<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 5, 1994
REGISTRATION NO. 33-56327
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
FIRST FINANCIAL MANAGEMENT CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
------------------------
<TABLE>
<S> <C>
GEORGIA 58-1107864
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION) IDENTIFICATION NUMBER)
</TABLE>
3 CORPORATE SQUARE, SUITE 700
ATLANTA, GEORGIA 30329
(404) 321-0120
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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<PAGE> 2
EXPLANATORY NOTE
This Registration Statement includes:
(1) A core Prospectus covering an aggregate of $1,000,000,000 of Debt
Securities, Convertible Debt Securities and Common Stock; and
(2) An initial Prospectus Supplement covering $400,000,000 of Senior
Convertible Debentures Due 1999 to be offered initially pursuant to this
Registration Statement.
<PAGE> 3
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS SUPPLEMENT (SUBJECT TO COMPLETION, ISSUED DECEMBER 5, 1994)
(To Prospectus Dated December 5, 1994)
$400,000,000
First Financial Management Corporation
% SENIOR CONVERTIBLE DEBENTURES DUE 1999
------------------------
Interest payable December 15 and June 15
------------------------
The Debentures are convertible into Common Stock of the Company at any time
prior to maturity, unless previously redeemed, at a conversion price of
$ per share, subject to adjustment in certain events. The
last reported sale price of the Company's Common Stock
on the New York Stock Exchange on December 2,
1994 was $57 3/8 per share.
------------------------
The Debentures are not redeemable at the option of the Company prior to December
15, 1997 and will not be subject to any sinking fund. Beginning December 15,
1997, the Debentures will be redeemable on at least 30 days' notice at
the option of the Company, in whole or in part at any time, initially
at % until December 15, 1998, at % thereafter to and
including December 14, 1999, and at 100% at maturity, together
with accrued interest. The Debentures may be redeemed at the
option of the Holder if there is a Fundamental Change (as
defined herein) at the redemption prices set forth
herein, subject to adjustment in certain events,
together with accrued interest.
------------------------
The Company has applied to list the Debentures on the New York Stock Exchange.
------------------------
THE DEBENTURES AND THE COMMON STOCK ISSUABLE UPON CONVERSION OF THE DEBENTURES
HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS SUPPLEMENT OR THE
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
------------------------
PRICE 100% AND ACCRUED INTEREST
------------------------
<TABLE>
<CAPTION>
UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC(1) COMMISSIONS(2) COMPANY(1)(3)
------------- -------------- -------------
<S> <C> <C> <C>
Per Debenture.............................................. 100.000% % %
Total(4)................................................... $ 400,000,000 $ $
</TABLE>
- ------------
(1) Plus accrued interest, if any, from December , 1994.
(2) The Company has agreed to indemnify the several Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933.
(3) Before deducting expenses payable by the Company estimated to be $1,100,000.
(4) The Company has granted to the Underwriters an option, exercisable within 30
days of the date hereof, to purchase up to an additional $60,000,000
principal amount of Debentures at the price to public less underwriting
discounts and commissions for the purpose of covering over-allotments, if
any. If the Underwriters exercise such option in full, the total price to
public, total underwriting discounts and commissions and total proceeds to
Company will be $460,000,000, $ , and $ ,
respectively. See "Underwriters."
------------------------
The Debentures are offered, subject to prior sale, when, as and if accepted
by the Underwriters, and subject to approval of certain legal matters by
Shearman & Sterling, counsel for the Underwriters. It is expected that delivery
of the Debentures will be made on or about December , 1994 at the offices of
Morgan Stanley & Co. Incorporated, New York, New York, against payment therefor
in New York funds.
------------------------
MORGAN STANLEY & CO.
Incorporated
BEAR, STEARNS & CO. INC.
CS FIRST BOSTON
December , 1994
<PAGE> 4
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS IN
CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR THE UNDERWRITERS. NEITHER THE
DELIVERY OF THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS NOR ANY SALE MADE
HEREUNDER AND THEREUNDER SHALL UNDER ANY CIRCUMSTANCE CREATE AN IMPLICATION THAT
THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS DO NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY STATE IN WHICH SUCH OFFER OR SOLICITATION IS NOT
AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS NOT
QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PROSPECTUS SUPPLEMENT
Prospectus Summary.................................................................... S-3
Use of Proceeds....................................................................... S-4
Capitalization........................................................................ S-5
Description of Debentures............................................................. S-6
Underwriters.......................................................................... S-10
Legal Matters......................................................................... S-11
PROSPECTUS
Available Information................................................................. 2
Incorporation of Certain Documents by Reference....................................... 2
The Company........................................................................... 3
Recent Acquisition of Western Union Money Transfer Business........................... 3
Use of Proceeds....................................................................... 3
Price Range of Common Stock and Dividend Policy....................................... 4
Pro Forma Combined Financial Statements............................................... 5
Selected Financial Data............................................................... 11
Management's Discussion and Analysis of Financial Condition and Results of
Operations.......................................................................... 12
Business of the Company............................................................... 18
Description of Debt Securities........................................................ 26
Description of Capital Stock.......................................................... 32
Plan of Distribution.................................................................. 33
Legal Matters......................................................................... 34
Experts............................................................................... 34
</TABLE>
------------------------
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE DEBENTURES
OFFERED HEREBY, THE COMMON STOCK OF THE COMPANY, OR BOTH, AT LEVELS ABOVE THOSE
WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH TRANSACTIONS MAY BE
EFFECTED ON THE NEW YORK STOCK EXCHANGE OR OTHERWISE. SUCH STABILIZING, IF
COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
S-2
<PAGE> 5
PROSPECTUS SUMMARY
THE COMPANY
First Financial Management Corporation ("FFMC" or the "Company") is a
national leader in information services, offering a vertically integrated set of
data processing, storage and management services and products for the capture,
manipulation and distribution of data. FFMC operates in a single business
segment and continues to pursue further integration of its services and products
to gain competitive advantages. Similarities exist among its integrated
businesses in the methods of providing services, in the customers served, and in
the marketing activities utilized to obtain new customers. Services include
merchant and consumer payment services (involving credit cards, debit cards,
checks and nonbank immediate money transfers); debt collection and accounts
receivable management; data imaging, micrographics and electronic database
management; health care claims processing and integrated management and cost
containment services; and the development and marketing of data communications
and information processing systems, including in-store marketing programs and
systems for supermarkets. See "Business of the Company" and "Recent Acquisition
of Western Union Money Transfer Business."
THE OFFERING
Securities Offered......... $400,000,000 principal amount of % Senior
Convertible Debentures due 1999 (the "Debentures")
(plus an additional $60,000,000 principal amount if
the Underwriters' over-allotment option is
exercised in full). See "Description of
Debentures -- General."
Interest Payment Dates..... December 15 and June 15, commencing June 15, 1995.
Conversion................. Each Debenture will be convertible, at the option
of the holder, prior to maturity, unless previously
redeemed, into Common Stock at $ per share,
subject to adjustment. See "Description of
Debentures -- Conversion of Debentures."
Sinking Fund............... None.
Redemption................. The Debentures are not redeemable at the option of
the Company prior to December 15, 1997. Thereafter,
the Debentures will be redeemable, on at least 30
days' notice, at the option of the Company, in
whole or in part at any time, initially at %
until December 15, 1998, at % thereafter to and
including December 14, 1999, and at 100% at
maturity, together with accrued interest. The
Debentures may be redeemed at the option of the
Holder if there is a Fundamental Change (as defined
herein) at the redemption prices set forth herein,
subject to adjustment in certain events, together
with accrued interest. See "Description of
Debentures -- Optional Redemption by the Company"
and "-- Redemption at Option of Holders."
Use of Proceeds............ The Company intends to use the net proceeds from
the sale of the Debentures for the reduction of
bank indebtedness incurred for the Company's recent
acquisition of Western Union Financial Services,
Inc. and related assets. See "Use of Proceeds."
Listing.................... The Company has applied to list the Debentures on
the New York Stock Exchange.
S-3
<PAGE> 6
USE OF PROCEEDS
The net proceeds to be received by FFMC from the sale of the $400 million
aggregate principal amount of Debentures offered hereby are estimated to be
$ ($ if the over-allotment option is exercised in full). FFMC
intends to use the net proceeds from the sale of the Debentures for the
reduction of the bank indebtedness incurred for FFMC's recent acquisition of
Western Union Financial Services, Inc. and related assets ("Western Union"). In
connection therewith, FFMC has borrowed $493 million and expects to borrow an
additional amount of approximately $300 million in January 1995 under its
revolving bank credit facility. FFMC's initial borrowing of $493 million is
currently bearing interest at a one month rate of 5.6%. See "Recent Acquisition
of Western Union Money Transfer Business" and "Business of the
Company -- Recently Acquired Business of Western Union" (which describes the
acquired money transfer business).
S-4
<PAGE> 7
CAPITALIZATION
The following table sets forth the capitalization of FFMC as of September
30, 1994 on (i) an historical basis, (ii) a pro forma basis giving effect to the
recent purchase of Western Union for $893 million in cash (including $300
million payable in January 1995), and (iii) a pro forma "as adjusted" basis
giving effect to the acquisition of Western Union and the sale of $400 million
of Debentures being offered pursuant to this Prospectus Supplement. See "Pro
Forma Combined Financial Statements."
<TABLE>
<CAPTION>
SEPTEMBER 30, 1994
------------------------------------------
AS ADJUSTED
PRO FORMA TO REFLECT
WITH PURCHASE OF
PURCHASE OF WESTERN UNION
FFMC WESTERN AND SALE OF
(HISTORICAL) UNION DEBENTURES
------------ ----------- -------------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C>
Indebtedness:
Current portion of long-term debt(1)................... $ 10,334 $ 12,641 $ 12,641
Long-term debt (less current portion)(1)............... 7,487 810,727
% Senior Convertible Debentures due 1999.......... -- -- 400,000
------------ ----------- -------------
Total indebtedness............................. 17,821 823,368
------------ ----------- -------------
Shareholders' Equity:
Preferred Stock, $1.00 par value, 5,000,000 shares
authorized; none outstanding
Common Stock, $.10 par value, 150,000,000 shares
authorized; 62,510,411 shares outstanding(2)........ 6,251 6,251 6,251
Paid-in capital........................................ 851,552 851,552 851,552
Retained earnings...................................... 512,593 512,593 512,593
Treasury stock at cost, 20,000 shares.................. (651) (651) (651)
------------ ----------- -------------
Total shareholders' equity..................... 1,369,745 1,369,745 1,369,745
------------ ----------- -------------
Total capitalization........................... $ 1,387,566 $ 2,193,113 $
========= ========= ===========
</TABLE>
- ---------------
(1) Assumes that $793 million of the purchase price for FFMC's acquisition of
Western Union (including $300 million payable in January 1995) is financed
with bank debt under FFMC's unsecured revolving credit facility, which the
Company in November 1994 increased to $1.0 billion from $450 million and
extended with a new three-year term. FFMC's initial borrowing of $493
million for the closing of the purchase of Western Union was for a term of
one month at 5.6%. As of November 16, 1994, the Company's LIBOR-based
borrowing rates under the facility (for terms ranging from one to six
months) range from 5.8% to 6.4%. It has been assumed that the net proceeds
(estimated at $ million) from the $400 million of Debentures being
offered hereby will be used to reduce this bank indebtedness. The pro forma
adjustments to long-term debt (including the current portion) also reflect
the addition of Western Union's existing indebtedness.
(2) The number of shares of Common Stock outstanding does not include (a) 4.6
million shares reserved for issuance pursuant to stock options, stock
appreciation rights or restricted stock awards which have been or may be
granted under FFMC's 1982 Incentive Stock Plan, 1988 Incentive Stock Plan,
Directors' Stock Option Plan and the Directors' Restricted Stock Award Plan
and pursuant to stock options assumed by FFMC in connection with
acquisitions and (b) 1.3 million shares reserved for issuance upon exercise
of FFMC's remaining publicly held warrants. FFMC also has reserved
million shares for issuance upon conversion of the Debentures (based on the
initial conversion price and including Debentures subject to the
Underwriters' over-allotment option).
S-5
<PAGE> 8
DESCRIPTION OF DEBENTURES
The Debentures will be issued under an Indenture (the "Original Indenture")
dated as of December 5, 1994 between the Company and NationsBank of Georgia,
National Association, as Trustee (the "Trustee"), as supplemented by the First
Supplemental Indenture (the "First Supplemental Indenture") dated as of December
5, 1994 between the Company and the Trustee (as so supplemented, the
"Indenture"). The following description of the particular Debentures offered
hereby supplements, and to the extent inconsistent therewith, replaces, the
description of the general terms and provisions of the Debt Securities set forth
in the Prospectus under the caption "Description of Debt Securities." The
Debentures will represent direct, unsecured general obligations of the Company,
convertible into Common Stock as described under "Conversion of Debentures." The
following statements are subject to the detailed provisions of the Indenture and
are qualified in their entirety by reference to the Indenture. References in
italics are to the Original Indenture and the First Supplemental Indenture, as
applicable. Wherever particular provisions of the Indenture are referred to,
such provisions are incorporated by reference as a part of the statements made,
and the statements are qualified in their entirety by such reference.
GENERAL
The Debentures will be direct, unsecured general obligations of the Company
and will rank on a parity with all other indebtedness of the Company which is
not by its terms subordinated to the Debentures. The Debentures will be limited
to $460,000,000 principal amount (including $60,000,000 subject to the
Underwriters' over-allotment option), will be issued in fully registered form
only in denominations of $1,000 or any multiple thereof, and will mature on
December 15, 1999. (Section 201 of the First Supplemental Indenture)
Interest at the annual rate set forth on the cover page of this Prospectus
Supplement is payable semiannually on June 15 and December 15, commencing June
15, 1995, to Holders of record at the close of business on the preceding June 1
and December 1, respectively, and, unless other arrangements are made, will be
paid by check mailed to such Holders. (Section 201 of the First Supplemental
Indenture)
Principal and premium, if any, will be payable, and the Debentures may be
presented for conversion, registration of transfer and exchange, without service
charge, at the Corporate Trust Office of the Trustee in Atlanta, Georgia.
(Sections 201 and 302 of the First Supplemental Indenture)
CONVERSION OF DEBENTURES
The Holders of Debentures will be entitled at any time prior to the close
of business on December 15, 1999, subject to prior redemption, to convert any
Debentures or portions thereof (in denominations of $1,000 or multiples thereof)
into Common Stock of the Company, at the conversion price set forth on the cover
page of this Prospectus Supplement, subject to adjustment as described below.
(Sections 301, 304, 305 and 306 of the First Supplemental Indenture) Except as
described below, no adjustment will be made on conversion of any Debenture for
interest accrued thereon or for dividends on any Common Stock issued upon such
conversion. (Section 302 of the First Supplemental Indenture) If any Debenture
not called for redemption is converted between a record date for the payment of
interest and the next succeeding Interest Payment Date, such Debenture must be
accompanied by funds equal to the interest payable on such succeeding Interest
Payment Date on the principal amount so converted. (Section 302 of the First
Supplemental Indenture) No such additional funds will be required for Debentures
called for redemption and converted. The Company is not required to issue
fractional shares of Common Stock upon conversion of Debentures and, in lieu
thereof, will pay a cash adjustment based upon the market price of the Common
Stock on the last Business Day prior to the date of conversion. (Section 303 of
the First Supplemental Indenture) In the case of Debentures called for
redemption, conversion rights will expire at the close of business on the
redemption date. (Sections 301 and 302 of the First Supplemental Indenture)
The initial conversion price of $ per share of Common Stock is
subject to adjustment (under formulae set forth in the Indenture) in certain
events, including: (i) the issuance of Common Stock as a dividend or
distribution on Common Stock of the Company; (ii) subdivisions and combinations
of the Common Stock, (iii) the issuance to all holders of Common Stock of
certain rights or warrants to purchase
S-6
<PAGE> 9
Common Stock; (iv) the distribution to all holders of Common Stock of shares of
capital stock of the Company (other than Common Stock) or evidences of
indebtedness of the Company or assets (including securities, but excluding those
rights, warrants, dividends and distributions referred to above and dividends
and distributions in connection with the liquidation, dissolution or winding up
of the Company or paid in cash); (v) distributions consisting of cash, excluding
any semiannual cash dividend on the Common Stock to the extent that the
aggregate cash dividend per share of Common Stock in any semiannual period does
not exceed the greater of (x) the amount per share of Common Stock of the next
preceding semiannual cash dividend on the Common Stock to the extent that such
preceding semiannual dividend did not require an adjustment of the conversion
price pursuant to this clause (v) (as adjusted to reflect subdivisions or
combinations of the Common Stock), and (y) 7.5% of the average of the last
reported sale prices of the Common Stock for each of the ten consecutive Trading
Days (as defined in the First Supplemental Indenture) immediately prior to the
date of declaration of such dividend, and excluding any dividend or distribution
in connection with the liquidation, dissolution or winding up of the Company;
and (vi) payment in respect of a Tender Offer (as defined in the First
Supplemental Indenture to cover "traditional tender offers" as determined in
good faith by the Company's Board of Directors) or exchange offer by the Company
or any subsidiary of the Company to all holders of the Common Stock for the
Common Stock to the extent that the cash and value of any other consideration
included in such payment per share of Common Stock exceeds the Current Market
Price (as defined in the First Supplemental Indenture) per share of Common Stock
on the Trading Day next succeeding the last date on which tenders or exchanges
may be made pursuant to such tender or exchange. If any adjustment is required
to be made as set forth in clause (v) above as a result of a distribution that
is a semiannual dividend, such adjustment would be based upon the amount by
which such distribution exceeds the amount of the semiannual cash dividend
permitted to be excluded pursuant to such clause (v). If an adjustment is
required to be made as set forth in clause (v) above as a result of a
distribution that is not a semiannual dividend, such adjustment would be based
upon the full amount of the distribution. (Section 305 of the First Supplemental
Indenture)
No adjustment in the conversion price will be required unless such
adjustment would require a change of at least 1% in the conversion price then in
effect; provided, that any adjustment that would otherwise be required to be
made shall be carried forward and taken into account in any subsequent
adjustment. The Company reserves the right to make such reductions in the
conversion price in addition to those required in the foregoing provisions as
the Company in its discretion shall determine to be advisable in order that
certain stock-related distributions hereafter made by the Company to its
shareholders shall not be taxable. (Section 305 of the First Supplemental
Indenture) Except as stated above, the conversion price will not be adjusted for
the issuance of Common Stock or any securities convertible into or exchangeable
for Common Stock, or carrying the right to purchase any of the foregoing.
In the case of (i) any reclassification or change of the Common Stock, or
(ii) a consolidation, merger, or combination involving the Company or a sale or
conveyance to another corporation of the property and assets of the Company as
an entirety or substantially as an entirety, in each case 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, the Holders of the Debentures then Outstanding will be entitled
thereafter to convert such Debentures into the kind and amount of shares of
stock, other securities or other property or assets which they would have owned
or been entitled to receive upon such reclassification, change, consolidation,
merger, combination, sale or conveyance had such Debentures been converted into
Common Stock immediately prior to such reclassification, change, consolidation,
merger, combination, sale or conveyance assuming that a Holder of Debentures
would not have exercised any rights of election as to the stock, other
securities or other property or assets receivable in connection therewith.
(Section 306 of the First Supplemental Indenture)
In the event of a taxable distribution to holders of Common Stock which
results in an adjustment of the conversion price, the Holders of Debentures may,
in certain circumstances, be deemed to have received a distribution subject to
United States income tax as a dividend; in certain other circumstances, the
absence of such an adjustment may result in a taxable dividend to the holders of
Common Stock.
