor, or distribution of assets of
the Guarantor of any kind or character, whether in cash, property or
securities, to which the holders of the Debentures or the Trustee would be
entitled pursuant to or with respect to the Guaranty except for the
provisions of this Article Seventeen, shall (except as aforesaid) be paid
by the Guarantor or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by
the holders of the Debentures or by the Trustee under this Indenture if
received by them or it, directly to the holders of Guarantor Senior
Indebtedness (pro rata to such holders on the basis of the respective
amounts of
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Guarantor Senior Indebtedness held by such holders, as calculated by the
Guarantor) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing
any Guarantor Senior Indebtedness may have been issued, as their respective
interests may appear, to the extent necessary to pay all Guarantor Senior
Indebtedness in full in money or money's worth, after giving effect to any
concurrent payment or distribution to or for the holders of Guarantor
Senior Indebtedness, before any payment or distribution is made to the
holders of the Debentures or to the Trustee pursuant to the Guaranty.
In the event that, notwithstanding the foregoing, any payment by or
distribution of assets of the Guarantor of any kind or character, whether
in cash, property or securities, prohibited by the foregoing, shall be
received by the Trustee or the holders of the Debentures before all
Guarantor Senior Indebtedness is paid in full in money or money's worth, or
provision is made for such payment, and if such fact shall then have been
made known to a Responsible Officer of the Trustee or, as the case may be,
such Debentureholder, then and in such event such payment or distribution
shall be paid over or delivered to the holders of Guarantor Senior
Indebtedness or their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments
evidencing any Guarantor Senior Indebtedness may have been issued, as their
respective interests may appear, for application to the payment of all
Guarantor Senior Indebtedness remaining unpaid to the extent necessary to
pay all Guarantor Senior Indebtedness in full in money or money's worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Guarantor Senior Indebtedness (but subject to the power of
a court of competent jurisdiction to make other equitable provision, which
shall have been determined by such court to give effect to the rights
conferred in this Article Seventeen upon the Guarantor Senior Indebtedness
and the holders thereof with respect to Debentures or the holders thereof
or the Trustee, by a lawful plan of reorganization or readjustment under
applicable bankruptcy law).
The consolidation of the Guarantor with, or the merger of the
Guarantor into, another corporation or the liquidation or dissolution of
the Guarantor following the conveyance or transfer of its property as an
entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Section 17.12 hereof shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 17.03 if such other corporation shall, as a part
of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Section 17.12 hereof.
The holders of Guarantor Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the holders of the
Debentures, without incurring responsibility to the holders of the
Debentures and without impairing or releasing the obligations of the
holders of the Debentures hereunder to the holders of Guarantor Senior
Indebtedness: (i) change the manner, place or terms of payment or
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<PAGE>
change or extend the time of payment of, or renew or alter, Guarantor
Senior Indebtedness, or otherwise amend in any manner Guarantor Senior
Indebtedness or any instrument evidencing the same or any agreement under
which Guarantor Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Guarantor Senior Indebtedness; (iii) release any Person liable in
any manner for the collection of Guarantor Senior Indebtedness; and
(iv) exercise or refrain from exercising any rights against the Guarantor
and any other Person.
Section 17.04. PAYMENTS MAY BE PAID PRIOR TO DISSOLUTION. Nothing
contained in this Article Seventeen shall prevent (i) the Guarantor, except
under the conditions described in Section 17.03, from making payments on
the Guaranty at any time, or (ii) the application by the Trustee of any
monies deposited with it for the purpose of making such payments pursuant
to the Guaranty, to the holders entitled thereto unless at least three
Business Days prior to the date upon which such payment would otherwise
(except for the prohibitions contained in Section 17.03) become due and
payable, the Trustee shall have received the written notice provided for in
Section 17.07.
Section 17.05. AUTHORIZATION TO TRUSTEE TO TAKE ACTION TO EFFECTUATE
SUBORDINATION. Each holder of Debentures by his acceptance of the Guaranty
authorizes and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate, as between the holders of
Guarantor Senior Indebtedness and the Debentureholders, the subordination
as provided in this Article Seventeen and appoints the Trustee his
attorney-in-fact for any and all such purposes.