S-7
<PAGE> 10
OPTIONAL REDEMPTION BY THE COMPANY
The Debentures are not redeemable at the option of the Company prior to
December 15, 1997. At any time on or after that date, the Debentures will be
redeemable, on at least 30 but not more than 60 days' notice, at the option of
the Company, as a whole or in part, at the following prices (expressed as
percentages of the principal amount), together with accrued interest to the date
fixed for redemption (provided that if the Redemption Date is an Interest
Payment Date, interest shall be paid to the Holder of record on the Regular
Record Date with respect to such Interest Payment Date):
If redeemed during the 12-month period beginning December 15:
<TABLE>
<CAPTION>
YEAR PERCENTAGE
------------------------------------------------------------------ ----------
<S> <C>
1997.............................................................. %
1998.............................................................. %
</TABLE>
and 100% if redeemed at maturity. (Section 202 of the First Supplemental
Indenture)
If fewer than all the Debentures are to be redeemed, the Trustee will
select the Debentures to be redeemed by lot or, in its discretion, on a pro rata
basis. If any Debenture is to be redeemed in part only, a new Debenture or
Debentures in principal amount equal to the unredeemed principal portion thereof
will be issued. (Section 202 of the First Supplemental Indenture and Section
1107 of the Original Indenture)
REDEMPTION AT OPTION OF HOLDERS
If, at any time prior to December 15, 1999, there occurs a Fundamental
Change (as defined below), each Holder of Debentures shall have the right, at
the Holder's option, to require the Company to redeem all of such Holder's
Debentures or portions thereof (in denominations of $1,000 or multiples thereof)
on the date (the "Repurchase Date") that is 45 days after the date of the
Company's notice of such Fundamental Change referred to below (or, if not a
Business Day, on the next succeeding Business Day).
The Company shall redeem such Debentures at a price (expressed as
percentages of the principal amount) equal to (i) % if the Repurchase Date is
during the 12-month period beginning December 15, 1994, (ii) % if the
Repurchase Date is during the 12-month period beginning December 15, 1995, (iii)
% if the Repurchase Date is during the 12-month period beginning December 15,
1996, and (iv) after December 14, 1997, the redemption price set forth under
"Optional Redemption by the Company" which would be applicable to a redemption
at the option of the Company on the Repurchase Date; provided that, with respect
to a Fundamental Change described in clause (i) in the definition of Applicable
Price below, if the Applicable Price is less than the Reference Market Price (as
defined below), the Company shall redeem such Debentures at a price equal to the
foregoing redemption price multiplied by the fraction obtained by dividing the
Applicable Price by the Reference Market Price. In each case, the Company shall
also pay accrued interest on the redeemed Debentures to the Repurchase Date
(provided that if the Repurchase Date is an Interest Payment Date, interest
shall be paid to the Holder of record on the Regular Record Date with respect to
such Interest Payment Date). (Section 203 of the First Supplemental Indenture)
The term "Fundamental Change" means the occurrence of any transaction or
event in connection with which all or substantially all the Company's Common
Stock 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 which is not all or substantially all common stock that
is (or, upon consummation of such transaction or event, will be) listed on a
national securities exchange or approved for quotation in the National
Association of Securities Dealers, Inc., Automated Quotation System or any
similar system of automated dissemination of quotations of securities prices.
The term "Applicable Price" means (i) in the event of a Fundamental Change
in which the holders of the 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 sale price for the
Common Stock during the ten Trading Days 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
S-8
<PAGE> 11
Fundamental Change, or, if no such record date, the date upon which the holders
of the Common Stock shall have the right to receive such cash, securities,
property or other assets in connection with the Fundamental Change.
The term "Reference Market Price" shall initially mean $ (which is
equal to 66 2/3% of the closing price of the Common Stock set forth on the cover
page of this Prospectus Supplement) and in the event of any adjustment to the
conversion price described above pursuant to Section 305 of the First
Supplemental Indenture, 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
$ to the conversion price specified on the cover page of this
Prospectus Supplement (without regard to any adjustment thereto).
On or before the 10th day after the occurrence of a Fundamental Change, the
Company shall mail to all Holders of record of the Debentures a notice of the
occurrence of such Fundamental Change and of the redemption right arising as a
result thereof. The Company shall deliver a copy of such notice to the Trustee.
To exercise the redemption right, Holders of Debentures must deliver on or
before the 30th day after the date of such notice by the Company written notice
to the Company (or an agent designated by the Company for such purpose) and the
Trustee of the Holder's exercise of such right, together with the Debentures
with respect to which the right is being exercised, duly endorsed for transfer.
Payment for Debentures surrendered for redemption (and not withdrawn) prior to
the Repurchase Date will be made promptly following the Repurchase Date.
(Section 203 of the First Supplemental Indenture)
The Company will comply with the provisions of Rule 13e-4 and any other
tender offer rules under the Securities Exchange Act of 1934, as amended, which
may then be applicable in connection with the redemption rights of Holders of
the Debentures in the event of a Fundamental Change. The redemption rights of
the Holders of the Debentures could discourage a potential acquiror of the
Company. The Fundamental Change redemption feature, however, is not the result
of management's knowledge of any specific effort to obtain control of the
Company by means of a merger, tender offer, solicitation or otherwise, or part
of a plan by management to adopt a series of anti-takeover provisions.
EVENTS OF DEFAULT AND REMEDIES
An Event of Default is defined in the Indenture as being: default in
payment of the principal of or premium, if any, on any of the Debentures;
default for 30 days in payment of any installment of interest on the Debentures;
default by the Company for 60 days after notice in the observance or performance
of any other covenant in the Indenture (other than a covenant solely for the
benefit of Securities other than the Debentures); or certain events involving
bankruptcy, insolvency or reorganization of the Company. (Section 501 of the
Original Indenture) The Indenture provides that the Trustee may withhold notice
to the Holders of Debentures of any default (except in payment of principal, or
premium, if any, or interest on the Debentures) if the Trustee considers it in
the interest of the Holders of the Debentures to do so. (Section 601 of the
Original Indenture)
The Indenture provides that if any Event of Default shall have occurred and
be continuing with respect to the Debentures, the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Debentures may declare the
principal of all the Debentures to be due and payable immediately, but if the
Company shall cure all defaults (except the nonpayment of interest and premium,
if any, on and principal of any Debentures which shall have become due by
acceleration) and certain other conditions are met, such declaration may be
annulled and past defaults may be waived by the Holders of a majority in
principal amount of the Outstanding Debentures. (Section 502 of the Original
Indenture)
The Holders of a majority in principal amount of the Outstanding Debentures
shall have the right to direct the time, method and place of conducting any
proceedings for any remedy available to the Trustee with respect to the
Debentures subject to certain limitations specified in the Indenture. (Section
512 of the Original Indenture)
S-9
<PAGE> 12
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Debentures, may consolidate with or merge into, or transfer or lease its assets
substantially as an entirety to, any Person which is a corporation, partnership
or trust organized and validly existing under the laws of any domestic
jurisdiction, or may permit any such Person to consolidate with or merge into
the Company or convey, transfer or lease its properties and assets substantially
as an entirety to the Company, provided that any successor Person expressly
assumes the Company's obligations on the Debentures and under the Indenture,
that both immediately before and after giving effect to the transaction no Event
of Default shall have occurred and be continuing, and that certain other
conditions are met. (Section 801 of the Original Indenture)
UNDERWRITERS
Under the terms and subject to the conditions contained in the Underwriting
Agreement dated December , 1994 (the "Underwriting Agreement"), the
Underwriters named below have severally agreed to purchase, and the Company has
agreed to sell to them severally, the respective principal amount of the
Debentures set forth opposite their respective names below:
<TABLE>
<CAPTION>
NAME PRINCIPAL AMOUNT
--------------------------------------------------------------------- ----------------
<S> <C>
Morgan Stanley & Co. Incorporated.................................... $
Bear, Stearns & Co. Inc..............................................
CS First Boston Corporation..........................................
----------------
Total...................................................... $400,000,000
=============
</TABLE>
The Underwriting Agreement provides that the obligation of the several
Underwriters to pay for and accept delivery of the Debentures is subject to,
among other things, approval of certain legal matters by its counsel and certain
other conditions. The Underwriters are committed to take and pay for all of the
Debentures offered hereby if any are taken.
The Company has granted to the Underwriters an option, exercisable within
30 days of the date of the Underwriting Agreement, to purchase up to an
additional $60,000,000 principal amount of Debentures solely for the purpose of
covering over-allotments, if any.
The Underwriters initially propose to offer part of the Debentures to the
public at the public offering price set forth on the cover page hereof, plus
accrued interest, if any, from December , 1994, and part to certain dealers at
a price that represents a concession not in excess of % of the principal
amount of the Debentures. Any Underwriter may allow, and such dealers may
reallow, a concession not in excess of % of the principal amount of the
Debentures to certain other dealers. After the initial offering of the
Debentures, the offering price and other selling terms may from time to time be
varied by the Underwriters.
The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as amended.
The Company has applied for listing of the Debentures on the New York Stock
Exchange.
The Company has agreed that it will not, directly or indirectly, for a
period of 90 days after the date of the Underwriting Agreement, without the
prior written consent of Morgan Stanley & Co. Incorporated on behalf of the
Underwriters, offer, sell, contract to sell or otherwise dispose of any shares
of Common Stock, or any securities convertible into or exchangeable or
exercisable for shares of Common Stock, other than (i) the Debentures offered
hereby, (ii) the Common Stock issuable upon conversion of the Debentures, (iii)
securities issued by the Company in connection with acquisitions by the Company,
provided that no such securities may be issued or sold in a public distribution
during such 90-day period, (iv) shares of Common Stock, options to purchase
Common Stock, or shares of Common Stock issued upon exercise of such options,
granted or purchased (A) under the Company's existing stock option, stock
purchase and stock grant plans, or (B) under such plans that may be adopted by
the Company in the future covering up to an aggregate of
S-10
<PAGE> 13
10 million additional shares of Common Stock, and (v) shares of Common Stock
issuable upon exercise of the Company's outstanding warrants.
Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc. and CS First
Boston Corporation have engaged in transactions with and performed various
investment banking and other services for the Company in the past and may do so
from time to time in the future.
LEGAL MATTERS
The validity of the Debentures offered hereby and the Common Stock issuable
upon conversion of the Debentures will be passed upon for the Company by
Sutherland, Asbill & Brennan, Atlanta, Georgia. Certain legal matters in
connection with the offering will be passed upon for the Underwriters by
Shearman & Sterling, New York, New York. George L. Cohen, a partner in
Sutherland, Asbill & Brennan, is a director of the Company. Attorneys at
Sutherland, Asbill & Brennan participating in matters related to the offering
beneficially owned 14,528 shares of the Company's Common Stock as of December 1,
1994.
S-11
<PAGE> 14
PROSPECTUS
$1,000,000,000
FIRST FINANCIAL MANAGEMENT CORPORATION
DEBT SECURITIES
CONVERTIBLE DEBT SECURITIES
COMMON STOCK
---------------------
The Company may from time to time offer, together or separately, (a) Debt
Securities consisting of debentures, notes and/or other unsecured evidences of
indebtedness, (b) Debt Securities which are convertible into the Company's
Common Stock, $.10 par value ("Common Stock"), and (c) shares of its Common
Stock (the Debt Securities (including any that are convertible) and the Common
Stock are referred to herein together as the "Securities"). The Securities
offered pursuant to this Prospectus may be issued at an aggregate public
offering price not to exceed $1,000,000,000 (or the equivalent thereof if any of
the Debt Securities are denominated in a currency, currency unit or composite
currency ("Currency") other than the U.S. dollar), at prices and on terms to be
determined at the time of sale. The accompanying Prospectus Supplement sets
forth the terms of any Securities in respect of which this Prospectus is being
delivered (i) in the case of Debt Securities, the title, aggregate principal
amount, denominations, maturity, interest rate, if any (which may be fixed or
variable), and time of payment of any interest, any terms for redemption at the
option of the Company or the holder, any terms for sinking fund payments, any
listing on a securities exchange, the initial public offering price, the terms,
if any, for conversion of any Debt Securities into the Common Stock, and any
other terms in connection with the offering and sale of such Debt Securities,
and (ii) in the case of Common Stock, the number of shares of Common Stock and
the terms of the offering thereof.
The Company may sell Securities to or through underwriters, and also may
sell Securities directly to other purchasers or through agents. Such
underwriters may include Morgan Stanley & Co. Incorporated or may be a group of
underwriters represented by firms including such firm. Such firm may also act as
agent. The accompanying Prospectus Supplement sets forth the names of any
underwriters, dealers or agents involved in the sale of any Securities in
respect of which this Prospectus is being delivered, the principal amounts or
the number of shares, as applicable, if any, to be purchased by underwriters and
the applicable commissions or compensation, if any, of such underwriters or
agents.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
---------------------
THE DATE OF THIS PROSPECTUS IS DECEMBER 5, 1994
<PAGE> 15
NO PERSON IS AUTHORIZED BY THE COMPANY TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS AND ANY PROSPECTUS
SUPPLEMENT IN CONNECTION WITH THE OFFER MADE BY THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN SO AUTHORIZED. THIS
PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY
JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION. EXCEPT WHERE OTHERWISE INDICATED, THIS PROSPECTUS AND ANY
PROSPECTUS SUPPLEMENT SPEAK AS OF THE RESPECTIVE DATE OF SUCH DOCUMENT. NEITHER
THE DELIVERY OF THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT NOR ANY SALE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
AVAILABLE INFORMATION
First Financial Management Corporation ("FFMC") is subject to the
informational requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and, in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "SEC"). Such reports, proxy statements and other information filed by FFMC
may be inspected and copied at the public reference facilities maintained by the
SEC at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
SEC's Regional Offices located at Seven World Trade Center, 13th Floor, New
York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661. Copies of such materials can be obtained by mail from the Public
Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates. In addition, such material may be inspected and copied at
the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005, where FFMC's Common Stock is listed, and certain other securities
offered hereby may be listed.
FFMC has filed with the SEC a registration statement on Form S-3 (herein,
together with all amendments and exhibits, referred to as the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act").
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the SEC. For further information, reference is
hereby made to the Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the SEC (File No. 1-10442) pursuant to
the Exchange Act are incorporated herein by reference: (1) FFMC's Annual Report
on Form 10-K for the year ended December 31, 1993; (2) FFMC's Quarterly Reports
on Form 10-Q for the quarters ended March 31, June 30, and September 30, 1994;
(3) FFMC's Current Report on Form 8-K, dated November 4, 1994, reporting the
then proposed acquisition of Western Union Financial Services, Inc.; (4) FFMC's
Current Report on Form 8-K, dated as of November 15, 1994, reporting the
consummation of the acquisition of Western Union Financial Services, Inc. and
related assets; and (5) the description of FFMC's Common Stock contained in its
Registration Statement on Form 8-A, filed on January 16, 1990, as updated by
Item 2, Part II to FFMC's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1990 and information contained in Note I to the financial statements
included in FFMC's Annual Report on Form 10-K for the year ended December 31,
1993.
All documents filed by FFMC pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Securities shall be deemed to be incorporated
by reference in this Prospectus and to be a part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of the Registration Statement or this Prospectus to the extent that
a statement contained herein, in a Prospectus Supplement or in any other
document subsequently filed with the SEC which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of the Registration Statement or this
Prospectus.
FFMC will provide without charge to each person to whom a copy of this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the documents which are incorporated herein by reference, other
than exhibits to such documents (unless such exhibits are specifically
incorporated by reference into such documents). Requests should be directed to
FFMC, 3 Corporate Square, Suite 700, Atlanta, Georgia 30329, Attention: Randolph
L.M. Hutto, Executive Vice President and General Counsel, telephone (404)
321-0120.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE SECURITIES
OFFERED HEREBY AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. FOR THE COMMON STOCK AND ANY OTHER SECURITIES LISTED ON THE NEW YORK
STOCK EXCHANGE, SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE
OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
<PAGE> 16
THE COMPANY
First Financial Management Corporation ("FFMC" or the "Company") is a
national leader in information services, offering a vertically integrated set of
data processing, storage and management services and products for the capture,
manipulation and distribution of data. FFMC operates in a single business
segment and continues to pursue further integration of its services and products
to gain competitive advantages. Similarities exist among its integrated
businesses in the methods of providing services, in the customers served, and in
the marketing activities utilized to obtain new customers. Services include
merchant and consumer payment services (involving credit cards, debit cards,
checks and nonbank immediate money transfers); debt collection and accounts
receivable management; data imaging, micrographics and electronic database
management; health care claims processing and integrated management and cost
containment services; and the development and marketing of data communications
and information processing systems, including in-store marketing programs and
systems for supermarkets. The Company's principal executive office is at 3
Corporate Square, Suite 700, Atlanta, Georgia 30329 (telephone (404) 321-0120).
RECENT ACQUISITION OF WESTERN UNION MONEY TRANSFER BUSINESS
On September 19, 1994, FFMC was declared the winning bidder to acquire
Western Union Financial Services, Inc. ("Western Union") in bankruptcy
proceedings of Western Union's parent company, New Valley Corporation ("New
Valley"), in the U.S. Bankruptcy Court for the District of New Jersey. FFMC
entered into a Purchase Agreement with New Valley dated as of October 20, 1994,
as amended on November 14, 1994 (the "Purchase Agreement") to purchase all of
the stock of Western Union, as well as certain assets of New Valley relating to
the money transfer business conducted by Western Union. The Purchase Agreement
provided for a cash purchase price of $893,223,000 plus assumption by FFMC of
the Western Union Pension Plan, as to which benefit accruals were permanently
suspended in 1988. Of the cash portion of the purchase price, $593,223,000 was
paid on November 15, 1994, and $300,000,000 will be paid in January 1995. The
Purchase Agreement permitted Western Union to declare a dividend of $117,895,434
prior to the closing. The closing of the acquisition was consummated on November
15, 1994 (the "Closing Date").
The Purchase Agreement requires New Valley to indemnify FFMC for certain
losses arising (within eighteen months after the Closing Date in most instances
and longer, to the extent of the applicable statute of limitations, in other
instances) from a breach of any covenants, representations and warranties of New
Valley. Subject to certain exceptions, such liability will not apply until
losses exceed $2.5 million and will be limited to $45 million. A portion of the
cash purchase price ($45 million) has been placed in escrow for thirty months
following the Closing Date and will be available to satisfy any such
indemnification obligations of New Valley, subject to reduction of the escrow
amount by up to $20 million upon payment of any related purchase price
adjustment, and subject to further reduction of up to $18 million at the end of
the eighteenth month following the Closing Date.
Pursuant to the Purchase Agreement, on the Closing Date, FFMC, Western
Union and New Valley entered into certain related agreements providing for: a
license to New Valley to use the Western Union name and trademark in its
messaging business; the furnishing by Western Union to New Valley of certain
sales, marketing and other services related to the messaging business and other
consulting and administrative services; options granting FFMC the right to
purchase from New Valley, and New Valley the right to sell to FFMC, the
messaging business of New Valley for a purchase price of $20 million in cash
during the first quarter of 1996; and the payment by New Valley to FFMC or
Western Union of certain royalties and fees for such license and services.
USE OF PROCEEDS
Unless otherwise indicated in an accompanying Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Securities for the
reduction of the bank indebtedness used for FFMC's acquisition of Western Union
and related assets and may also use a portion of the proceeds for other general
corporate purposes, including possible acquisitions. In connection with its
acquisition of Western Union and related assets, FFMC has borrowed $493 million
and expects to borrow approximately $300 million in January
3
<PAGE> 17
1995 under its revolving bank credit facility. See "Recent Acquisition of
Western Union Money Transfer Business" and "Business of the Company -- Recently
Acquired Business of Western Union" (which describes the acquired money transfer
business).
PRICE RANGE OF COMMON STOCK AND DIVIDEND POLICY
The Company's Common Stock is traded on the New York Stock Exchange
("NYSE") under the symbol "FFM." The following table sets forth high and low
prices for the Common Stock during the periods indicated as reported by the
NYSE.