Section 17.06. SUBROGATION OF DEBENTURES. Subject to the payment in
full of all Guarantor Senior Indebtedness, the holders of the Debentures
shall be subrogated to the rights of the holders of Guarantor Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Guarantor applicable to the Guarantor Senior Indebtedness
to the extent that amounts otherwise payable to such holders of Debentures
or otherwise distributable in respect of the Debentures to such holders of
Debentures pursuant to or with respect to the Guaranty shall instead have
been paid to the holders of Guarantor Senior Indebtedness pursuant to this
Article Seventeen until all amounts due under the Guaranty shall be paid in
full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Guarantor Senior Indebtedness of any
cash, property or securities to which the holders of the Debentures or the
Trustee would be entitled pursuant to or with respect to the Guaranty
except for the provisions of this Article Seventeen, and no payments over
pursuant to the provisions of this Article Seventeen, to or for the benefit
of the holders of Guarantor Senior Indebtedness by holders of the
Debentures or the Trustee, shall, as between the Guarantor, its creditors
other than holders of Guarantor Senior Indebtedness, and the holders of the
Debentures, be deemed to be a payment by the Guarantor to or on account of
the Guarantor Senior Indebtedness; it being understood that the provisions
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<PAGE>
of this Article Seventeen are and are intended solely for the purpose of
defining the relative rights of the holders of the Debentures, on the one
hand, and the holders of the Guarantor Senior Indebtedness, on the other
hand.
Nothing contained in this Article Seventeen or elsewhere in this
Indenture or in the Debentures is intended to or shall impair, as between
the Guarantor, its creditors other than the holders of Guarantor Senior
Indebtedness, and the holders of the Debentures, the obligation of the
Guarantor, which is absolute and unconditional, to pay to the holders of
the Debentures the principal of (and premium, if any) and interest on the
Debentures as and when the same shall become due and payable in accordance
with the provisions of the Guaranty, or is intended to or shall affect the
relative rights of the holders of the Debentures and creditors of the
Guarantor other than the holders of the Guarantor Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the holder of any
Debenture from exercising all remedies otherwise permitted by applicable
law upon default under this Indenture, subject to the rights, if any, under
this Article Seventeen of the holders of Guarantor Senior Indebtedness in
respect of cash, property or securities of the Guarantor received pursuant
to the Guaranty upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Guarantor referred
to in this Article Seventeen, the Trustee, subject to the provisions of
Section 8.01, and the holders of the Debentures shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding-up, liquidation or reorganization
proceedings are pending, or a certificate of the receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, delivered to the Trustee or to the holders of the
Debentures, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Guarantor Senior
Indebtedness and other indebtedness of the Guarantor, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Seventeen.
Section 17.07. NOTICES TO TRUSTEE AND GUARANTOR SENIOR INDEBTEDNESS.
The Guarantor shall give prompt written notice in the form of an Officers'
Certificate to a Responsible Officer of the Trustee of any fact known to
the Guarantor which would prohibit the making of any payment of monies to
or by the Trustee in respect of the Guaranty pursuant to the provisions of
this Article Seventeen. Notwithstanding the provisions of this Article
Seventeen or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of monies to or by the Trustee with
respect to any monies deposited with the Trustee by the Guarantor pursuant
to the Guaranty in respect of the Debentures pursuant to the provisions of
this Article Seventeen, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof at the Corporate Trust
Office of the Trustee from the Guarantor or a holder or holders of
Guarantor Senior Indebtedness or from any representative or trustee thereof
(PROVIDED,
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HOWEVER, that in the case of Guarantor Senior Indebtedness issued pursuant
to an indenture such notice may be validly given only by the trustee under
such indenture); and before the receipt of any such written notice, the
Trustee, subject to the provisions of Section 8.01 shall be entitled in all
respects to assume that no such facts exist; PROVIDED, HOWEVER, that if the
Trustee shall not have received at least three Business Days prior to the
date upon which by the terms hereof any such monies may become payable for
any purpose (including, without limitation, the payment of the principal of
(or premium, if any) or interest on any Debenture) with respect to such
monies the notice provided for in this Section 17.07, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such monies and to apply the same to the
purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it within three Business
Days prior to such date; PROVIDED, FURTHER, that the immediately preceding
proviso shall not apply to any notice provided for in this Section 17.07 in
the event such notice is received and acknowledged by a Responsible Officer
of the Trustee at least one Business Day prior to such date.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Person representing himself to be a holder of Guarantor
Senior Indebtedness (or a trustee on behalf of such holder) to establish
that such notice has been given by a holder of Guarantor Senior
Indebtedness or a representative of or trustee on behalf of any such holder
or holders. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a
holder of Guarantor Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Seventeen, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of Guarantor 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 Seventeen, and if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 17.08. TRUSTEE'S RELATION TO GUARANTOR SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article Seventeen in respect of any Guarantor Senior
Indebtedness at any time held by it, to the same extent as any other holder
of Guarantor Senior Indebtedness, and nothing in this Section 17.08 or
elsewhere in this Indenture shall deprive the Trustee of any of its rights
as such holder.
With respect to the holders of Guarantor Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article Seventeen, and no
implied covenants or obligations with respect to the holders of Guarantor
Senior Indebtedness shall be read into this Indenture against the Trustee.
The Trustee shall not owe any fiduciary duty to the
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<PAGE>
holders of Guarantor Senior Indebtedness, but shall have only such
obligations to such holders as are expressly set forth in this Article
Seventeen.
Section 17.09. NO IMPAIRMENT OF SUBORDINATION. No right of any
present or future holder of any Guarantor Senior Indebtedness to enforce
subordination as herein provided shall at any time in any way be prejudiced
or impaired by any act or failure to act on the part of the Guarantor
(including by way of an amendment to the provisions of this Article
Seventeen) or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Guarantor with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof which
any such holder may have or otherwise be charged with.
Section 17.10. ARTICLE APPLICABLE TO PAYING AGENTS. In case at any
time any paying agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in
this Article Seventeen (except in Section 17.05) shall in such case (unless
the context otherwise requires) be construed as extending to and including
such paying agent within its meaning as fully for all intents and purpose
as if such paying agent were named in this Article Seventeen in addition to
or in place of the Trustee, PROVIDED, HOWEVER, that this Section shall not
apply to the Guarantor or any affiliate of the Guarantor if it or such
affiliate acts as paying agent.
Section 17.11. EXECUTION OF GUARANTY. To evidence their guaranty to
the Debentureholders specified in Section 17.01, the Guarantor hereby
agrees to execute the Guaranty in substantially the form above recited to
be endorsed on each Debenture authenticated and delivered by the Trustee
after the Effective Time or, in lieu thereof, stamp each such Debenture
with an appropriate notation on such Debenture. The Guarantor hereby
agrees that its Guaranty set forth in Section 17.01 shall remain in full
force and effect notwithstanding any failure to include such endorsement or
notation of such Guaranty on each Debenture. If applicable, the Guaranty
shall be signed on behalf of the Guarantor by its Chairman of the Board,
President or a Vice President, prior to the authentication of the Debenture
on which it is endorsed, and the delivery of such Debenture by the Trustee,
after the authentication thereof hereunder, shall constitute due delivery
of the Guaranty on behalf of the Guarantor. Such signatures upon the
Guaranty may be manual or facsimile signatures of the present, past or any
future such officers and may be imprinted or otherwise reproduced on the
Guaranty, and in case any such officer who shall have signed the Guaranty
shall cease to be such officer before the Debenture on which such Guaranty
is endorsed shall have been authenticated and delivered by the Trustee or
disposed of by the Company, such Debenture nevertheless may be
authenticated and delivered or disposed of as though the person who signed
the Guaranty had not ceased to be such officer of the Guarantor.
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Section 17.12. GUARANTORS MAY CONSOLIDATE, ETC., ON CERTAIN TERMS.
(a) Except as set forth in Article Twelve, nothing contained in
this Indenture or in any of the Debentures shall prevent any consolidation
or merger of the Guarantor with or into the Company or shall prevent any
sale or conveyance of the property of the Guarantor as an entirety or
substantially as an entirety, to the Company. Upon any such consolidation,
merger, sale or conveyance, the Guaranty given by the Guarantor shall no
longer have any force or effect.