<TABLE>
<CAPTION>
CALENDAR YEAR HIGH LOW
---------------------------------------------------------------- ---- ---
<S> <C> <C>
1992
First Quarter......................................... $33 1/8 $263/8
Second Quarter........................................ 29 7/8 24 3/4
Third Quarter......................................... 35 5/8 29 3/4
Fourth Quarter........................................ 44 5/8 31 1/2
1993
First Quarter......................................... 44 1/4 38 1/4
Second Quarter........................................ 42 3/8 36
Third Quarter......................................... 55 1/8 42 3/8
Fourth Quarter........................................ 58 1/2 50 1/2
1994
First Quarter......................................... 60 1/8 51 1/8
Second Quarter........................................ 59 1/8 52 3/8
Third Quarter......................................... 62 52
Fourth Quarter (through December 2)................... 61 1/4 53 3/4
</TABLE>
In 1989, the Company established a policy of making semiannual dividend
payments to shareholders, and the Company's Board of Directors has since
declared semiannual cash dividends of $.05 per share. The Company expects to pay
future cash dividends semiannually depending upon the Company's pattern of
growth, profitability, financial condition and other factors that the Board of
Directors may deem appropriate.
4
<PAGE> 18
FIRST FINANCIAL MANAGEMENT CORPORATION
PRO FORMA COMBINED FINANCIAL STATEMENTS
The accompanying unaudited pro forma combined financial statements conform
to the presentation format of FFMC's financial statements. The pro forma
combined balance sheet and statements of income reflect the combined financial
position and results of operations of FFMC and Western Union.
The pro forma combined balance sheet at September 30, 1994 assumes that the
acquisition of Western Union and related assets occurred on that date. The pro
forma combined statements of income assume that the acquisition was completed on
January 1, 1993.
The pro forma combined statements of income assume that the Western Union
acquisition is financed with the net proceeds (estimated at $396 million) of the
$400 million of senior convertible debentures offered by this Prospectus and
accompanying Prospectus Supplement (dated the same date as this Prospectus)
combined with borrowings under the Company's revolving credit facility. If
suitable conditions arise, FFMC may use additional debt instruments or other
securities as the ultimate source of financing for the Western Union
acquisition, which may have higher average interest rates.
The pro forma combined financial information is not necessarily indicative
of the results which actually would have occurred had the transaction been in
effect on the dates and for the periods indicated or which may result in the
future. The pro forma combined financial statements and notes thereto should be
read in conjunction with the historical financial statements and notes thereto
of FFMC and Western Union, which are incorporated herein by reference.
5
<PAGE> 19
FIRST FINANCIAL MANAGEMENT CORPORATION
PRO FORMA COMBINED BALANCE SHEET (UNAUDITED)
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
SEPTEMBER 30, 1994
-----------------------------------------------------------
PRO FORMA
ADJUSTMENTS
FFMC WESTERN UNION INCREASE PRO FORMA
(HISTORICAL) (HISTORICAL)(1) (DECREASE) COMBINED
------------ ------------- ----------- ----------
<S> <C> <C> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents............... $ 181,593 $ 239,045 $ (224,932)(2) $ 195,706
Accounts receivable, net................ 401,463 4,291 (2,765)(3) 402,989
Prepaid expenses and other current
assets............................... 103,612 22,296 (1,073)(3) 124,835
------------ ------------- ----------- ----------
Total Current Assets............ 686,668 265,632 (228,770) 723,530
Property and equipment, net............... 141,380 23,632 4,324(3) 169,336
Excess of cost over fair value of assets
acquired, net........................... 674,095 2,591 1,080,723(4) 1,757,409
Customer contracts, net................... 153,643 153,643
Other assets.............................. 137,539 6,768 53,479(4) 197,786
------------ ------------- ----------- ----------
$ 1,793,325 $ 298,623 $ 909,756 $3,001,704
========= =========== ========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current Liabilities:
Accounts payable and accrued expenses... $ 318,153 $ 180,021 $ 13,657(5) $ 505,248
(6,583)(3)
Income taxes payable.................... 16,717 16,717
Current portion of long-term debt....... 10,334 7,366 (5,059)(3) 12,641
------------ ------------- ----------- ----------
Total Current Liabilities....... 345,204 187,387 2,015 534,606
Long-term debt, less current portion...... 7,487 7,271 397,223(6) 414,727
2,746(3)
Senior Convertible Debentures............. 400,000(6) 400,000
Deferred income taxes payable............. 58,021 (58,021)(4)
Other liabilities......................... 12,868 2,535 266,000(4) 282,626
1,223(3)
------------ ------------- ----------- ----------
Total Liabilities............... 423,580 197,193 1,011,186 1,631,959
------------ ------------- ----------- ----------
Shareholders' Equity:
Common Stock............................ 6,251 6,251
Paid-in capital......................... 851,552 53,099 (53,099)(7) 851,552
Retained earnings....................... 512,593 48,331 (48,331)(7) 512,593
Treasury stock at cost.................. (651) (651)
------------ ------------- ----------- ----------
Total Shareholders' Equity...... 1,369,745 101,430 (101,430)(7) 1,369,745
------------ ------------- ----------- ----------
$ 1,793,325 $ 298,623 $ 909,756 $3,001,704
========= =========== ========= =========
</TABLE>
See notes to pro forma combined financial statements.
6
<PAGE> 20
FIRST FINANCIAL MANAGEMENT CORPORATION
PRO FORMA COMBINED STATEMENT OF INCOME (UNAUDITED)
NINE MONTHS ENDED SEPTEMBER 30, 1994
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
PRO FORMA
ADJUSTMENTS
FFMC WESTERN UNION INCREASE PRO FORMA
(HISTORICAL) (HISTORICAL)(1) (DECREASE) RESULTS
------------ --------------- ----------- ----------
<S> <C> <C> <C> <C>
Revenues
Service revenues........................ $ 1,446,506 $ 401,365 $ (10,933) (8) $1,836,938
Product sales........................... 53,695 53,695
Other................................... 2,765 2,765
------------ --------------- ----------- ----------
1,502,966 401,365 (10,933) 1,893,398
------------ --------------- ----------- ----------
Expenses
Operating............................... 1,208,143 326,790 (9,354) (8) 1,511,735
(13,844) (9)
General and administrative.............. 20,515 20,515
Cost of products sold................... 33,482 33,482
Depreciation and amortization........... 69,194 6,717 21,063(10) 96,974
Interest, net........................... (4,616) 36,174(11) 31,558
Cost of Western Union Pension Plan...... 13,763(12) 13,763
------------ --------------- ----------- ----------
1,326,718 333,507 47,802 1,708,027
------------ --------------- ----------- ----------
Income before income taxes.............. 176,248 67,858 (58,735) 185,371
Income taxes............................ 71,990 24,238 (19,393)(13) 76,835
------------ --------------- ----------- ----------
Net income...................... $ 104,258 $ 43,620 $ (39,342) $ 108,536
========= =========== ========= =========
Earnings per common share................. $ 1.67 $ 1.72
========= =========
Average common shares outstanding......... 62,570 5,333(14) 67,903
</TABLE>
See notes to pro forma combined financial statements.
7
<PAGE> 21
FIRST FINANCIAL MANAGEMENT CORPORATION
PRO FORMA COMBINED STATEMENT OF INCOME (UNAUDITED)
YEAR ENDED DECEMBER 31, 1993
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
PRO FORMA
ADJUSTMENTS
FFMC WESTERN UNION INCREASE PRO FORMA
(HISTORICAL) (HISTORICAL)(1) (DECREASE) RESULTS
------------ --------------- ----------- ----------
<S> <C> <C> <C> <C>
Revenues
Service revenues........................ $ 1,543,004 $ 437,410 $ (17,448)(8) $1,962,966
Product sales........................... 116,798 116,798
Other................................... 9,866 9,866
------------ --------------- ----------- ----------
1,669,668 437,410 (17,448) 2,089,630
------------ --------------- ----------- ----------
Expenses
Operating............................... 1,283,839 391,521 (13,020)(8) 1,643,267
(19,073)(9)
General and administrative.............. 23,870 23,870
Cost of products sold................... 70,570 70,570
Depreciation and amortization........... 75,926 8,937 27,918(10) 112,781
Write-down of goodwill and investment... 3,250 3,250
Interest, net........................... (294) 47,471(11) 47,177
Cost of Western Union Pension Plan...... 20,788(12) 20,788
------------ --------------- ----------- ----------
1,453,911 403,708 64,084 1,921,703
------------ --------------- ----------- ----------
Income before income taxes................ 215,757 33,702 (81,532) 167,927
Income taxes.............................. 88,112 12,813 (30,350)(13) 70,575
------------ --------------- ----------- ----------
Net income...................... $ 127,645 $ 20,889 $ (51,182) $ 97,352
========= =========== ========= =========
Earnings per common share................. $ 2.10 $ 1.60
========= =========
Average common shares outstanding......... 60,845 60,845
</TABLE>
See notes to pro forma combined financial statements.
8
<PAGE> 22
FIRST FINANCIAL MANAGEMENT CORPORATION
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS (UNAUDITED)
(1) Certain reclassifications have been made to conform the balance sheet and
statement of income presentation formats for Western Union to the formats
used by FFMC.
(2) The adjustment to cash and cash equivalents reflects: (a) a permitted
dividend of approximately $118 million paid by Western Union to New Valley
at or prior to closing, (b) approximately $6 million paid by Western Union
to New Valley as a net settlement of intercompany accounts as of September
30, 1994, (c) FFMC's use of $100 million of its cash in the acquisition of
Western Union and related assets, and (d) the assumed payment by FFMC of $1
million in cash for the estimated transaction costs (exclusive of the
underwriting discount) related to the senior convertible debentures.
(3) At closing certain transfers of assets and liabilities occurred between
Western Union and New Valley as follows:
Messaging business assets and liabilities were transferred from Western
Union to New Valley. Equipment and other capital assets and related
liabilities relating to ongoing operations were transferred from New
Valley to Western Union. New Valley assumed a $5.4 million note payable
to Datek-InstaCard, Inc. and related liabilities and assumed all
responsibilities related to current litigation between Western Union and
Datek-InstaCard, Inc.
The net effect of the transfers was to increase Western Union net
assets by $8.2 million.
(4) Adjustment for the allocation of purchase price to the fair value of assets
acquired and liabilities assumed. It is assumed that historical amounts
approximate fair value for tangible and identified intangible assets
acquired. Such allocations are based upon current estimates which will be
subsequently adjusted based upon final determination of the fair values of
assets acquired and liabilities assumed as of the closing date. The excess
of cost over fair value of net assets acquired (see Note (7) below) is as
follows (dollars in millions):
<TABLE>
<S> <C>
Cash purchase price................................................ $ 893.2
Western Union Pension Plan liability assumed....................... 266.0
Acquisition costs.................................................. 28.0
Less deferred tax asset related to Western Union Pension Plan
liability........................................................ (106.5)
--------
$1,080.7
=======
</TABLE>
The adjustment to other assets reflects: (a) a deferred tax asset related
to the Western Union Pension Plan liability of $106.5 million, less (b) the
reclassification of FFMC's deferred tax liability of $58.0 million, plus
(c) estimated transaction costs of $5 million related to the senior
convertible debentures.
(5) Elimination of intercompany payable to New Valley ($14.3 million) through
either payment or contribution to capital, and establishment of accrual for
estimated acquisition costs ($28 million). See Note (4) above.
(6) Long-term debt related to acquisition consisting of $400 million in senior
convertible debentures and $397 million in bank debt (cash purchase price
including deferred portion payable in January 1995), and $4 million for the
estimated underwriting discount on the senior convertible debentures.
(7) Elimination of shareholders' equity of Western Union. The effect of all the
above adjustments, prior to applying the adjustment in Note (4) above, was
to reduce shareholder's equity of Western Union to zero.
(8) Adjustments to reflect the elimination of messaging business revenue and
related expense because such business has been retained by New Valley.
Income before income taxes related to the messaging business was $4.4
million for the year ended December 31, 1993 and $1.6 million for the nine
months ended September 30, 1994.
9
<PAGE> 23
FIRST FINANCIAL MANAGEMENT CORPORATION
NOTES TO PRO FORMA COMBINED FINANCIAL STATEMENTS (UNAUDITED) -- (CONTINUED)
(9) Adjustments to eliminate royalty and other fees paid to New Valley which
will not continue after the acquisition.
(10) Adjustments to reflect the amortization of the excess of cost over fair
value of assets acquired, using a straight-line method over 40 years.
Adjustments have also been made to reflect depreciation on equipment and
other capital assets transferred to Western Union from New Valley.
(11) Adjustments to reflect additional interest expense (and the amortization of
estimated transaction costs of $5 million) related to $400 million in
senior convertible debentures and additional interest expense related to
$397 million in bank debt used to finance most of the cash purchase price
and interest foregone on $100 million of FFMC cash used. Interest expense
includes the senior convertible debentures at an estimated rate of 4.50%,
and bank debt under the Company's revolving credit facility at a rate of
6.4%, the rate currently available under such facility for a six-month
term. The current rate under the revolving credit facility is higher than
the comparable average rates in 1993 of 3.6% and the first nine months of
1994 of 4.9%. Interest foregone on FFMC cash used is based on investment
rates earned by the Company in 1993 (3.0%) and 1994 (3.8%).
Interest rates under the revolving credit facility fluctuate, and the
senior convertible debenture rate is an estimate. The impact of a 1/8
percent increase in the rate on overall borrowings would be approximately
$1 million of additional interest expense for the year ended December 31,
1993 and $750,000 for the nine months ended September 30, 1994.
(12) Adjustments to reflect the net periodic pension cost under the Western
Union Pension Plan, as to which benefit accruals were permanently suspended
in 1988. The 1993 amount is based on actuarial assumptions and was
previously reported in New Valley's 1993 Annual Report on Form 10-K. The
1994 amount is based on similar actuarial assumptions.
(13) Tax effect of pro forma adjustments. The tax computation includes the
deductibility of the majority of goodwill amortization. New Valley has
agreed to make the necessary tax elections to allow the deductibility by
FFMC of goodwill, except for that portion associated with the assumption of
the Western Union Pension Plan which is deductible for tax purposes when
paid. Additionally, a pro forma adjustment has been made to increase
Western Union's state income tax from its historical rate to a rate which
excludes the benefit it received from using New Valley's tax loss
carryforwards in calculating its state income taxes.
(14) Shares assumed to have been issued to reflect the assumed conversion of
FFMC's $400 million senior convertible debentures into FFMC Common Stock
solely for purposes of computing earnings per common share for the nine
months ended September 30, 1994. An assumed conversion price of $75.00 per
share was used based on a current market price of approximately $60 per
share and an assumed conversion premium of 25%. Interest expense (including
amortization of estimated transaction costs), net of tax effect, from the
senior convertible debentures (using an assumed rate of 4.50%) was added to
net income in calculating earnings per common share.
The calculation of earnings per common share for the year ended December
31, 1993 does not reflect an assumed conversion of the $400 million senior
convertible debentures into FFMC Common Stock (or the corresponding
restoration of the related after tax interest expense to net income)
because the effect of those adjustments for such period would be
anti-dilutive.
10
<PAGE> 24
SELECTED FINANCIAL DATA
(IN THOUSANDS EXCEPT RATIOS AND PER SHARE DATA)
The following data should be read in conjunction with the Company's
financial statements and related notes thereto, which are included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1993 and
Quarterly Report on Form 10-Q for the nine months ended September 30, 1994, and
the Company's "Management's Discussion and Analysis of Financial Condition and
Results of Operations." FFMC has made various acquisitions (accounted for as
purchases) during the periods which affect the comparability of information
presented. In addition, in 1992 the Company disposed of one of its two business
segments and recorded a loss in another business unit that was sold. For
additional information concerning the Company's acquisitions and dispositions,
see Notes B and C, respectively, to the Company's consolidated financial
statements included in the Company's Annual Report on Form 10-K for the year
ended December 31, 1993. The selected financial data presented below as of and
for the nine months ended September 30, 1994 and 1993 are derived from the
unaudited financial statements of FFMC and, in the opinion of management,
reflect all adjustments necessary to present fairly the information contained
therein. Results for the nine months ended September 30, 1994 are not
necessarily indicative of results to be expected for the full year. The data set
forth below also should be read in conjunction with the financial statements of
Western Union included in the Company's Current Report on Form 8-K filed on
November 4, 1994 and incorporated herein by reference, and the pro forma
combined financial statements included herein with respect to the Company's
acquisition of such business.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
----------------------- ----------------------------------------------------------------
1994(1) 1993(1) 1993 1992 1991 1990 1989
---------- ---------- ---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Revenues......................... $1,502,966 $1,230,735 $1,669,668 $1,425,256 $1,057,518 $ 816,268 $ 606,685
Expenses......................... 1,326,718 1,086,049 1,453,911 1,360,150(2) 952,875 737,114 537,344
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income from Continuing Operations
Before Income Taxes............ 176,248 144,686 215,757 65,106 104,643 79,154 69,341
Income Taxes..................... 71,990 59,230 88,112 46,294 41,912 31,477 29,976
---------- ---------- ---------- ---------- ---------- ---------- ----------
Income from Continuing
Operations................... $ 104,258 $ 85,456 $ 127,645 $ 18,812 $ 62,731 $ 47,677 $ 39,365
========= ========= ========= ========= ========= ========= =========
PER SHARE DATA:
Income Per Common Share --
Continuing Operations
Primary........................ $ 1.67 $ 1.38 $ 2.10 $ 0.32(2) $ 1.32 $ 1.17 $ 1.06
Fully Diluted.................. 1.67 1.38 2.10 0.32(2) 1.23 1.10 1.01
WEIGHTED AVERAGE COMMON SHARES
OUTSTANDING
Primary.......................... 62,545 61,899 60,796 58,874 47,400 40,812 37,223
Fully Diluted.................... 62,570 61,946 60,845 59,058 53,035 48,110 44,916
Ratio of Earnings to Fixed
Charges(3)(4).................. 16.34 13.23 13.76 3.61 4.87 3.42 3.51
BALANCE SHEET DATA (AT END OF
PERIOD):
Total Assets..................... $1,793,325 $1,626,143 $1,554,661 $1,296,994 $1,105,216 $1,027,219
Long-Term Debt, including Current
Portion........................ 17,821 14,713 155,255 152,057 207,785 202,804
Convertible Subordinated
Debentures(5).................. 166,834 172,500
Total Shareholders' Equity....... 1,369,745 1,247,964 1,119,892 997,536 600,671 500,829
</TABLE>
- ---------------
(1) Nine month results include the results of GENEX Services, Inc. which was
acquired by the Company in July 1994 and was accounted for as a pooling of
interests. Financial data for other periods has not been restated because
the impact of GENEX amounts on consolidated amounts was not material.
(2) Includes loss in business unit sold of $79,567 ($1.10 after-tax loss per
share).
(3) For the purpose of calculating the ratio of earnings to fixed charges,
earnings consist of income from continuing operations before income taxes
and fixed charges. Interest expense plus an estimate of the portion of rent
that represents interest constitute the fixed charges.
(4) Based upon the unaudited pro forma results reflected in the unaudited pro
forma combined statements of income included herein, the ratio of earnings
to fixed charges would have been 3.56 for the year ended December 31, 1993
and would have been 4.77 for the nine months ended September 30, 1994. The
pro forma data reflects the Company's acquisition of Western Union and
related assets. See "Recent Acquisition of Western Union Money Transfer
Business."
(5) These Convertible Subordinated Debentures were issued in July 1988 and
redeemed in October 1991.
11
<PAGE> 25
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
CONTINUING AND DISCONTINUED OPERATIONS AND STRATEGIC TRANSACTIONS
The continuing operations of FFMC consist of its information services
businesses together with the corporate entity. These businesses provide a
vertically integrated set of data processing, storage and management products
for the capture, manipulation and distribution of information. Similarities
exist among these businesses in the methods of providing services, in the
customers served, and in the marketing activities utilized to obtain new
customers. In addition, the Company continues to pursue further integration of
its product and service offerings to gain competitive advantages. During the
periods covered services included merchant credit card authorization, processing
and settlement; check guarantee and verification; debt collection and accounts
receivable management; data imaging, micrographics and electronic data base
management; health care claims processing and integrated management and cost
containment services; and the development and marketing of data communication
and information processing systems, including in-store marketing programs and
systems for supermarkets.
Discontinued operations consist of the Company's previous financial
services businesses, comprised of Georgia Federal Bank, FSB and its subsidiaries
("Georgia Federal"), formerly the largest thrift institution in Georgia,
together with First Family Financial Services ("First Family"), which previously
was Georgia Federal's regional consumer finance subsidiary.