(b) Nothing contained in this Indenture (including, without
limitation, Section 17.12(a) hereof) or in any of the Debentures shall
prevent any consolidation or merger of the Guarantor with or into a
corporation or corporations other than the Company (whether or not
affiliated with the Guarantor), or successive consolidations or mergers in
which the Guarantor or its successor or successors shall be a party or
parties, or shall prevent any sale or conveyance of the property of the
Guarantor as an entirety or substantially as an entirety, to a corporation
other than the Company (whether or not affiliated with the Guarantor)
authorized to acquire and operate the same; PROVIDED, however, that the
Guarantor hereby covenants and agrees, that, except as provided in Section
17.12(a), upon any such consolidation, merger, sale or conveyance, the
Guaranty endorsed on the Debentures, and the due and punctual performance
and observance of all of the covenants and conditions of this Indenture to
be performed by the Guarantor, shall be expressly assumed (in the event
that the Guarantor is not the surviving corporation in the merger), by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the corporation formed by such consolidation,
or into which the Guarantor shall have been merged, or by the corporation
which shall have acquired such property. In case of any such
consolidation, merger, sale or conveyance and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the Guaranty
endorsed upon the Debentures and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor corporation shall succeed to and be substituted
for the Guarantor, with the same effect as if it had been named herein as a
Guarantor. Such successor corporation thereupon may cause to be signed the
Guaranty to be endorsed upon all of the Debentures issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee.
Section 17.13. SECURITIES AND EXCHANGE COMMISSION REPORTS. The
Guarantor shall file with the Trustee, within 15 days after it files with
the Securities and Exchange Commission, copies of the quarterly and annual
reports and the information, documents, and other reports (or copies or
such portions of any of the foregoing as the Securities and Exchange
Commission may by rules and regulations prescribe) that it is required to
file with the Securities and Exchange Commission pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended. The Guarantor
shall comply with the other provisions of Section 314(a) of the Trust
Indenture Act of 1939.
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<PAGE>
Section 17.14. TERMINATION OF GUARANTY. This Guaranty shall
terminate upon the earlier of the date in which there are no Debentures
outstanding under the Indenture or the provisions of Article Thirteen of
the Indenture have been satisfied in full.
ARTICLE FIVE
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
Section 5.01. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS. Article Fourteen of the Indenture is hereby amended by deleting in
entirety Article Fourteen and inserting in lieu thereof the following Article
Fourteen:
ARTICLE FOURTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 14.01. INDENTURE AND DEBENTURES SOLELY CORPORATE OBLIGATIONS.
No recourse for the payment of the principal of or premium, if any, or
interest on the Debenture, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company or the Guarantor in this Indenture or in any
supplemental indenture, or in any Debenture, or because of the creation of
any indebtedness represented thereby or the guarantee by the Guarantor
thereof, shall be had against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or the Guarantor
or of any respective successor corporation, either directly or through the
Company or the Guarantor or any respective successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this
Indenture and the issue of Debentures; PROVIDED, HOWEVER, that the
foregoing shall not affect or impair the obligations of the Guarantor
hereunder.
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ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. This Second Supplemental Indenture shall become effective at
the Effective Time and shall be automatically null and void if and in the event
that the Merger shall not become effective on or prior to February 15, 1996.
Section 6.02. This Second Supplemental Indenture shall be governed by and
construed in accordance with the Laws of the State of California, without regard
to the principles of conflicts of laws thereof.
Section 6.03. Except as expressly contemplated by Sections 1.02(d) and
5.01 hereof, nothing in this Second Supplemental Indenture, expressed or
implied, shall give or be construed to give any person, firm or corporation,
other than the parties hereto and their successors hereunder, and the holders of
the Debentures or the holders of Guarantor Senior Indebtedness, any legal or
equitable right, remedy or claim under or in respect to this Second Supplemental
Indenture, or under any covenant, condition or provision herein contained; all
such covenants, conditions and provisions being for the sole benefit of the
parties hereto and their successors hereunder and the holders of the Debentures.
Section 6.04. The Trustee accepts the amendment of the Indenture effected
by this Second Supplemental Indenture and agrees to execute the trust created by
the Indenture as hereby amended, but only upon the terms and conditions set
forth in the Indenture, including the terms and provisions defining and limiting
the liabilities and responsibilities of the Trustee, which terms and provisions
shall in like manner define and limit its liabilities and responsibilities in
the performance of the trust created by the Indenture as hereby amended.