FFMC consummated several significant business transactions in 1993 that
resulted from the Company's strategic reevaluation of its businesses completed
during 1992. During the fourth quarter of 1992, the Company entered into
agreements to sell First Family and Georgia Federal. These sales were
consummated on November 10, 1992 and June 12, 1993, respectively. FFMC also
agreed to sell Basis Information Technologies, Inc. ("Basis") during 1992's
fourth quarter. Basis was the unit within the Company's information service
businesses that provided data processing services to financial institutions. The
sale of Basis was consummated on February 10, 1993.
The terms of both the Georgia Federal and Basis sale agreements provided
that the results of operations of these businesses after December 31, 1992
accrued to the respective purchasers. Accordingly, the Company's financial
results do not include results for these businesses for the year ended December
31, 1993.
Prior to entering into the agreement for the sale of Basis, the Company
discontinued software development and wrote off related costs for a major
product line in connection with the settlement of litigation with a vendor, the
combination of which resulted in income of $13.8 million included in other
revenues. Concurrently, the Company decided to explore the sale of Basis. In
reviewing the potential market value of Basis, FFMC's management determined that
a write-down of the carrying value of Basis' net assets was appropriate.
Accordingly, the Company in 1992 recognized a pretax loss of $79.6 million, an
after-tax loss of $1.10 per share. Revenues attributable to Basis were $113.8
million in 1992 and its contribution to income before income taxes, aside from
the items mentioned above, was approximately $4.5 million.
In August 1993, FFMC completed its merger with International Banking
Technologies, Inc. ("IBT"). This business combination has been accounted for as
a pooling of interests and, accordingly, the following discussions include IBT
as a part of FFMC's continuing operations for all periods presented.
On July 21, 1994, FFMC issued 1,095,000 unregistered shares of its common
stock and assumed stock options for an additional 163,000 shares as
consideration for all of the outstanding shares and stock options of GENEX
Services, Inc. ("GENEX"), a company that provides workers' compensation programs
to self-insured employers, insurance companies, third party administrators, and
government agencies throughout the United States, Puerto Rico, and Canada. This
combination has been accounted for as a pooling of interests. The following
discussions concerning the Company's results of operations for the nine months
ended September 30, 1994 and 1993 include GENEX as a part of FFMC's business
operations. Other periods have not been restated because the impact of GENEX
operations on consolidated results was not material.
12
<PAGE> 26
On September 19, 1994, FFMC was declared the winning bidder to acquire
Western Union and related assets in the bankruptcy proceedings of Western
Union's parent company, New Valley. On November 1, 1994, the United States
Bankruptcy Court for the District of New Jersey approved the sale of Western
Union and related assets to FFMC pursuant to a Purchase Agreement, dated October
20, 1994, between New Valley and FFMC.
The Purchase Agreement provides for FFMC's acquisition of the stock of
Western Union and certain other assets from New Valley for a cash purchase price
of $893 million plus the assumption by FFMC of the Western Union pension plan,
as to which benefit accruals were permanently suspended in 1988. The Purchase
Agreement provides the Company with ownership of the Western Union name and
trademark, and includes Western Union's money transfer and payment services
business with an established network of over 24,000 agents in over 75 countries.
In 1993, Western Union completed over 40 million money transfers involving the
movement of over $7.8 billion. New Valley retained ownership of the Western
Union messaging business, and FFMC obtained from New Valley an option to acquire
and granted to New Valley an option to sell to FFMC this business in 1996 for
$20 million in cash.
The Company closed the acquisition of Western Union on November 15, 1994
upon payment of $593 million in cash at closing, with a deferred cash payment of
$300 million in January 1995. The business combination will be accounted for as
a purchase, and the results of Western Union will be included with the Company's
results from the effective date of the acquisition.
The impact of the debt incurred to finance the Western Union acquisition is
described under "Capital Resources and Liquidity." The Company does not believe
the acquisition will have any significant impact on the Company's liquidity.
Western Union's operations have been experiencing strong revenue and profit
growth and are not expected to require significant capital expenditures. As a
result, it is anticipated that these operations will provide substantial cash
flow, contributing to the Company's ability to service the debt incurred to
finance this acquisition.
RESULTS OF OPERATIONS
The following discussions pertain to the Company's continuing operations.
For the Nine Months Ended September 30, 1994 and 1993
For the nine months ended September 30, 1994, the Company reported net
income of $104.3 million, a 22% increase over the $85.5 million for the
comparable 1993 period. Revenues were $1,503.0 million compared with $1,230.7
million in 1993's first nine months, an increase of 22%. Earnings per share for
the nine months ended September 30, 1994 increased 21% to $1.67 per share from
the $1.38 per share reported for the first nine months of 1993.
Record new business (contracted in the latter half of 1993 and during 1994)
together with the assimilation of acquisitions contributed to the Company's
revenue growth. Internal growth was 16% for the first nine months of 1994, and
was the principal component of the overall revenue increases compared with the
first nine months of 1993. Over 40,000 new customers have been added during the
first nine months of 1994, with the majority occurring in FFMC's merchant
services area.
The Company's emphasis on the growth of service revenues is reflected in
the 27% increase during 1994's first nine months compared with the same period
in 1993. This rate of increase compares with a 25% increase in operating
expenses in the 1994 period compared with the 1993 period, as FFMC continues to
place important emphasis on expense controls. The favorable impact occurred
despite the fact that the strongest growth in service revenues occurred in
FFMC's merchant credit card processing, an area that has a margin lower than the
Company's overall margin.
Product sales declined during the first nine months of 1994 compared with
the similar 1993 period, largely as a result of the Company's decisions to
eliminate certain ancillary product sales in its imaging businesses and decrease
the significance of one-time product sales in its merchant businesses. Changes
in the
13
<PAGE> 27
composition of product sales resulted in a gross profit percentage on product
sales of 37.6% during the first nine months of 1994 compared with 39.2% for the
first nine months of 1993.
General and administrative expenses increased in the first nine months of
1994 compared with the same period in 1993, due primarily to the amortization of
stock compensation costs in 1994's second and third quarters from an executive
employment agreement (covering 1995 through 1999) entered into on March 22,
1994. Depreciation and amortization expense increased in the 1994 period
compared with 1993's first nine months due primarily to the impact of
acquisitions completed in the second half of 1993 and 1994's first six months.
The Company moved to a net interest income position during the first nine months
of 1994 from a net interest expense position in 1993's first nine months as a
result of the Company's repayment of all outstanding bank borrowings near the
end of 1993's second quarter using cash generated from the sales of businesses
during the first six months of 1993 and strong cash flow from operations. These
changes produced an increase in total expenses of 22% for the first nine months
of 1994 compared with the prior year period.
The combination of these revenue and expense changes resulted in a pre-tax
margin of 11.7% for 1994's first nine months compared with a pre-tax margin of
11.8% for the first nine months of 1993. The Company's effective tax rate for
the first nine months of 1994 was 40.8%, comparable to the 40.9% for 1993's
first nine months.
1993 Compared with 1992
FFMC's revenues increased 17% to $1.7 billion in 1993 from $1.4 billion in
the prior year. Excluding Basis' 1992 revenues, the revenue growth rate for the
year was 27%. Income from continuing operations increased to $127.6 million in
1993 from $18.8 million in 1992. Excluding the Basis asset write-down from the
prior year's results, income from continuing operations increased 53% in 1993
compared with the prior year. Income per share from continuing operations
increased to $2.10 per share in 1993, compared with $.32 in 1992. Per share
earnings increased 48% over 1992 excluding the Basis write-down.
The effect on the year-to-year revenue comparison of excluding Basis' 1992
revenues is largely offset by the incremental 1993 revenue contributions from
the 1992 acquisitions of ALTA Health Strategies, Inc., renamed as FIRST HEALTH
Strategies, in April 1992 and TeleCheck Services, Inc. and its principal
franchisee, Payment Services Company -- U.S. (collectively referred to as
"TeleCheck"), in July 1992. As a result, the 17% increase in revenues in 1993 is
all attributable to internal growth.
The internal growth in 1993 was due primarily to significant volume growth
within FFMC's existing businesses which more than offset continued pricing
pressures in several of FFMC's product areas. The Company's merchant services
areas experienced strong volume growth in its credit card services and check
verification and guarantee businesses. Record new customer volume was added from
marketing efforts, including national, regional and local merchants. In
addition, FFMC continued to cross-sell the multiple product offerings within its
merchant services area, which resulted in the signing of additional national
merchants to processing contracts. FFMC also experienced volume growth in its
health care services area, with increases in claims processing for both public
and private sectors. Health care businesses received contract awards or began
claims processing under previously awarded contracts during 1993. The Company's
imaging business experienced volume growth in 1993, which competitive pricing
pressure partially offset to produce a small increase in revenues for the year.
FFMC demonstrated the leveragibility of its businesses by translating the
revenue increases, despite the pricing pressures noted above, into higher
percentage rate increases in pretax income, thereby producing higher pretax
margins. The Company's pretax margin was 12.9% in 1993 compared with a 10.2%
pretax margin in 1992 (excluding the Basis write-down). Margins were also
favorably influenced by the Company's continued emphasis on expense controls and
the successful integration of acquisitions completed in 1992. Depreciation and
amortization expenses declined 8% in 1993 primarily due to the inclusion of
Basis in 1992. General and administrative expenses increased only 2% for the
year (and decreased as a percent of revenues) as the Company enjoyed the benefit
of the restructuring of its corporate infrastructure which occurred as a result
of the 1992 strategic reevaluation of the Company.
14
<PAGE> 28
The impact of the revenue increases and the expansion of margins in 1993
was enhanced by lower net interest expense during 1993. FFMC experienced lower
borrowing levels in 1993, as a substantial portion of its debt obligations were
repaid during the second quarter from cash received from the sale of businesses.
Proceeds from these sales, along with increased cash generated from operations,
resulted in higher levels of cash investments during the second half of 1993
which favorably impacted the Company's net interest expense for the year.
FFMC adopted Statement of Financial Accounting Standards No. 109 ("FAS
109"), "Accounting for Income Taxes," effective January 1, 1993. The Company
elected the prospective method of adoption allowable under FAS 109 instead of
restating prior period results. The cumulative effect on the Company's results
of operations of adopting FAS 109 was not material, and no adjustment was
recorded. In addition, the Omnibus Budget Reconciliation Act of 1993 (the "1993
Act") was signed into law during 1993 which contained several provisions which
affected the Company's 1993 income tax expense.
The Company's effective tax rate decreased 1.5% in 1993 to 40.8%. The
comparable prior year rate of 42.3% excludes the impact of the Basis write-down.
The decrease, which occurred despite the 1% increase in the federal corporate
tax rate, is attributable to lower levels of nondeductible goodwill, lower
effective state tax rates and other favorable impacts of the 1993 Act and the
Company's tax strategies.
1992 Compared with 1991
FFMC's revenues increased 35% to $1.4 billion in 1992 from $1.1 billion in
1991, primarily from new business acquisitions and revenue growth within
existing businesses. Both income from continuing operations and related per
share amounts decreased in 1992 compared with 1991's results. However, excluding
the Basis asset write-down of $79.6 million, the Company's 1992 income from
continuing operations increased 33% to $83.5 million from the $62.7 million
reported in 1991. Fully diluted income per share from continuing operations,
excluding the Basis write-down, increased 15% to $1.42 from $1.23 in 1991.
Revenue growth from business acquisitions in 1992 resulted primarily from
the Company's acquisition of FIRST HEALTH Strategies (April 1992) and TeleCheck
(July 1992). Existing businesses expanded revenues in 1992 from volume increases
as a result of new customers and expanded business with existing customers. The
merchant credit card processing area benefited from an increase in retail
activity during the 1992 holiday season in the fourth quarter. Health care
services experienced increased claims processing volume and received several new
long-term contracts with government agencies and became fully operational on
several other processing contracts.
Higher personnel costs within the newly acquired FIRST HEALTH Strategies
and TeleCheck businesses in 1992 caused operating expenses, as a percentage of
service revenues, to increase in 1992 over the prior year. In addition, 1992's
business acquisitions increased goodwill amortization from prior year levels.
Interest expense (net of interest income) declined in 1992 due to lower interest
rates and reduced borrowing levels due to the conversion of all of the Company's
convertible subordinated debentures into common stock in October 1991, and
repayment of borrowings under FFMC's revolving credit facility from the cash
proceeds received from the First Family sale.
FFMC's continuing operations, excluding the Basis asset write-down,
generated 1992 earnings before income taxes of $144.7 million, a pretax margin
of 10.2%. This margin is consistent with the 9.9% pre-tax margin on earnings
before income taxes of $104.6 million in 1991. The Company's 1992 effective tax
rate of 71.1% was substantially above the federal statutory rate due to the
nondeductibility of the majority of the Basis asset write-down. Excluding the
effect of the write-down, FFMC's provision for income taxes from continuing
operations increased to 42.3% in 1992 from 40.1% in 1991. This increase was due
primarily to increased state income taxes, lower IBT Subchapter S income taxed
at the shareholder level, and lower tax credits.
ECONOMIC FLUCTUATIONS
The Company's business is somewhat insulated from economic fluctuations due
to recurring revenues from long-term service contracts, and the fact that the
Company's services often result in cost savings for its
15
<PAGE> 29
customers. The slow growth, but steadily improving economic environment during
1993 benefited FFMC's results, as the Company experienced higher year-to-year
processing volumes, particularly in its merchant services area. The results of
FFMC's health care services area have not been significantly affected by recent
reform oriented developments in that industry.
The Company's business is not seasonal, except that its revenues, earnings
and margins are favorably affected in the fourth quarter, primarily by increased
merchant credit card and check volume during the holiday season.
Although FFMC cannot precisely determine the impact of inflation on its
operations, inflation affects the Company through increased costs of employee
compensation and other operating expenses. In addition, competition for
employees with data processing skills, programming expertise, and other
technical knowledge contributes to increased costs in some parts of the country.
To the extent permitted by the Company's service contracts, these increases in
costs are passed along to customers in the form of periodic price increases.
FFMC's revenues from merchant credit card processing, check verification and
guarantee services and accounts receivables collection are generally a
percentage of the dollar volume of transactions processed. The Company's
operating margins on these services are therefore relatively insulated from the
effects of inflation on merchant prices for goods and services. As a result, the
Company has not been significantly affected by inflation.
CAPITAL RESOURCES AND LIQUIDITY
The following discussions pertain to the Company's continuing operations.
FFMC's information services businesses generate strong cash flows from
operating activities, and the growth in these operating cash flows in recent
years mirrors the growth in the scale and breadth of the Company's service
offerings. Cash generated from operating activities increased 42% in 1993 to
$207 million, as compared with $146 million generated in 1992 and $121 million
in 1991. This trend of increased cash flows from operating activities has
resulted primarily from increased earnings of FFMC's businesses (before non-cash
expenses for depreciation and amortization and other non-cash charges).
The Company generated strong cash flows from operating activities totalling
$157.5 million and $177.6 million, respectively, for the first nine months of
1994 and 1993. FFMC had higher earnings, depreciation and amortization and other
non-cash charges in 1994's first nine months than in the comparable period in
1993. These increases were more than offset by unfavorable comparisons in the
working capital categories of accounts receivable and accounts payable and
accrued expenses. This negative comparison is principally due to a one-time
positive effect on cash flows as a result of the commencement of merchant
settlement payments by First Financial Bank ("FFB") in 1993.
The Company transferred the responsibility for merchant credit card
settlement to its credit card bank, FFB, in June 1993 (included in FFMC's
continuing operations) from Georgia Federal (part of the Company's discontinued
operations). The timing of these settlements impacts the computation of FFMC's
cash flows from operating activities. FFB was activated during the second
quarter of 1993 with a required initial capitalization of $70 million. The
capitalization of FFB is based upon requirements of bank card associations given
the size of the Company's credit card processing operations. The primary purpose
of FFB is to support the Company's merchant service activities, and FFB does not
conduct any significant banking activities, accept deposits from unaffiliated
parties or engage in lending activities. FFB's capitalization and activities
comply with applicable regulatory requirements and restrictions.
The significant cash flows generated from operating activities are
reinvested by the Company in existing businesses, are used to fund smaller,
tactical acquisitions, and are also used to reduce borrowings and to contribute
toward the financing of larger, strategic acquisitions.
Business reinvestments, principally for property and equipment additions,
software development and customer conversions, totalled $80 million in 1993, $78
million in 1992, and $67 million in 1991. For the first nine months of 1994
these reinvestments totalled $60 million compared with $51 million during 1993's
first
16
<PAGE> 30
nine months. The majority of the increase in reinvestments in 1994's first nine
months over the same period in 1993 is due to higher 1994 outlays for system
development activities in FFMC's health care services business.
Cash from operating activities exceeded reinvestments in existing
businesses by $128 million in 1993, $68 million in 1992, $53 million in 1991 and
$97 million in the first nine months of 1994 (as compared with $127 million in
the first nine months of 1993). This excess cash was utilized primarily to
finance the Company's business acquisitions. Cash consideration paid for
acquisitions (net of cash acquired), including amounts paid related to
acquisitions completed in prior years, totalled $92 million in 1993, $267
million in 1992, and $72 million in 1991. Such cash outlays during the first
nine months of 1994 were $97 million, including a $10 million cash deposit
related to the recent Western Union acquisition.
FFMC has potential obligations under certain acquisition arrangements to
pay future cash consideration to the former shareholders of specified acquired
businesses. Any such payments will be due only if the acquired entity's results
of operations exceed specified targeted levels that are generally set
substantially above the historical experience of the acquired entity. Thus, any
such payments will not negatively impact the Company's financial position.
The Company utilizes capital markets and borrowings under debt arrangements
to supplement excess cash generated from operations to fund its acquisition
program. In June 1993, the Company repaid all outstanding bank borrowings using
cash proceeds from the sales of businesses during the first six months of 1993
and strong cash flows from operations. FFMC received $345 million in cash in
1993 through dividends from its discontinued operation and from the sale of
businesses, after expenses. The Company also had received $150 million in cash
from Georgia Federal in 1992, comprised of a $100 million cash dividend and a
$50 million payment toward the settlement of income tax liabilities from the
sale of First Family, which were paid by FFMC during 1993. The Company utilized
these proceeds to repay $154 million on long-term debt obligations in 1993 and
$146 million in 1992.
FFMC has received approximately $20 million in cash proceeds from the
exercise of publicly held warrants issued in 1989 in connection with an offering
of Common Stock. If all remaining warrants are exercised at their exercise price
of $26.67 per share (during the final exercise period in the second quarter of
1995) the Company would issue an additional 1.3 million shares of FFMC Common
Stock and receive cash proceeds of $35 million.
In 1989, the Company's Board of Directors initiated a practice of paying
semiannual cash dividends of $.05 per share (paid in January and July), and has
maintained this per share rate despite a three-for-two stock split effective
March 31, 1992. Cash dividends were paid on January 3, 1994 and July 1, 1994. On
October 26, 1994, FFMC's Board of Directors declared a cash dividend of $.05 per
share, payable on January 3, 1995 to shareholders of record on December 1, 1994.
FFMC's cash and cash equivalents of $182 million at September 30, 1994,
except for cash and cash equivalents in its credit card bank ($82 million at
September 30, 1994), are available for acquisitions and general corporate
purposes.
The Company amended its unsecured revolving credit facility in November
1994, increasing it from $450 million to $1.0 billion and providing a new three
year term. Other terms and conditions of the amended facility are substantially
the same as the previous credit facility entered into on June 25, 1992. FFMC
used $493 million of this facility as the initial financing for the acquisition
of Western Union and related assets. The Company intends to use the Securities
offered hereby or other securities as the ultimate source of financing for a
substantial portion of the Western Union acquisition.
If suitable opportunities arise for additional acquisitions, the Company
may use cash, draw on its available credit facility, or use the Securities
offered hereby or other securities as payment of all or part of the
consideration for such acquisitions. The Company believes that its current level
of cash and future cash flows from operations are sufficient to meet the needs
of its existing businesses.
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BUSINESS OF THE COMPANY
STRATEGIC TRANSACTIONS
FFMC periodically conducts a strategic reevaluation of its businesses,
reviewing overall trends and developments in relation to its business
investments and industry concentrations. These strategic reviews have resulted
in numerous business acquisitions since 1986 that have broadened the Company's
service offerings and have most recently resulted in the Company's acquisition
of Western Union and related assets. In addition, in 1992, FFMC disposed of
business units no longer involved in FFMC's strategic direction.
FFMC's recent acquisition of Western Union and related assets provides FFMC
with a leadership position in the nonbank money transfer business. Adding
Western Union's worldwide network to FFMC's existing services significantly
expands the reach of FFMC's total information processing activities. See "Recent
Acquisition of Western Union Money Transfer Business."
In 1992, FFMC decided to dispose of Georgia Federal Bank, FSB and its
subsidiaries ("Georgia Federal") and Basis Information Technologies, Inc.
("Basis"). Georgia Federal had been acquired specifically to ensure that FFMC's
merchant credit card processing business had access to the payment system
through Georgia Federal's sponsorship in the Visa and the MasterCard networks.
After developing alternative measures to provide this business with continued
access to the payment system, including a plan to form a credit card bank, FFMC
entered into a definitive agreement in late 1992 to sell Georgia Federal.
Georgia Federal is presented as a discontinued operation in FFMC's consolidated
financial statements. Also in December 1992, FFMC entered into a definitive
agreement to sell Basis, FFMC's original core business unit that provided data
processing services to financial institutions. The Georgia Federal and Basis
dispositions were completed in 1993.
MERCHANT SERVICES
FFMC offers merchant services primarily through four of its operating
units: National Bancard Corporation ("NaBANCO") -- credit card authorization,
processing and settlement services; TeleCheck Services, Inc.
("TeleCheck") -- check verification and guarantee services; Nationwide Credit,
Inc. ("Nationwide") -- debt collection and accounts receivable management
services; and MicroBilt Corporation ("MicroBilt") -- the development and
marketing of data communication and information processing systems. Services are
provided to approximately 250,000 customers in all 50 states, the Caribbean and
Canada through 56 locations with 4,000 employees. Fees for merchant services are
generally based on the dollar volume of transactions processed. The percentages
of FFMC's revenues from continuing operations contributed by merchant services
were 70%, 60%, and 67%, respectively, during the years ended December 31, 1993,
1992 and 1991.
NaBANCO
NaBANCO is the largest full service provider of merchant credit card
authorization, processing, and settlement services in the United States,
providing these services for merchants with respect to transactions in which
payment is made through bank cards (primarily Visa and MasterCard) and certain
other credit cards. Over 95% of the credit card authorizations by NaBANCO are
performed electronically (generally within eight seconds), compared with
approximately 70% of all credit card transactions industry-wide. Approximately
$54 billion in merchant credit card transactions were handled in 1993, compared
with $43 billion in 1992 and $34 billion in 1991.
NaBANCO provides most of its services as agent for and in conjunction with
First Financial Bank ("FFB"). FFB is FFMC's credit card bank formed for the
primary purpose of supporting the Company's merchant services activities,
including sponsorship into the Visa and MasterCard systems, as required by their
rules. FFB replaced Georgia Federal as NaBANCO's primary sponsoring Visa and
MasterCard member bank. NaBANCO also provides services as agent for and in
conjunction with other sponsoring member banks and maintains ongoing
relationships with these and other banks to assist in marketing and delivering
NaBANCO's services to these banks' merchant customers.
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TeleCheck
The TeleCheck system provides check acceptance services through TeleCheck
or independent franchises to retail merchants throughout the United States,
Canada, Australia and New Zealand using large consumer data bases and
proprietary risk management systems operated under the "TeleCheck" trademark. By
the end of 1993, FFMC had a more than 95% share of the domestic TeleCheck system
volume. The TeleCheck system is one of the largest check acceptance services in
the world. Over $24 billion in checks were authorized in 1993, compared with
approximately $15 billion in checks authorized in 1992.
TeleCheck provides check guarantee services, buying the approved check at
face value from the merchant if it is subsequently dishonored up to a
pre-established warranty maximum. TeleCheck also provides check verification
service to help merchants reduce bad check write-offs and control the costs of
check acceptance by utilizing its payment data bases and activity monitoring
systems. These services allow merchants to maintain a liberal check acceptance
program to increase sales and profits.
Nationwide
Nationwide provides debt collection and accounts receivable management
services nationally to a wide variety of customers including retailers, health
care providers, financial institutions and the federal government and its
agencies through eleven collection offices located throughout the United States.
Nationwide's debt collection and accounts receivable management services are
performed with enhanced technological advancements, including on-line
skiptracing capabilities and paperless collection systems, whereby its
customers' transactions are managed through a collector's computer terminal
linked to a central mainframe computer.
MicroBilt
MicroBilt serves as FFMC's research and development arm, particularly in
the merchant services area, working to develop technological solutions to
enhance the Company's product offerings. MicroBilt develops, markets and
supports data capture, communications and distribution systems to multi-location
customers including financial institutions, retailers, health care providers,
pharmaceutical providers and restaurants. These systems are low cost, easy to
use data communication systems suited to a wide range of industries that require
data transmissions to and from numerous remote locations. MicroBilt specializes
in point of sale data communication applications through the sale of systems and
network design. MicroBilt's systems integrate proprietary software with a range
of hardware platforms which are distinguished by their application-specific
design and common product framework. MicroBilt targets application-specific
systems to selected industries. Its systems typically replace the use of mail,
voice telephone and less efficient computer systems to send and receive
information. Revenues are generated from both sales of systems and support
services.
MicroBilt provides point-of-sale equipment to merchant customers of NaBANCO
and has developed check-reading terminals targeted for TeleCheck's merchant
customers. MicroBilt also is a leader in developing in-store branch banking
programs in supermarkets. It provides a comprehensive array of services for its
financial institution customers, including design and construction and
continuing management of the in-store program between the financial institution
and the supermarket.
HEALTH CARE SERVICES
FFMC's health care services are provided by its FIRST HEALTH operating unit
("FIRST HEALTH"). Services are provided to approximately 1,500 customers through
55 locations across the United States that employ 4,500 persons. Over 330
million health care claims totalling approximately $27 billion are processed
annually on systems operated or developed and supported by FIRST HEALTH. The
percentages of FFMC's revenues from continuing operations provided by health
care services were 17%, 15%, and 6%, respectively, for the years ended December
31, 1993, 1992 and 1991.
FIRST HEALTH is one of the nation's largest processors of private sector
health care claims. Its services include claims administration, utilization
management, provider networks, insurance brokerage and data analysis and
reporting and vocational rehabilitation and other workers' compensation services
and are designed
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to help control employer health care costs and to monitor the quality of health
care provided. As a result of the acquisition of GENEX Services, Inc. in July
1994, FIRST HEALTH is a leading provider of workers' compensation programs,
including management of medical cases and vocational rehabilitation, outstanding
bill review, utilization management and other cost containment services. FIRST
HEALTH markets its services principally to employers with self-funded group
health benefit plans, to employers with insured plans which are seeking health
care management alternatives and to employers seeking managed care programs
relating to workers' compensation programs.
FIRST HEALTH is also one of the largest providers of transaction processing
and management services to governmental agencies and private and public third
party payors. These services include processing for Medicaid and other state
programs, pharmaceutical claims processing, drug utilization review services,
and management services for mental health, substance abuse, and preventive care
programs.
Health care reform measures have been introduced by the executive and
legislative branches of the federal government. These proposals, if enacted,
could significantly impact the delivery and payment for health care services in
the United States. It is uncertain what changes will actually be implemented and
how such changes may impact FIRST HEALTH. However, the Company believes that its
health care businesses, given their focus on the efficiency of information
processing, are favorably positioned to benefit from an emphasis on reducing the
level of administrative costs related to the delivery of health care products
and services.
DATA IMAGING SERVICES
FFMC's data imaging services are provided through First Image Management
Company ("First Image") through 74 locations across the United States. First
Image employs approximately 3,000 people in order to provide 12,000 customers
with a variety of data management services. Fees are based on the volume and
complexity of the data imaging or management services provided as well as other
factors such as required turnaround time, volume and duration of contract. The
percentages of FFMC's revenues from continuing operations provided by data
imaging services were 13% in 1993, 16% in 1992 and 19% in 1991.
First Image's data imaging services include a full spectrum of data
management services: the conversion of hard copy documents into machine readable
form and production of computer output microfilm ("COM"); the design,
installation and day-to-day management of immense data bases used by large
corporations and federal and state governments; the customization, printing and
mailing of reports and statements from large databases; and the publishing and
distribution of training manuals, product catalogs and other documents. These
services are offered by First Image under a "total solutions" approach with the
objective of improving the utility of a user's data base through ease of access
and efficient information output. In addition, First Image's services reduce the
need for its clients to devote substantial capital investments to create,
maintain and access these large databases.
First Image's COM services involve transferring data from computer tape to
microforms, generally referred to as "microfiche." Cost savings to the customer
are obtained with compact storage and efficient information retrieval. In
addition, sophisticated indexing methods are offered to aid in data retrieval.
First Image's Data Input division creates and manages large-scale
electronic data bases through the collection and conversion of paper source
documents. Large volumes of source documents are transferred to machine readable
media such as magnetic tape or diskette through key entry and high-speed Optical
Character Recognition scanning techniques. Data bases created from the converted
data are transmitted to the customer or stored for future access and retrieval
upon the customer's request. First Image's report production services are a
natural extension of its database management services.
REGULATION AND EXAMINATION
First Financial Bank ("FFB") is a special purpose bank that conducts only
those activities permitted for "credit card banks" under the Federal Bank
Holding Company Act, as amended (the "BHC Act"). Under the BHC Act, FFMC may own
a credit card bank without itself becoming subject to federal regulation as a
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bank holding company (or subject to related restrictions on the types of
activities FFMC and its other subsidiaries may engage in) as long as the credit
card bank: (a) engages only in credit card operations, (b) accepts no deposits
other than time deposits of $100,000 or more, (c) maintains only one office that
accepts deposits, and (d) does not engage in the business of making commercial
loans. FFB operates within these limitations. FFB is subject to examination and
regulation by the Georgia Department of Banking and Finance and applicable
federal regulatory agencies, including the Federal Deposit Insurance Corporation
("FDIC"), which in 1993 approved FFB's application for FDIC deposit insurance.
FFMC also is subject to minimal regulation by the Georgia Department of Banking
and Finance as a Georgia bank holding company. Certain activities of NaBANCO are
subject to examination and regulation. In addition, certain minimum capital
ratios must be maintained by FFB, and arrangements between FFB and its
affiliates must be on terms at least as favorable as those available from
independent third parties. FFB and NaBANCO are subject to the Visa and
MasterCard rules, including a requirement that FFB maintain adequate capital
(currently $70 million) based on the merchant credit card processing volume
settled through FFB.
Certain other services that FFMC provides directly to governmental agencies
and regulated financial institutions also may be reviewed by various federal and
state regulatory entities.
INDUSTRY TRENDS
The technological capabilities required for the rapid and efficient
creation, processing, handling, storage and retrieval of information are
becoming increasingly complex, thus requiring large capital expenditures and
resulting in an industry consolidation that is beneficial to FFMC. FFMC's
customers are handling an expanding variety and rapidly growing volumes of
transactions. This processing increasingly requires the use of sophisticated
software, hardware and communication technologies. Third-party credit card
processing and check verification services are being performed increasingly
through electronic means, which provide faster and more reliable confirmations
and quicker and more convenient transaction processing and settlement.
Sophisticated technological and communication capabilities are also essential to
permit the imaging, creation and effective management of large data bases.
Likewise, within the health care and pharmaceutical claims industry, there is an
increasing need for data to be available more rapidly in order to manage and pay
for health care services.
Significant capital commitments are becoming increasingly important in
order to develop, maintain and update the systems (including software, hardware
and communication equipment and methods) necessary to provide these
technologically advanced services at a competitive price. Economies of scale are
needed to justify these capital investments. In addition, as more on-line and
other electronic delivery systems are used, it is becoming easier to serve a
wider geographic area from centralized data processing centers. As a result of
these developments, many institutions are contracting with outside specialists
for these services, and many small information processing and handling
organizations are consolidating with large providers of these services.
FFMC believes that it can benefit from these trends by leveraging the
collective capabilities developed through its varied, but related, services and
products which lend themselves to cross-selling and to synergistic combinations.
The Company also believes that its growing array of information services and
products enhances its ability to provide a total solutions approach to many of
its customers' needs.
RECENTLY ACQUIRED BUSINESS OF WESTERN UNION
FFMC's recent acquisition of Western Union's money transfer business
completed on November 15, 1994 was accounted for as a purchase and thus is not
yet reflected in FFMC's historical financial results. Accordingly, a separate
description of this newly acquired business follows.
MARKET FOR WESTERN UNION SERVICES
The primary market for Western Union's services is composed of people who
periodically need to send or receive cash quickly to meet emergency situations
or to provide funds to families in other locations or need to use nonbank
financial services to pay bills and meet other obligations. This consumer group
includes people
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who relocate frequently, low-income households, itinerate workers and
individuals with dependents away from home.
STRATEGIC PLANS FOR WESTERN UNION
FFMC expects that Western Union will enhance its business activities due to
Western Union's worldwide leadership in payment services of a type where
significant barriers to entry exist. Western Union's network of over 24,000
agents in over 75 countries will expand FFMC's abilities to reach customer
markets throughout the world. In addition, Western Union's strength in nonbank
immediate money transfer represents an expansion of FFMC's product offerings.
Western Union's emphasis on the consumer market, rather than commercial
customers, reflects a further expansion of FFMC's overall customer base.
SERVICES OF WESTERN UNION
Money Transfer
Regular Domestic Money Transfer
Providing for the rapid transfer of money from one individual (the sender
with funds) to another (the recipient in need) at a distant location is the core
business of Western Union. This is the business of "wiring money" that was
invented by Western Union more than a century ago. Today, the Company believes
that Western Union has approximately 90% of the rapid consumer non-bank money
transfer market in the United States.
The Western Union Money Transfer service is provided through Western
Union's agent network and computerized funds transfer system. To send money, a
customer goes to an agent location, presents cash or a cashier's check, gives
the agent the name of the person to whom the money is being sent and is issued a
receipt. The agent, using a computer terminal in most instances, then enters the
transaction into Western Union's system. Within minutes, the money is available
to the recipient, who can pick it up at any Western Union agent location. While
there is no limit on the amount of money that can be sent, 90% of Western
Union's money transfers involve principal amounts of less than $500. The fee,
which is paid by the sender, is based on a graduated schedule and varies with
the principal amount of the money transfer.
Revenues from the regular domestic money transfer business of Western Union
have increased 5.8% from $220.6 million in 1992 to $233.4 million in 1993.
During 1993, Western Union processed over 9.7 million domestic money transfers
involving over $2.4 billion in principal.
The Western Union Money Transfer service in Canada was inaugurated in 1990
and is operated as an extension of the domestic service.
Credit Card Money Transfer
As a convenient alternative to taking cash to an agent location, MasterCard
or Visa credit card holders can transfer funds by placing a toll-free call to a
Western Union customer service center and charging the principal and fee to
their accounts.
Quick Cash(SM)
By using a specialized money transfer service called Quick Cash, commercial
customers of Western Union such as credit unions, banks and trucking firms can
send amounts up to $10,000 to traveling employees or clients for pick-up at any
Western Union agent location. Once a firm opens a Quick Cash account, it can
make money available for immediate payout by notifying Western Union to draft
the funds against the account.
International Money Transfer
In recent years, Western Union has expanded the Western Union Money
Transfer service outside of the United States, establishing agent networks in
additional countries and linking them directly with the money
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transfer system in the United States. This has made it possible for Western
Union's customers to transfer money to or from these countries on the same basis
(availability for pick-up within minutes) as money transferred within the United
States. It has also added a new dimension to Western Union's business, namely
the provision of money transfer service between and within foreign countries.
The "will call" service has been established in more than 75 countries outside
of the United States, and this service is expected to continue to expand. A
next-day money transfer service is available to 15 African countries. In the
past, international money transfer service was provided only through
international banks and other third-party relationships, and receipt generally
took two or more days.
Mexico currently is the largest money transfer market outside the United
States. Western Union's established Mexican Money Transfer service enables
individuals in the United States to send money to Mexico, where it is paid out a
day or two later at one of approximately 1,500 offices of the government-
operated telecommunications service with which Western Union has had a
long-standing operating agreement. Through a newly-formed Mexican subsidiary,
Western Union introduced in December 1993 a new, separate service for the rapid
transfer of funds to Mexico. The new service, called "Dinero en Minutos" ("Money
within Minutes"), makes money transfers available, at new agent locations
established in Mexico, within minutes after they are sent from the United
States.
A separate organizational unit within Western Union manages its business in
areas outside of the United States. During 1992, this business unit established
a field organization to handle business development and agent network management
overseas. Presently its international offices are located in Utrecht, the
Netherlands (Europe, Middle East and Africa Region); Miami, Florida (Latin
America and Caribbean Region); Sydney, Australia (Asia, Pacific and Australia
Region); and Moscow, Russia (Eastern Europe, Russia and the former Soviet
Republics).
In 1991, Western Union formed a joint venture with a Russian bank,
initiating the first consumer instant money transfer service between the United
States and Russia. This joint venture has recently been awarded a license as a
credit institution by the Central Bank of Russia. The service is presently
available in numerous locations in Moscow as well as several other locations in
Russia and other former Soviet Republics. It is anticipated that additional
locations will be established in the future.
Total money transfer revenues of Western Union from international
operations increased from $71.8 million in 1992 to $93.0 million in 1993.
Payment Services
Quick Collect(R)
Quick Collect is the largest of the payment services now being provided by
Western Union. Introduced in 1989, the service grew to a level of more than four
million transactions and $40 million in revenues in 1993.
Banks, collection agencies, finance companies and other financial
organizations use Quick Collect for fast collection of overdue bills. These
creditors advise their debtors to settle their accounts by bringing cash to any
Western Union agent location. The debtor pays a transaction fee, which generally
is less than overnight Express Mail or delivery service rates, to send the
money. Within minutes, a negotiable money transfer draft is produced on a check
printer that Western Union has installed in the Quick Collect customer's office
and the debtor's account is credited.
Easy Pay(SM)
Western Union's Easy Pay payment service enables utility company customers
to pay bills at Easy Pay agent locations by cash or a check. Using a countertop
terminal, the agent records the payment and prints a customer receipt. At the
end of each day, the terminal reports the payments to a central computer, all
payment activity is consolidated and the customers' accounts are updated. Within
a few business days, the utility is credited with the funds collected.
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Money Orders
In partnership with a subsidiary of Mid-American Bancorp, Western Union
began selling Western Union Money Orders at selected agent locations in 1992.
These negotiable drafts are purchased by consumers for a variety of uses where
rapid funds transfer is not required. Western Union Money Orders are processed
on the same personal computers that are used for money transfer transactions and
are issued from secure, automated dispensers.
Joint Ventures
Western Union is party to joint ventures to provide bill payment services
in Argentina and Venezuela.
Other Services
Secured Credit Card
Western Union introduced the Western Union MasterCard in December 1992. A
nationally available secured credit card issued by Associates National Bank
(Delaware), the Western Union MasterCard is designed for people who do not have
a banking relationship or credit history, or who have had difficulty maintaining
credit. After submitting an application and a security deposit, which is held in
an interest-bearing account and varies in amount with the credit line the
customer requests, the new cardholder is provided with the buying power and
convenience of a major credit card.
Phone Card
The Western Union Phone Card, which was introduced in May 1993, is the
first branded, pre-paid disposable telephone card to be offered nationwide.
Available in amounts of $5, $10, $20 and $50, it is being sold through more than
15,000 agents of Western Union.
The Western Union Phone Card enables consumers to place local, national or
international calls from any telephone in the United States without using coins
or a credit card. There are no bills or surcharges, and the cardholder is
informed of how much usage remains on his or her Phone Card each time a call is
completed and when there is one minute of calling time left.