Section 6.05. After the Effective Time, any Debentures authenticated and
delivered in substitution for, or in lieu of, Debentures then outstanding and
all Debentures presented or delivered to the Trustee on and after the Effective
Time for such purpose shall be either restated to give the effect to the Second
Supplemental Indenture or, in lieu thereof, stamped with a notation
substantially as follows:
The principal amount of this Debenture has become
convertible into shares of the Common Stock, par value $0.01
per share, of Seagate Technology, Inc., at an initial
conversion price per share of $54.30, such conversion price
being subject to certain adjustments as set forth in the
Indenture. Reference herein to "Common Stock of the
Company" or the "Company's Common Stock" shall be deemed to
be to the Common Stock of Seagate Technology, Inc. The
payment of principal of, premium, if any, and interest on
the Debentures has been guaranteed by Seagate Technology,
Inc. on a subordinated basis as set forth in the Indenture.
The Indenture, dated as of March 1, 1992, referred to in
this
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Debenture has been amended by a Second Supplemental Indenture, dated as of
February 2, 1996, to provide for such convertibility and guarantee.
Reference is hereby made to said Second Supplemental Indenture, copies of
which are on file with Conner Peripherals, Inc. and Seagate Technology,
Inc., for a statement of the amendment therein made.
Nothing contained in this Second Supplemental Indenture shall require the
holder of any Debenture to submit or exchange such Debenture prior to the
Effective Time in order to obtain the benefits of the Guaranty or any other
provisions hereunder.
The Company agrees to provide the Trustee with a stamp or means of
reproducing the above legend on the Debentures without materially obscuring the
text of the Debentures.
Anything herein contained to the contrary notwithstanding, the Trustee
shall not at any time be under any responsibility to acquire or cause any
Debenture now or hereafter outstanding to be presented or delivered to it for
any purpose provided for in this Section 6.05.
Section 6.06. Except as expressly supplemented by this Second Supplemental
Indenture, the Indenture, the Debentures issued thereunder and the charge and
obligation created thereby are in all respects ratified and confirmed and all of
the rights, remedies, terms, conditions, covenants and agreements of the
Indenture and the Debentures issued thereunder shall remain in full force and
effect.
Section 6.07. If any provision of this Second Supplemental Indenture
limits, qualifies or conflicts with (a) another provision of this Second
Supplemental Indenture, or (b) any provision of the Indenture, which is required
to be included by any of the provisions of Section 310 to 317, inclusive, of the
Trust Indenture Act of 1939, such required provision shall control.
Section 6.08. The recitals contained in this Second Supplemental Indenture
shall be taken as statements of the Company or the Guarantor, as applicable, and
the Trustee assumes no responsibility for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this Second Supplemental
Indenture.
Section 6.09. This Second Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
CONNER PERIPHERALS, INC.
[Seal]
By: /s/ JAMES A. TAYLOR
---------------------------
Attest:
/s/ THOMAS F. MULVANEY
- -------------------------
SEAGATE TECHNOLOGY, INC.
[Seal]
By: /s/ ALAN F. SHUGART
---------------------------
Attest:
/s/ DONALD L. WAITE
- -------------------------
STATE STREET BANK AND TRUST COMPANY
[Seal]
By: /s/ GARY DOUGHERTY
---------------------------
Attest:
/s/
- -------------------------
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CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statements on Form S-3 (Nos. 33-55249 and
33-56027) and the Registration Statements on Form S-8 (Nos. 33-43911, 33-50973,
33-39916, 33-56215, 33-34793, 33-64339 and 333-00697) of Seagate Technology,
Inc. of our report dated January 11, 1995, except as to Note 15 which is dated
as of July 25, 1995, appearing on page 21 of Conner Peripherals, Inc.'s Annual
Report on Form 10-K/A for the year ended December 31, 1994, which is
incorporated by reference in Seagate Technology, Inc.'s Form 8-K relating to
the merger of Conner Peripherals, Inc. with Athena Acquisition Corporation, a
wholly owned subsidiary of Seagate Technology, Inc. We also consent to the
incorporation by reference of our report on the Financial Statement Schedule,
which appears on Page S-2 of such Annual Report on Form 10-K/A.
/s/ Price Waterhouse LLP
- --------------------------
Price Waterhouse LLP
San Jose, California
February 6, 1996