OPERATING INFRASTRUCTURE OF WESTERN UNION
Approximately 1,775 full-time employees of Western Union, deployed
throughout the United States and abroad, carry on the day-to-day operations that
enabled Western Union in 1993 to process approximately 40 million money
transfers and bill payments and move approximately $7.8 billion of principal.
These transactions are processed through computers interconnected by a
nationwide high-speed packet transport network. Special software links agent
personal computers to the network.
Western Union's major operating facilities are customer service centers
located in Bridgeton, Missouri and Dallas, Texas, the latter being a
multilingual center. At these centers and through third-party out-sourcing
arrangements, approximately 1,000 customer service representatives receive
toll-free calls around the clock from the public and from Western Union's agents
in more than 75 countries.
COMPETITION FOR WESTERN UNION SERVICES
The money transfer business is highly competitive. There are numerous
methods to transfer funds, including bank wire transfer services, available
primarily to business users, and money orders which are transferred physically
or by mail. Money orders are sold by the United States Postal Service and a
number of private business firms. Western Union believes it has approximately
90% of the rapid consumer nonbank money transfer service market. Currently First
Data Corporation ("First Data") is the major competitor in the "will call" money
transfer service business. Comdata Network, Inc. also competes with Western
Union in the commercial money transfer market.
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The impact of the Western Union name, which is widely recognized as a
symbol of fast, dependable service, is a major competitive strength. Western
Union maintains a broad-based advertising and marketing program supporting the
Western Union brand and the public's awareness of Western Union's services.
Western Union's large and established network of agents is another major
competitive strength. Along with Western Union's television advertisements, its
network of money transfer agents (which numbers approximately 18,000 in the
United States and another 6,000 in countries throughout the world) is the most
publicly visible component of Western Union's services. Western Union's agents
are local businesses such as supermarkets, drug stores, check cashers, mailbox
stores and bus depots that are conveniently located, maintain extended hours of
operation and have available cash. These establishments operate under exclusive
contracts with Western Union to provide Western Union services in their
communities.
While the Company believes that Western Union's focused strategy makes it
somewhat less vulnerable to competition from major financial institutions,
Western Union's sales and earnings may nevertheless be affected by new entrants
in the money transfer business. The Company cannot predict the effect that
heightened competition would have on Western Union's domestic and international
money transfer service business.
Western Union has several competitors in the electronic bill payment
business, including First Data and BuyPass, a subsidiary of CoreStates Financial
Corporation, each of which has recently entered this business.
EMPLOYEE RELATIONS FOR WESTERN UNION
At October 31, 1994, Western Union had approximately 1,775 full-time
employees. Western Union has a three-year labor contract expiring August 6, 1997
with the Communications Workers of America, AFL-CIO, representing approximately
1,184 full-time and 220 part-time employees. The Company believes that relations
with Western Union's employees are satisfactory.
REGULATION OF WESTERN UNION
The money transfer operations of Western Union are regulated in most states
by banking commissions or similar authorities, which require Western Union to
obtain and maintain licenses to conduct such operations. Such licenses generally
require the maintenance of minimum levels of net worth and/or liquidity. Western
Union is subject to the jurisdiction of the Federal Communications Commission in
connection with its Phone Card service.
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DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the debentures, notes and/or
other unsecured evidences of indebtedness offered hereby (the "Debt Securities")
sets forth certain general terms and provisions of the Debt Securities to which
any Prospectus Supplement may relate. The particular terms and provisions of the
series of Debt Securities offered by a Prospectus Supplement (the "Offered Debt
Securities"), the trustee with respect to the Offered Debt Securities, and the
extent to which the general terms and provisions described below may apply
thereto, will be described in the Prospectus Supplement relating to such Debt
Securities.
The Debt Securities will be issued under one or more indentures, the terms
of which will be substantially identical other than as described herein, with
one or more trustees. The indentures may include an Indenture in substantially
the form filed as an exhibit to the Registration Statement (the "Chase Manhattan
Indenture"), between the Company and The Chase Manhattan Bank (National
Association) ("Chase Manhattan"), as trustee, and an Indenture dated as of
December 5, 1994 (the "NationsBank Indenture"), between the Company and
NationsBank of Georgia, National Association ("NationsBank"), as trustee, copies
of which are filed as exhibits to the Registration Statement. The Chase
Manhattan Indenture and the NationsBank Indenture are referred to hereinafter
each as an "Indenture" and together as the "Indentures" and Chase Manhattan and
NationsBank are referred to hereinafter each as a "Trustee" and together as the
"Trustees." The following summaries of certain provisions of the Indentures do
not purport to be complete and are subject to, and are qualified in their
entirety by, reference to all of the provisions of the Indentures, including the
definitions therein of certain terms. Except as otherwise specified, all of the
provisions described below appear in each of the Indentures. Wherever particular
provisions or defined terms of the Indentures are referred to herein or in a
Prospectus Supplement, such provisions or defined terms are incorporated herein
or therein by reference. Section and Article references used herein are
references to the Indentures and, except as otherwise indicated, are identical
in both Indentures.
GENERAL
The Debt Securities will be direct, unsecured general obligations of the
Company that will rank on a parity with all other unsecured indebtedness of the
Company from time to time outstanding which is not by its terms subordinated to
the Debt Securities. The Debt Securities offered by this Prospectus will be
limited to $1,000,000,000 aggregate principal amount (based on the aggregate
initial public offering price of such Debt Securities), less the offering price
of any Common Stock which may be offered hereunder (other than through
conversion of Debt Securities), although the Indentures do not limit the
aggregate principal amount of Debt Securities that may be issued thereunder. The
Debt Securities may be issued thereunder from time to time in separate series up
to the aggregate amount from time to time authorized by the Company for each
series.
Unless otherwise indicated in a Prospectus Supplement relating to any
Offered Debt Securities, the covenants contained in the Indentures or the
Offered Debt Securities would not impose any limit on secured debt and would not
afford Holders of the Offered Debt Securities protection in the event of a
highly leveraged or other transaction involving the Company or its subsidiaries
that may adversely affect the Holders.
Reference is made to the applicable Prospectus Supplement for a description
of the following terms of the Offered Debt Securities in respect of which this
Prospectus is being delivered: (1) the title of the Offered Debt Securities; (2)
any limit on the aggregate principal amount of the Offered Debt Securities; (3)
the person to whom any interest on any Offered Debt Security shall be payable,
if other than the person in whose name the Offered Debt Security is registered
on the Regular Record Date; (4) the date or dates on which the Offered Debt
Securities will mature; (5) the rate or rates at which the Offered Debt
Securities will bear interest, if any, or the method by which such rate or rates
are determined, the date or dates from which any interest will accrue, the
Interest Payment Dates on which any such interest on the Offered Debt Securities
will be payable and the Regular Record Dates for interest payable on any such
Interest Payment Dates; (6) the place or places where the principal of and any
premium and interest on the Offered Debt Securities will be payable; (7) the
period or periods within which, the price or prices at which, and the terms and
conditions upon which the Offered Debt Securities may, pursuant to any optional
or mandatory provisions, be redeemed
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or purchased, in whole or in part, at the option of the Company; (8) the
obligation of the Company, if any, to redeem or purchase the Offered Debt
Securities pursuant to any sinking fund or analogous provisions or at the option
of the Holders, the period or periods within which, and the price or prices at
which and the terms and conditions upon which such Offered Debt Securities shall
be redeemed or purchased, in whole or in part; (9) the denominations in which
any Offered Debt Securities will be issuable; (10) any index, formula or other
method used to determine the amount of payments of principal of and any premium
and interest on the Offered Debt Securities; (11) if other than the principal
amount thereof, the portion of the principal amount of the Offered Debt
Securities which will be payable upon declaration of the acceleration of the
Maturity thereof; (12) the applicability of any covenants provided for in the
Indenture; (13) the applicability of any provisions described under "Defeasance
and Covenant Defeasance;" (14) whether any of the Offered Debt Securities are to
be issuable in permanent global form and, if so, the terms and conditions, if
any, upon which interests in such Offered Debt Securities in global form may be
exchanged, in whole or in part, for the individual Offered Debt Securities
represented thereby; (15) the terms, if any, upon which such Offered Debt
Securities may be converted into stock or other securities of the Company or any
other corporation, including the initial conversion price or conversion rate,
the conversion period and other conversion provisions; (16) any deletions from,
changes in or additions to Events of Default or covenants of the Company in the
applicable Indenture; (17) whether the Offered Debt Securities are issuable as
Registered Securities, Bearer Securities or both, and the terms upon which the
Bearer Securities can be exchanged for Registered Securities; (18) special
provisions relating to the issuance of Bearer Securities of any series; (19) the
form of the Offered Debt Securities and coupons, if any; (20) if other than U.S.
dollars, the Currency or Currencies in which payments of the principal of (or
premium, if any) or interest, if any, on the Offered Debt Securities will be
made or in which the Offered Debt Securities will be denominated; and (21) any
other terms of the Offered Debt Securities not inconsistent with the provisions
of the applicable Indenture. (See Section 301)
Debt Securities may be issued under the Indentures as Original Issue
Discount Securities to be offered and sold at a substantial discount below their
stated principal amount. Federal income tax consequences and other special
considerations applicable to any such Original Issue Discount Securities will be
described in the Prospectus Supplement relating thereto. "Original Issue
Discount Security" means any security that provides for an amount less than the
principal amount thereof to be due and payable upon the declaration of
acceleration of the Maturity thereof upon the occurrence of an Event of Default
and the continuation thereof. (Section 101)
EXCHANGE, REGISTRATION, TRANSFER AND PAYMENT
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of principal, premium, if any, and interest, if any, on the Debt Securities will
be payable, and the exchange of and the transfer of Debt Securities will be
registerable, at the office or agency of the Company maintained for such purpose
and at any other office or agency maintained for such purpose. (Sections 307 and
1002) Unless otherwise indicated in the applicable Prospectus Supplement, the
Debt Securities will be issued in denominations of $1,000 or integral multiples
thereof. (Section 302) No service charge will be made for any registration of
transfer or exchange of Debt Securities, but the Company may require payment of
a sum sufficient to cover any tax or other governmental charge imposed in
connection therewith. (Section 305)
All moneys paid by the Company to the Trustee or a Paying Agent for the
payment of principal, premium, if any, or interest, if any, on any Debt Security
which remain unclaimed for two years after such principal, premium, or interest
has become due and payable may to the extent permitted by law be repaid to the
Company, and thereafter the Holder of such Debt Security may look only to the
Company for payment thereof. (Section 403)
In the event of any redemption, the Company shall not be required to (i)
issue, register the transfer of or exchange Debt Securities of any series during
a period beginning at the opening of business 15 days before the selection of
the Debt Securities of that series to be redeemed and ending at the close of
business on the day of mailing the notice of redemption for such Debt Securities
or (ii) register the transfer of or exchange any Debt Security, or portion
thereof, called for redemption, except the unredeemed portion of any Debt
Security being redeemed in part. (Section 305)
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BOOK-ENTRY SYSTEM
The provisions set forth below in this section headed "Book-Entry System"
will apply to the Debt Securities of any series if the Prospectus Supplement
relating to such series so indicates.
The Debt Securities of such series will be represented by one or more
global securities (collectively, a "Global Security") registered in the name of
a depositary (the "Depositary") or a nominee of the Depositary identified in the
Prospectus Supplement relating to such series. Except as set forth below, a
Global Security may be transferred, in whole or in part, only to the Depositary
or another nominee of the Depositary.
Upon the issuance of a Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with the Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters, dealers or agents. Ownership of beneficial interests in a Global
Security will be limited to participants or persons that may hold interests
through participants. Ownership of interests in such Global Security will be
shown on, and the transfer of those ownership interests will be effected only
through, records maintained by the Depository (with respect to participants'
interests) and such participants (with respect to the owners of beneficial
interests in such Global Security). The laws of some jurisdictions may require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depositary, or its nominee, is the registered holder and
owner of such Global Security, the Depositary or such nominee, as the case may
be, will be considered the sole owner and holder of the related Debt Securities
for all purposes of such Debt Securities and for all purposes under the Debt
Securities Indenture. Except as set forth below or as otherwise provided in the
applicable Prospectus Supplement, owners of beneficial interests in a Global
Security will not be entitled to have the Debt Securities represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of Debt Securities in definitive form and will not be
considered to be the owners or holders of any Debt Securities under the
Indenture or such Global Security.
Accordingly, each person owning a beneficial interest in a Global Security
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder of Debt Securities under the
applicable Indenture or such Global Security. The Company understands that under
existing industry practice, in the event the Company requests any action of
holders of Debt Securities or an owner of a beneficial interest in a Global
Security desires to take any action that the Depositary, as the holder of such
Global Security is entitled to take, the Depositary would authorize the
participants to take such action, and that the participants would authorize
beneficial owners owning through such participants to take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Payment of principal of and premium, if any, and interest, if any, on Debt
Securities represented by a Global Security will be made to the Depositary or
its nominee, as the case may be, as the registered owner and holder of such
Global Security.
The Company expects that the Depositary, upon receipt of any payment of
principal, premium, if any, or interest, if any, in respect of a Global
Security, will credit immediately participants' accounts with payments in
amounts proportionate to the irrespective beneficial interests in the principal
amount of such Global Security as shown on the records of the Depositary. The
Company expects that payments by participants to owners of beneficial interests
in a Global Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name," and
will be the responsibility of such participants. Neither the Company nor the
applicable Trustee nor any agent of the Company or the applicable Trustee will
have any responsibility or liability for any aspect of the records relating to,
or payments made on account of, beneficial ownership interests in a Global
Security for any Debt Securities or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests or for any other
aspect of the relationship between
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the Depositary and its participants or the relationship between such
participants and the owners of beneficial interests in such Global Security
owning through such participants.
Unless and until it is exchanged in whole or in part for Debt Securities in
definitive form, a Global Security may not be transferred except as a whole by
the Depositary to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
Unless otherwise provided in the applicable Prospectus Supplement, Debt
Securities represented by a Global Security will be exchangeable for Debt
Securities in definitive form of like tenor as such Global Security in
denominations of $1,000 and in any greater amount that is an integral multiple
thereof if (i) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or if at any time the
Depositary ceases to be a clearing agency registered under the Exchange Act,
(ii) the Company in its discretion at any time determines not to have all of the
Debt Securities represented by a Global Security and notifies the applicable
Trustee thereof or (iii) an Event of Default has occurred and is continuing with
respect to the Debt Securities. Any Debt Security that is exchangeable pursuant
to the preceding sentence is exchangeable for Debt Securities issuable in
authorized denominations and registered in such names as the Depositary shall
direct. Subject to the foregoing, a Global Security is not exchangeable, except
for a Global Security or Global Securities of the same aggregate denominations
to be registered in the name of the Depositary or its nominee.
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default under
the Indentures with respect to Debt Securities of any series (unless such event
is specifically inapplicable to a particular series as described in the
Prospectus Supplement relating thereto): (a) failure to pay any interest on any
Debt Security of that series when due, continued for 30 days; (b) failure to pay
principal of or any premium on any Debt Security of that series when due; (c)
failure to deposit any sinking fund payment, when due, in respect of any Debt
Security of that series; (d) failure to perform any other covenant of the
Company in the Indenture (other than a covenant included in the Indenture solely
for the benefit of a series of Debt Securities other than that series),
continued for 60 days after written notice as provided in the Indenture; (e)
certain events of bankruptcy, insolvency or reorganization involving the
Company; and (f) any other Event of Default provided with respect to Debt
Securities of that series. (Section 501) No Event of Default described above
with respect to a particular series of Debt Securities necessarily constitutes
an Event of Default with respect to any other series of Debt Securities.
Subject to the provisions of the Indentures relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
Indentures at the request or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonable security or indemnity.
(Sections 507 and 603) Subject to certain provisions, including those requiring
security and indemnification of the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of any series will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee. (Section 512)
The Indenture provides that the Company will deliver to the Trustee, within
120 days after the end of each fiscal year, an Officers' Certificate, stating as
to each signer thereof as to his knowledge of the Company's compliance with all
conditions and covenants under the Indenture. (Section 1005)
If an Event of Default shall occur and be continuing with respect to Debt
Securities of any series, either the Trustee or the Holders of at least 25% in
aggregate principal amount of all Outstanding Debt Securities of that series may
accelerate the maturity of all Debt Securities of that series; provided,
however, that after such acceleration, but before a judgment or decree based on
acceleration, the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration if all Events of Default, other than the
non-payment of accelerated principal, have been cured or waived as provided in
the Indenture. (Section 502) For information as to waiver of defaults, see
"Modifications and Waiver" below.
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No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default and unless also the Holders of
at least 25% in aggregate principal amount of the Outstanding Debt Securities of
that series shall have made written request, and offered reasonable indemnity,
to the Trustee to institute such proceeding as trustee, and the Trustee shall
not have received from the Holders of a majority in aggregate principal amount
of the Outstanding Debt Securities of that series a direction inconsistent with
such request and shall have failed to institute such proceedings within 60 days.
(Section 507). However, such limitations generally do not apply to a suit
instituted by a Holder of a Debt Security for the enforcement of payment of the
principal or interest on such Security on or after the respective due dates
expressed in such Debt Security. (Section 508)
The Trustee will, with certain exceptions, give Holders notice of all
Events of Defaults known to the Trustee within 90 days after the occurrence
thereof. (Section 601)
MODIFICATIONS AND WAIVER
Modifications and amendments of an Indenture may be made by the Company and
the relevant Trustee with the consent of the Holders of not less than a majority
in aggregate principal amount of the Outstanding Debt Securities of each series
affected by such modification or amendment; provided, however that no such
modification or amendment may, without the consent of the Holder of each
Outstanding Debt Security affected thereby, (a) change the Stated Maturity of
the principal of, or any installment of principal of or interest on any Debt
Security, (b) reduce the principal amount of, rate of interest on or any premium
payable upon the redemption of any Debt Security, (c) reduce the amount of
principal of an Original Issue Discount Security payable upon acceleration of
the Maturity thereof, (d) change the Place of Payment where, or the Currency in
which, principal, premium, if any, or interest on any Debt Security is payable,
(e) adversely affect any right to convert or exchange any Debt Security, (f)
impair the right to institute suit for the enforcement of any payment on or with
respect to any Debt Security, (g) reduce the percentage in principal amount of
Outstanding Debt Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the Indenture or for waiver of certain
defaults, or (h) modify any of the provisions set forth in this paragraph except
to increase any such percentage or to provide that certain other provisions of
the Indenture may not be modified or waived without the consent of the holder of
each Outstanding Debt Security affected thereby. (Section 902)
The Holders of at least a majority in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of the Holders of all
the Debt Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain provisions of the Indenture. (Section
1006) The Holder of not less than a majority in aggregate principal amount of
the Outstanding Debt Securities of each series may, on behalf of all Holders of
Debt Securities of that series, waive any past default under the Indenture with
respect to Debt Securities of that series, except a default (a) in the payment
of principal of, any premium on or any interest on any Debt Security of such
series or (b) in respect of a covenant or provision of the Indenture which
cannot be modified or amended without the consent of the Holder of each
Outstanding Debt Security of such series affected thereby. (Section 513)
The Indentures provide that in determining whether the Holders of the
requisite principal amount of the Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or whether a quorum is present at a meeting of Holders of Debt Securities, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon acceleration of the
Maturity thereof. (Section 101)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Debt Securities under the Indentures, may consolidate with or merge into, or
transfer or lease its assets substantially as an entirety to, any Person which
is a corporation, partnership or trust organized and validly existing under the
laws of any
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domestic jurisdiction, or may permit any such Person to consolidate with or
merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, provided that any successor Person
expressly assumes the Company's obligations on the Debt Securities and under the
Indentures, that both immediately before and after giving effect to the
transaction, no Event of Default or Default shall have occurred and be
continuing, and that certain other conditions are met. (Section 801)
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide that, if such provision is made applicable to the
Debt Securities of any series pursuant to the provisions of the Indentures, the
Company may elect (i) to defease and be discharged from any and all obligations
in respect of such Debt Securities except for certain obligations to register
the transfer or exchange of such Debt Securities, to replace temporary,
destroyed, stolen, lost or mutilated Debt Securities, to maintain paying
agencies and to hold monies for payment in trust ("defeasance") or (ii) to be
released from its obligations with respect to certain covenants applicable to
the Debt Securities of any series ("covenant defeasance"), in either case upon
the deposit with the applicable Trustee (or other qualifying trustee), in trust,
of money and/or Government Obligations, which through the payment of interest
and principal in accordance with their terms will provide money in an amount
sufficient to pay the principal of and any premium and interest on the Debt
Securities of such series on the respective Stated Maturities and any mandatory
sinking fund payments or analogous payments on the days payable, in accordance
with the terms of the relevant Indenture and the Debt Securities of such series.
Upon the occurrence of a defeasance, the Company will be deemed to have paid and
discharged the entire indebtedness represented by such Debt Securities (except
for (i) the rights of Holders of such Debt Securities to receive, solely from
the trust funds deposited to defease such Debt Securities, payments in respect
of the principal of, premium, if any, and interest, if any, on such Debt
Securities when such payments are due and (ii) certain other obligations as
provided in the relevant Indenture). (Section 1402) Upon the occurrence of a
covenant defeasance, the Company will be released only from its obligations to
comply with certain covenants contained in the relevant Indenture relating to
such Debt Securities, will continue to be obligated in all other respects under
such Debt Securities and will continue to be contingently liable with respect to
the payment of principal, interest, if any, and premium, if any, with respect to
such Debt Securities. (Section 1403)
Unless otherwise specified in the applicable Prospectus Supplement, the
Company may not effect a defeasance or a covenant defeasance unless, among other
things, the Company has delivered to the applicable Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Debt Securities of
such series will not recognize gain or loss for Federal income tax purposes as a
result of such deposit, defeasance or covenant defeasance and will be subject to
Federal income tax on the same amount, and in the same manner and at the same
times as would have been the case if such deposit, defeasance or covenant
defeasance had not occurred. Such opinion, in the case of full defeasance (in
contrast to a more limited covenant defeasance), must refer to and be based upon
a ruling of the Internal Revenue Service or a change in applicable Federal
income tax law occurring after the date of the Indenture. The Prospectus
Supplement relating to a series may further describe the provisions, if any,
permitting such defeasance or covenant defeasance with respect to the Debt
Securities of a particular series. (Section 1404)
Subject to satisfying the required opinion and other conditions, the
Company may exercise its full defeasance option with respect to any series of
Debt Securities notwithstanding its prior exercise of a more limited covenant
defeasance option. If the Company exercises its full defeasance option, payment
of such Debt Securities may not be accelerated because of a Default or an Event
of Default. If the Company exercises a more limited covenant defeasance option,
payment of such Debt Securities may not be accelerated by reason of a Default or
an Event of Default with respect to the covenants to which such covenant
defeasance is applicable. If an acceleration were to occur for other reasons,
however, and such Debt Securities were declared due and payable, the amount of
money and Government Obligations on deposit with the Trustee will be sufficient
to pay amounts due on the Debt Securities of such series at the time of their
Stated Maturity but may not be sufficient to pay amounts due on the Debt
Securities of such series at the time of the acceleration resulting from such
acceleration. In the event of such an acceleration following a covenant
defeasance, however, the Company would remain liable for any such insufficiency.
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NOTICES
Notices to Holders of Registered Securities will be given by mail to the
addresses of such Holders as they appear in the Security Register. (Section
106)
REPLACEMENT OF SECURITIES
Any mutilated Debt Security will be replaced by the Company at the expense
of the Holder upon surrender of such Debt Security to the applicable Trustee.
Debt Securities that are destroyed, stolen or lost will be replaced by the
Company at the expense of the Holder upon delivery to the applicable Trustee of
evidence of the destruction, loss or theft thereof satisfactory to the Company
and the applicable Trustee. In the case of a destroyed, lost or stolen Debt
Security an indemnity satisfactory to the applicable Trustee and the Company may
be required at the expense of the Holder of such Debt Security before a
replacement Debt Security will be issued. (Section 306)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the laws of the State of New York. (Section 111)
REGARDING THE TRUSTEE
Each of the Trustees is currently one of the participating lenders for the
Company's $1 billion credit facility and provides certain other banking and
financial services to the Company in the ordinary course of business and may
provide other such services in the future.
DESCRIPTION OF CAPITAL STOCK
The Company is authorized to issue 150,000,000 shares of common stock, par
value $.10 per share (the "Common Stock"), and up to 5,000,000 shares of
preferred stock (the "Preferred Stock") which may be issued in one or more
series established by the Board of Directors of the Company from time to time.
COMMON STOCK
Holders of shares of Common Stock are entitled to one vote per share on all
matters to be voted on by shareholders and are not entitled to cumulative voting
in the election of directors, which means that the holders of a majority of the
shares voting for the election of directors can elect all of the directors then
standing for election, if they choose to do so. The holders of shares of Common
Stock are entitled to share ratably in such dividends, if any, as may be
declared on shares of Common Stock from time to time by the Board of Directors
in its discretion from funds legally available therefor. The holders of shares
of Common Stock are entitled to share pro rata in distributions to shareholders
upon liquidation of the Company, subject to any prior rights of any holders of
Preferred Stock issued after the date of this Prospectus and then outstanding
(see "Preferred Stock" below).
The holders of shares of Common Stock have no preemptive or other
subscription or conversion rights, and there are no redemption provisions with
respect to such shares. All of the outstanding shares of Common Stock are fully
paid and non-assessable. The Company's Common Stock is listed on the New York
Stock Exchange ("NYSE"). Any Common Stock offered hereby will be listed on the
NYSE upon official notice of issuance.
PREFERRED STOCK
Pursuant to the Company's Restated Articles of Incorporation, the Board of
Directors of the Company may from time to time authorize the issuance of up to
5,000,000 shares of Preferred Stock in one or more series, having such voting
rights, dividend rates and preferences, redemption prices, sinking funds,
convertibil-
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ity provisions, liquidation and certain other preferences, rights and provisions
as the Board of Directors of the Company may fix in providing for the issuance
of such series.
Shares of Preferred Stock may be issued for any general corporate purposes,
including acquisitions. If and when the Board of Directors should authorize the
issuance of any shares of Preferred Stock, dividend requirements and any sinking
fund, conversion or redemption provisions of such an issue could decrease the
amount of earnings and assets available for distribution to holders of shares of
Common Stock.
ANTITAKEOVER PROVISIONS
The Company's Bylaws adopt certain "fair price" provisions of the Georgia
Business Corporation Code. These provisions impose special shareholder or
director voting requirements for certain business combinations involving a
beneficial owner of 10% or more of the Company's outstanding voting shares,
unless a "fair price" test is met. The Company's Bylaws also adopt other
provisions of the Georgia Business Corporation Code prohibiting certain business
combinations involving a beneficial owner of 10% or more of the Company's voting
shares unless either: (1) prior to the date the owner acquired 10% or more of
the Company's voting shares, the Board of Directors of the Company approved
either the proposed business combination or the acquisition of 10% or more of
the Company's voting shares; (2) in the transaction which resulted in
acquisition of 10% or more of the Company's voting shares, the shareholder
acquired beneficial ownership of at least 90% of the Company's voting shares,
excluding shares owned by directors or officers of the Company or their
affiliates or associates, any subsidiary of the Company or any employee stock
plans of the Company in which the employee participants do not have the right to
determine confidentially whether shares held subject to the plan would be
tendered in a tender or exchange offer; or (3) the beneficial owner of 10% of
the Company's voting shares increases his beneficial ownership to at least 90%
of the Company's voting shares and the business combination is approved by the
holders of a majority of FFMC voting shares excluding shares owned by the 90%
shareholder, any director or officer of FFMC, his affiliates or associates, any
subsidiary of FFMC and any employee stock plan of FFMC in which the participants
do not have the right to determine confidentially whether shares held subject to
the plan will be tendered in a tender or exchange offer.
The authority of the Board of Directors of the Company to issue shares of
Preferred Stock and to determine the dividend, conversion, redemption, voting
and other provisions of the Preferred Stock could be exercised in a manner that
might discourage any attempt by a third party to take over the Company. Also,
the Restated Articles of Incorporation of the Company authorize the issuance of
a large number of additional shares of Common Stock. The availability of a large
number of authorized and unissued shares could be used to resist any effort to
take over the Company. For example, the Board of Directors, without shareholder
approval, could sell a large block of stock to a friendly holder or implement a
rights plan entitling all shareholders (excluding any person or entity that
might be accumulating a large, hostile position in the Company's stock) to
receive a large distribution of stock designed to dilute the interest of any
such hostile shareholder.
PLAN OF DISTRIBUTION
The Company may sell Securities to or through one or more underwriters, and
also may sell the Debt Securities directly to one or more other purchasers or
through agents. Such underwriters may include Morgan Stanley & Co. Incorporated
or a group of underwriters represented by firms including Morgan Stanley & Co.
Incorporated. Morgan Stanley & Co. Incorporated may also act as agent.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
The Prospectus Supplement sets forth the terms of the offering of the
particular Securities to which such Prospectus Supplement relates, including (i)
the name or names of any underwriters or agents with whom the Company has
entered into arrangements with respect to the sale of such Securities, (ii) the
initial public offering or purchase price of such Securities, (iii) any
underwriting discounts, commissions and other items
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constituting underwriters' compensation from the Company and any other
discounts, concessions or commissions allowed or reallowed or paid by any
underwriters to other dealers, (iv) any commissions paid to any agents, (v) the
net proceeds to the Company and (vi) the securities exchanges, if any, on which
such Securities will be listed.
Unless otherwise set forth in the Prospectus Supplement relating to a
particular series of Debt Securities, the obligations of the underwriters to
purchase such Securities will be subject to certain conditions precedent and
each of the underwriters with respect to such Securities will be obligated to
purchase all of the Securities allocated to it if any such Securities are
purchased. Any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
The Securities may be offered and sold by the Company directly or through
agents designated by the Company from time to time. Unless otherwise indicated
in the Prospectus Supplement, any such agent or agents will be acting on a best
efforts basis for the period of its or their appointment. Any agent
participating in the distribution of Securities may be deemed to be an
"underwriter," as that term is defined in the Securities Act, of the Securities
so offered and sold. The Securities also may be sold at the applicable price to
the public set forth in the Prospectus Supplement relating to particular
Securities to dealers who later resell such Securities to investors. Such
dealers may be deemed to be "underwriters" within the meaning of the Securities
Act.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Company, to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act.
If so indicated in the Prospectus Supplement relating to particular
Securities, the Company will authorize underwriters, dealers or agents to
solicit offers by certain institutions to purchase Securities of such series
from the Company pursuant to delayed delivery contracts providing for payment
and delivery at a future date. Such contracts will be subject only to those
conditions set forth in the Prospectus Supplement and the Prospectus Supplement
will set forth the commission payable for solicitation of such contracts.
LEGAL MATTERS
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Securities offered hereby will be passed upon for the Company by
Sutherland, Asbill & Brennan, Atlanta, Georgia, and for any underwriters or
agents by Shearman & Sterling, New York, New York. George L. Cohen, a partner in
Sutherland, Asbill & Brennan, is a director of the Company. Attorneys at
Sutherland, Asbill & Brennan participating in matters related to the offering
beneficially owned 14,528 shares of the Company's Common Stock as of December 1,
1994.
EXPERTS
The financial statements and related financial statement schedules of the
Company incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their reports which are incorporated herein by reference,
and have been so incorporated in reliance upon the reports of such firm, given
upon their authority as experts in accounting and auditing.
The financial statements of Western Union Financial Services, Inc.
incorporated in this Prospectus by reference to the Company's Form 8-K dated
November 4, 1994 have been so incorporated in reliance upon the report of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in accounting and auditing.
34
<PAGE> 48
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Expenses in connection with the issuance and distribution of the securities
being registered hereby are estimated below, all of which will be paid by the
Registrant.
<TABLE>
<S> <C>
SEC Registration Fee..................................................... $ 344,830
Legal Fees and Expenses.................................................. 300,000
Printing................................................................. 135,000
Accounting Fees and Expenses............................................. 105,000
Blue Sky Fees and Expenses............................................... 15,000
NASD Filing Fee.......................................................... 30,500
Trustees' Fees and Expenses.............................................. 15,000
Rating Agency Fees....................................................... 135,000
Miscellaneous Expenses................................................... 19,670
----------
Total.......................................................... $1,100,000
=========
</TABLE>
- ---------------
* To be supplied by amendment
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Georgia Business Corporation Code
Section 14-2-851 of the Georgia Business Corporation Code (the "GBCC")
authorizes a Georgia corporation to indemnify a director against loss or expense
if it is determined that the director acted in a manner he believed in good
faith to be in or not opposed to the best interests of the corporation and, in
the case of any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful, except that in proceedings to obtain a judgment in favor
of the corporation, indemnification would be limited to reasonable expenses
incurred in connection with the proceeding, and, in the case of adjudicated
liability, only if the director did not derive an improper personal benefit.
This indemnification under the GBCC may be made by a Georgia corporation
only upon (1) a determination by the majority vote of a quorum of non-party
directors or if such a quorum cannot be obtained, by majority vote of a
committee consisting of two or more non-party directors, by special legal
counsel, or by the affirmative vote of shareholders excluding shares owned or
the voting of which is controlled by directors who are parties to the
proceeding, that indemnification is proper because the statutory standard of
conduct has been met and (2) authorization by majority vote of a quorum of
non-party directors or a special committee consisting of two or more non-party
directors, or if such a quorum or committee cannot be obtained, by majority vote
of the full board of directors, or by the shareholders as described above.
Section 14-2-852 of the GBCC also provides for the mandatory
indemnification of a director to the extent the director has been successful
(whether or not on the merits) in the defense of any proceeding to which he was
a party, unless provided otherwise by the articles of incorporation. In
addition, section 14-2-854 of the GBCC authorizes indemnification of a director
by court order if the court determines that the director is entitled to
mandatory indemnification or is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or not the
director met the statutory standard of conduct, or was adjudged liable to the
corporation or improperly derived a personal benefit, but in that event
court-ordered indemnification is limited to reasonable expenses incurred in
connection with the proceeding. Furthermore, section 14-2-856 of the GBCC
permits broader indemnification, including indemnification against liability to
the corporation, if authorized by the articles of incorporation or by a bylaw,
resolution or contract authorized by majority vote of the shareholders entitled
to vote thereon; however, such indemnification may not be provided to a director
against liability for appropriation of a business opportunity of the corporation
in violation of the director's duties, acts or omissions not in good faith or
which involve intentional misconduct or a knowing
II-1
<PAGE> 49
violation of law, authorization of any dividend, redemption or distribution of
assets in violation of the GBCC, or any transaction from which the director
derived an improper personal benefit.
Section 14-2-857 of the GBCC permits a Georgia corporation to indemnify an
officer, employee or agent who is not a director to the extent not inconsistent
with public policy. An officer who is not a director is also entitled to the
mandatory indemnification and court-ordered indemnification available to a
director.
The GBCC provides that a Georgia corporation has the power to purchase and
maintain insurance on behalf of any director, officer, employee or agent of the
corporation, or one serving as such for another entity or enterprise at the
request of the corporation against liability whether or not the corporation
would have the power to indemnify him against such liability under the GBCC.
Bylaws and Restated Articles of Incorporation
Article Seven of the Registrant's Bylaws implements the power granted by
the 1989 revision of the GBCC regarding indemnification of directors and
officers. Under Article Seven, the Registrant is required to indemnify each
person who is or was a director or officer of the Registrant (including the
heirs, executors, administrators or estate of such person) or is or was serving
at the request of the Registrant as a director, officer, partner, trustee or
employee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise who is made a party to a proceeding because he
is or was a director or officer of the Registrant or was serving any such other
entity at the Registrant's request against liability incurred in the proceeding
if he acted in a manner he believed in good faith to be in or not opposed to the
best interests of the Registrant and, in the case of any criminal proceeding, he
had no reasonable cause to believe his conduct was unlawful. Indemnification
required by Article Seven also covers reasonable expenses of any such
proceeding, including payment or reimbursement of such expenses in advance of
final disposition of the proceeding, if the person affirms in writing his good
faith belief that he is entitled to such indemnification and agrees to repay any
advances if it is ultimately determined that he is not entitled to such
indemnification.
Unless ordered by a court based on a determination that the person is
entitled to such indemnification because he was successful on the merits or
otherwise in defending against a claim or a determination that he is fairly and
reasonably entitled to indemnification in view of all the relevant
circumstances, indemnification is required under Article Seven only if there is
a determination pursuant to Section 14-2-855 of the GBCC that the person to be
indemnified has met the standard of conduct required for indemnification and the
determination is made by: (1) a majority vote of a quorum of directors not
parties to the proceeding or, in the absence of such quorum, by a majority vote
of a committee of two or more directors not parties to the proceeding; (2)
special legal counsel; or (3) the shareholders (excluding the votes of shares
owned by or voted under the control of directors who are parties to the
proceeding).
As expressly authorized by Section 14-2-856 of the GBCC, the Board of
Directors approved and submitted to the Registrant's shareholders, who also
approved at their May 2, 1990 annual meeting, the addition of a new Section 7.2
of the Bylaws. Section 7.2 grants to directors and officers of the Registrant
and its subsidiaries additional rights to indemnification with respect to
proceedings brought by the Registrant or shareholders' derivative actions
brought on its behalf, except where the person is adjudged liable to the
Registrant or is subjected to injunctive relief in its favor for any of the
following: (1) appropriation of any business opportunity of the Registrant; (2)
intentional misconduct or knowing violations of law; (3) unlawful distributions;
or (4) any transaction from which he received an improper personal benefit.
Section 7.2 also requires advances or reimbursements of expenses of the
director or officer in connection with any such proceeding if he affirms his
good faith belief that his conduct does not fall within the enumerated
exceptions to such indemnification and he agrees to repay any expense advances
or reimbursements if it is ultimately determined that he is not entitled to
indemnification under Section 7.2. Any indemnification under Section 7.2 (other
than advances or reimbursements of expenses) shall be made only if there has
been a determination that the director or officer is entitled to such
indemnification under Section 7.2 of the Bylaws and Section 14-2-856 of the GBCC
and such determination is made by: (1) a majority vote of a quorum of directors
not parties to the proceeding or, in the absence of such quorum, a majority vote
of a committee of two or more directors not parties to the proceeding; (2)
special legal counsel; or (3) the
II-2
<PAGE> 50
shareholders (excluding the votes owned by or voted under the control of
directors who are parties to the proceeding).
Article VIII of the Registrant's Restated Articles of Incorporation,
adopted by its shareholders in 1987, exculpates directors of the Registrant as
to personal liabilities to the Registrant or its shareholders for monetary
damages for breaches of the director's duties, with the same enumerated
exceptions as applicable to indemnification under Section 7.2 of the
Registrant's Bylaws. Accordingly, Section 7.2 as to the Registrant's directors
coordinates the indemnification rights with the liability exculpation exceptions
under the Registrant's Restated Articles of Incorporation. Indemnification
authorized by Section 7.2, however, also extends to liabilities incurred by the
Registrant's officers and by persons serving, at the Registrant's request, in
various capacities with other entities, such as the Registrant's subsidiaries,
subject to the exceptions and conditions set forth in Section 7.2.
Underwriting Agreements
The Underwriting Agreements provide (or in the case of those not yet filed
are expected to provide) for the underwriters to indemnify the officers,
directors and controlling persons (as that term is defined in section 15 of the
Securities Act of 1933) of the Registrant against certain losses, claims,
damages, liabilities or expenses arising out of alleged material misstatements
or omissions in the Registration Statement or Prospectus made in reliance upon
or in conformity with written information furnished by or on behalf of the
underwriters to the Registrant for use in the Registration Statement or
Prospectus.
Insurance Policies
The Registrant currently maintains an insurance policy providing
reimbursement of indemnification payments to officers and directors of the
Registrant and its subsidiaries and reimbursement of certain liabilities
incurred by directors and officers of the Registrant and its subsidiaries in
their capacities as such, to the extent that they are not indemnified by the
Registrant.
ITEM 16. EXHIBITS
<TABLE>
<C> <S> <C>
1.1 -- Form of Underwriting Agreement covering the Registrant's Senior Convertible
Debentures due 1999.
1.2 -- Form of Underwriting Agreements for other Securities.*
4.1 -- Proposed Form of Indenture between the Company and The Chase Manhattan Bank (National
Association), as Trustee.**
4.2 -- Indenture, dated as of December 5, 1994, between the Company and NationsBank of
Georgia, National Association, as Trustee.
4.3 -- Form of First Supplemental Indenture, dated as of December 5, 1994, between the
Company and NationsBank of Georgia, National Association, as Trustee.
4.4 -- See Articles V, VI and VIII of the Registrant's Restated Articles of Incorporation
(filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1994 and incorporated herein by reference), and Articles
1, 2, 5 and 9 of the Registrant's Bylaws, as amended (filed as an exhibit to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30,
1993 and incorporated herein by reference).
5.1 -- Opinion of Sutherland, Asbill & Brennan as to validity of securities being
registered.
12.1 -- Statement of Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Deloitte & Touche LLP.***
23.2 -- Consent of Price Waterhouse LLP.***
23.3 -- Consent of Sutherland, Asbill & Brennan will be contained within Opinion of Counsel
filed as Exhibit 5.1.
24.1 -- Power of Attorney authorizing Patrick H. Thomas and M. Tarlton Pittard to sign on
behalf of the specified directors is contained on page II-3 of this Registration
Statement as filed on November 4, 1994.
</TABLE>
II-3
<PAGE> 51
<TABLE>
<C> <S> <C>
25.1 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of
1939 of The Chase Manhattan Bank (National Association).**
25.2 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of
1939 of NationsBank of Georgia, National Association.**
</TABLE>
- ---------------
* To be filed by Amendment to this Registration Statement or by Current Report
on Form 8-K.
** Filed on November 4, 1994.
*** Filed on November 22, 1994.
ITEM 17. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this Registration Statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
provided, however, that the undertakings set forth in paragraphs (i) and (ii)
above shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of such Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-4
<PAGE> 52
4. The undersigned Registrant hereby undertakes that:
(a) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registration pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act shall be deemed to be part of
this Registration Statement as of the time it was declared effective.
(b) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
5. The undersigned Registrant hereby undertakes to file an application for
the purpose of determining the eligibility of each trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Securities and Exchange Commission under
Section 305(b)(2) of the Trust Indenture Act.
II-5
<PAGE> 53
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to its
Registration Statement to be signed on its behalf by the undersigned thereunto
duly authorized, in the City of Atlanta, State of Georgia on December 5, 1994.
FIRST FINANCIAL MANAGEMENT CORPORATION
By: /s/ PATRICK H. THOMAS
----------------------------------
Patrick H. Thomas
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
has been signed by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------------------- ------------------------------------------------
<C> <S> <C>
/s/ PATRICK H. THOMAS Chairman of the Board, December 5, 1994
- --------------------------------------------- President and Chief
Patrick H. Thomas Executive Officer
/s/ M. TARLTON PITTARD Senior Executive Vice December 5, 1994
- --------------------------------------------- President, Treasurer,
M. Tarlton Pittard Chief Financial Officer
and Director
/s/ RICHARD MACCHIA Executive Vice President, December 5, 1994
- --------------------------------------------- Finance and Principal
Richard Macchia Accounting Officer
George L. Cohen, Directors (The named December 5, 1994
Robert E. Coleman, individuals, together
Jack R. Kelly, Jr., with Mr. Thomas and Mr.
Henry A. Leslie, Pittard,
Charles B. Presley, and constitute all of
Virgil R. Williams the Directors)
By: /s/ PATRICK H. THOMAS
- ---------------------------------------------
Patrick H. Thomas
Attorney-in-Fact
</TABLE>
II-6
<PAGE> 54
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIAL
PAGE
EXHIBIT NO. DESCRIPTION NUMBER
----------- --------------------------------------------------------------------- ----------
<C> <C> <S> <C>
1.1 -- Form of Underwriting Agreement covering the Registrant's Senior
Convertible Debentures due 1999.
1.2 -- Form of Underwriting Agreements for other Securities.*
4.1 -- Proposed Form of Indenture between the Company and The Chase
Manhattan Bank (National Association), as Trustee.**
4.2 -- Indenture, dated as of December 5, 1994, between the Company and
NationsBank of Georgia, National Association, as Trustee.
4.3 -- Form of First Supplemental Indenture, dated as of December 5, 1994,
between the Company and NationsBank of Georgia, National Association,
as Trustee.
4.4 -- See Articles V, VI and VIII of the Registrant's Restated Articles of
Incorporation (filed as an exhibit to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1994 and
incorporated herein by reference), and Articles 1, 2, 5 and 9 of the
Registrant's Bylaws, as amended (filed as an exhibit to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1993 and incorporated herein by reference).
5.1 -- Opinion of Sutherland, Asbill & Brennan as to validity of securities
being registered.
12.1 -- Statement of Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Deloitte & Touche LLP.***
23.2 -- Consent of Price Waterhouse LLP.***
23.3 -- Consent of Sutherland, Asbill & Brennan will be contained within
Opinion of Counsel filed as Exhibit 5.1.
24.1 -- Power of Attorney authorizing Patrick H. Thomas and M. Tarlton
Pittard to sign on behalf of the specified directors is contained on
page II-3 of this Registration Statement as filed on November 4,
1994.
25.1 -- Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank (National
Association).**
25.2 -- Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of NationsBank of Georgia, National
Association.**
</TABLE>
- ---------------
* To be filed by Amendment to this Registration Statement or by Current Report
on Form 8-K.
** Filed on November 4, 1994.
*** Filed on November 22, 1994.
<PAGE> 1
EXHIBIT 1.1
$400,000,000
First Financial Management Corporation
___% Senior Convertible Debentures due 1999
UNDERWRITING AGREEMENT
December __, 1994
<PAGE> 2
December ___ 1994
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co., Inc.
CS First Boston Corporation
c/o Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Dear Sirs:
First Financial Management Corporation, a Georgia corporation
(the "Company") proposes to issue and sell to the several Underwriters named in
Schedule I hereto (the "Underwriters") $400,000,000 principal amount of its __%
Senior Convertible Debentures due 1999 (the "Initial Debt Securities"). The
Company also grants to the Underwriters, severally and not jointly, the option
described in Section 2 to purchase all or any part of the additional principal
amount of debt securities as set forth in Schedule I to cover over-allotments
(the "Option Debt Securities") on the terms and conditions stated herein. The
Option Debt Securities together with the Initial Debt Securities are herein
called the "Debt Securities". The Debt Securities will be issued pursuant
to the provisions of an Indenture dated as of December 5, 1994 (as amended
or supplemented, the "Indenture") between the Company and NationsBank
of Georgia, National Association, as Trustee (the "Trustee").
The Initial Debt Securities and the Option Debt Securities are
convertible (the "Initial Convertible Debt Securities" and the "Option
Convertible Debt Securities," respectively, and, collectively, the "Convertible
Debt Securities") into shares of common stock, par value $.10 per share, of the
Company (the "Common Stock"). The shares of Common Stock issuable upon
conversion of the Initial Convertible Debt Securities are referred to herein as
the "Initial Shares," and the shares of Common Stock issuable upon conversion
of any Option Convertible Debt Securities are referred to herein as the "Option
Shares," and together with the Initial Shares, are collectively herein called
the "Shares." The Convertible Debt Securities and the Shares are collectively
referred to as the "Offered Securities."
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Offered Securities. The registration statement as amended at
the time it becomes effective, including the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Securities Act of 1933, as amended (the "Securities Act"),
is hereinafter referred to as the Registration Statement; the prospectus
together with the prospectus supplement in the form first used to confirm sales
of Offered Securities is hereinafter referred to as the Prospectus (including,
in the case of all references to the Registration Statement and the
Prospectus, documents incorporated therein by reference).
<PAGE> 3
I.
The Company represents and warrants to each of the
Underwriters that:
(a) The Registration Statement has become effective; no
stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the applicable
rules and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not contain
and each such part, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations
and warranties set forth in this paragraph 1(b) do not apply (A) to
statements or omissions in the Registration Statement or the Prospectus
based upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein or (B)
to that part of the Registration Statement that consists of the Statements
of Eligibility and Qualification (Form T-1s) under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), of the Trustees.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the state of
Georgia, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary listed on Schedule II hereto (each
such subsidiary being referred to herein as a "Subsidiary") of the Company
has been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to transact
business and
-2-
<PAGE> 4
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms (i) except as the enforceability thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting creditors' rights generally and (ii) subject to general
principles of equity (regardless of whether enforceability is considered in
a proceeding at law or in equity).
(g) The Convertible Debt Securities have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, will be
entitled to the benefits of the Indenture, and will be valid and binding
obligations of the Company, enforceable in accordance with their terms (i)
except as the enforceability thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting creditors'
rights generally and (ii) subject to general principles of equity
(regardless of whether enforceability is considered in a proceeding at law
or in equity).
(h) The Convertible Debt Securities will be convertible
into the Shares of the Company in accordance with the terms of the
Indenture; the Shares initially issuable upon conversion of the Convertible
Debt Securities have been duly authorized and reserved for issuance upon
such conversion and, when issued upon such conversion, will be validly
issued, fully paid and nonassessable, and neither the shareholders of the
Company nor any other person have any statutory preemptive rights with
respect to the Convertible Debt Securities or the Shares.
(i) The execution and delivery by the Company of this
Agreement and the Indenture, the performance by the Company of its
obligations under the Indenture and the issuance and delivery of the
Convertible Debt Securities and the Shares initially issuable upon
conversion thereof, will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Company or any agreement
or other instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole, or
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any Subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement, the Indenture or the Offered
Securities, except such
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<PAGE> 5
as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Offered Securities.
(j) There has not occurred any material adverse change,
or any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(k) There are no legal or governmental proceedings
pending or threatened to which the Company or any of its Subsidiaries is a
party or to which any of the properties of the Company or any of its
Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(l) Each preliminary prospectus or prospectus supplement
filed as part of the registration statement as originally filed or as part
of any amendment thereto, or filed pursuant to Rule 424 under the
Securities Act, complied when so filed in all material respects with the
Securities Act and the rules and regulations of the Commission thereunder.
(m) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended.
(n) The Company has no reason to believe that the effect
of any and all applicable federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws") on the business, operations and properties of the
Company and its Subsidiaries will impose costs and liabilities (including,
without limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which singly or
in the aggregate, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(o) The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida);
neither the Company nor any affiliate of the Company does business with the
government of Cuba or with any person or affiliate located in Cuba.
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<PAGE> 6
II.
The Company hereby agrees to sell to the several Underwriters,
and the Underwriters, upon the basis of the representations and warranties
herein contained, but subject to the conditions hereinafter stated, agree,
severally and not jointly, to purchase from the Company the respective
principal amounts of Offered Securities set forth in Schedule I hereto opposite
their names at ______% of their principal amount -- the purchase price -- plus
accrued interest, if any, from December __, 1994 to the date of payment and
delivery.
In addition, on the basis of the representations and
warranties herein contained, and subject to the terms and conditions herein set
forth, the Company hereby grants an option to the Underwriters, severally and
not jointly, to purchase up to $60,000,000 additional principal amount of
Option Debt Securities at the same purchase price as shall be applicable to the
Initial Debt Securities. The option hereby granted will expire 30 days after
the date hereof, and may be exercised, in whole or in part (but not more than
once), only for the purpose of covering over-allotments that may be made in
connection with the offering and distribution of the Initial Debt Securities
per notice by you to the Company setting forth the principal amount of Option
Debt Securities as to which the several Underwriters are exercising this
option, and the time and date of payment and delivery thereof. Such time and
date of delivery (each, a "Date of Delivery") shall be determined by you but
shall not be later than seven full business days after the exercise of such
option, nor in any event prior to the Closing Time. If the option is exercised
as to all or any portion of the Option Debt Securities, each of the
Underwriters, acting severally and not jointly, will purchase from the Company
that portion of the aggregate number of Option Debt Securities being purchased
which the number of Initial Debt Securities set forth opposite the name of such
Underwriter become to the total number of Initial Debt Securities.
III.
The Company is advised by you that the Underwriters propose to
make a public offering of their respective portions of the Offered Securities
as soon after the Registration Statement and this Agreement have become
effective as in your judgment is advisable. The Company is further advised by
you that the Offered Securities are to be offered to the public initially at
100% of their principal amount -- the public offering price -- plus accrued
interest, if any, and to certain dealers selected by you at a price that
represents a concession not in excess of ____ of their principal amount under
the public offering price, and that any Underwriter may allow, and such dealers
may reallow, a concession, not in excess of ____% of their principal amount, to
any Underwriter or to certain other dealers.
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<PAGE> 7
IV.
Payment for the Offered Securities shall be made by certified
or official bank check or checks payable to the order of the Company in New
York Clearing House funds at the office of Shearman & Sterling, 599 Lexington
Avenue, New York, New York, at 10:00 A.M., local time, on December __, 1994, or
at such other time on the same or such other date, not later than December __,
1994, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the Closing Date.
Payment for the Offered Securities shall be made against
delivery to you for the respective accounts of the several Underwriters of the
Offered Securities registered in such names and in such denominations as you
shall request in writing not later than two full business days prior to the
date of delivery, with any transfer taxes payable in connection with the
transfer of the Offered Securities to the Underwriters duly paid.
V.
The obligations of the Company and the several obligations of
the Underwriters hereunder are subject to the condition that the Registration
Statement shall have become effective not later than the date hereof.
The several obligations of the Underwriters hereunder are
subject to the following further conditions:
(a) Subsequent to the execution and delivery of this
Agreement and prior to the Closing Date,
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g) (2) under the Securities Act; and
(ii) there shall not have occurred any change, or
any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations, of the Company and its subsidiaries,
taken as a whole, from that set forth in the Registration
Statement, that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the
Offered Securities on the terms and in the manner contemplated
in the Prospectus.
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<PAGE> 8
(b) The Underwriters shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in clause (a)(i) above and
to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date and
that the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied on or before the
Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his knowledge after due inquiry.
(c) You shall have received on the Closing Date an
opinion of Sutherland, Asbill & Brennan, counsel for the Company, dated
the Closing Date, to the effect that
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation and has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus; provided,
however, that such counsel may state that to the extent their
opinion regarding corporate power and authority might also
imply an opinion regarding due organization, such counsel is
relying solely on a presumption of regularity and continuity
without having examined any organizational minutes or other
organization procedures with respect to the Company or the
applicable corporate law in existence at the time of the
Company's organization;
(ii) each of the Subsidiaries of the Company has
been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus; provided, however, that such counsel may state
that to the extent their opinion regarding corporate power and
authority might also imply an opinion regarding due
organization, such counsel is relying solely on a presumption
of regularity and continuity without having examined any
organizational minutes or other organization procedures with
respect to any Subsidiary or the applicable corporate law in
existence at the time of any Subsidiary's organization;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iv) the Indenture has been duly qualified under
the Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company, enforceable in accordance with its
terms (a) except as the enforceability thereof may be limited
by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium or similar laws
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<PAGE> 9
affecting creditors' rights generally and (b) subject to
general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity);
(v) the Convertible Debt Securities have been
duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters in accordance with the
terms of this Agreement, will be entitled to the benefits of
the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms (a) except
as the enforceability thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or
similar laws affecting creditors' rights generally and (b)
subject to general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity);
(vi) the Convertible Debt Securities will be
convertible into the Shares of the Company in accordance with
the terms of the Indenture; the Shares initially issuable upon
conversion of the Convertible Debt Securities have been duly
authorized and reserved for issuance upon such conversion and,
when issued upon such conversion, will be validly issued,
fully paid and nonassessable, and neither the shareholders of
the Company nor any other person have any statutory preemptive
rights with respect to the Convertible Debt Securities or the
Shares;
(vii) the execution and delivery by the Company of
this Agreement and the Indenture, the performance by the
Company of its obligations under the Indenture, and the
issuance and delivery of the Convertible Debt Securities and
the shares initially issuable upon conversion thereof will not
contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or, to the best of
such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
the Company or any subsidiary, and to the best of such
counsel's knowledge, no consent, approval, authorization or
order of or qualification with any governmental body or agency
is required for the performance by the Company of its
obligations under this Agreement and the Indenture, except
such as may be required by the securities or Blue Sky laws of
the various states in connection with the offer and sale of
the Offered Securities;
(viii) the statements (1) in the Prospectus under
the captions "Description of Debt Securities," "Description of
Capital Stock" and "Description of Debentures" and (2) in the
Registration Statement under Item 15, in each case insofar as
such statements constitute summaries of the legal matters,
documents and proceedings referred to therein, fairly present
the
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<PAGE> 10
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(ix) the Company is not an "investment company" or
an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended;
(x) such counsel is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules included therein and except for that
part of the Registration Statement that consists of the Form
T-1s heretofore referred to, as to which such counsel need not
express any opinion) comply as to form in all material
respects with the Securities Act and the rules and regulations
of the Commission thereunder.
In addition, such counsel shall state that nothing has come to
such counsel's attention which causes such counsel to: (1) believe that
(except for financial statements and schedules as to which such counsel need
not express any belief and except for that part of the Registration Statement
that constitutes the Form T-1s heretofore referred to) the Registration
Statement and the prospectus included therein at the time the Registration
Statement became effective contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (2) believe that (except for
financial statements and schedules and except for that portion of the
Registration Statement that constitutes the Form T-1s hereinafter referred to,
as to which such counsel need not express any belief) the Prospectus as of the
Closing Date contained any untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(d) You shall have received on the Closing Date an
opinion of Randolph L.M. Hutto, Executive Vice President and General Counsel,
dated the Closing Date, to the effect that (i) to the best of such counsel's
knowledge, the execution and delivery by the Company of this Agreement and the
Indenture, the performance by the Company of its obligations under the
Indenture, and the issuance and delivery of the Convertible Debt Securities and
the Shares initially issuable upon conversion thereof will not contravene any
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole; (ii) after due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any of
its Subsidiaries is a party or to which any of the properties of the Company or
any of its Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or of any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required; and (iii) each document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and the Prospectus
(except for financial statements and schedules as to which counsel need not
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<PAGE> 11
express any opinion) complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder.
(e) You shall have received on the Closing Date an
opinion of Shearman & Sterling, counsel for the Underwriters, dated the Closing
Date, covering the matters referred to in subparagraphs (iii), (iv), (v),
(viii) (but only as to the statements in the Prospectus under "Description of
Debentures" and "Underwriters"), and subparagraph (x) of paragraph (c) above
and the paragraph immediately thereafter.
With respect to subparagraph (x) of paragraph (c) above and
the paragraph immediately thereafter, Sutherland, Asbill & Brennan and Shearman
& Sterling each may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto (other than the documents
incorporated therein by reference) and review and discussion of the contents
thereof, but are without independent check or verification except as specified.
Shearman & Sterling may rely on the opinion of Sutherland Asbill & Brennan with
respect to matters of Georgia law.
The opinion of Sutherland, Asbill & Brennan described in
paragraph (c) above shall be rendered to you at the request of the Company and
shall so state therein.
(f) You shall have received, on each of the date hereof
and the Closing Date, a letter dated the date hereof or the Closing Date, as
the case may be, in form and substance reasonably satisfactory to you, from
Deloitte & Touche LLP and Price Waterhouse LLP, independent public accountants
for the Company and Western Union Financial Services, Inc., respectively,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
VI.
In further consideration of the agreements of the Underwriters
herein contained, the Company covenants as follows:
(a) To furnish to you, without charge, one signed copy of
the Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto but including documents incorporated by
reference, excluding the exhibits thereto) and, during the period mentioned
in paragraph (c) below, as many copies of the Prospectus, any documents
incorporated therein by reference (excluding the exhibits thereto) and any
supplements and amendments to the Prospectus or to the Registration
Statement as you may reasonably request. The terms "supplement" and
"amendment" or "amend" as used
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<PAGE> 12
in this Agreement shall include all documents subsequently filed by the
Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended, that are deemed to be incorporated by reference in the
Prospectus.
(b) Before amending or supplementing the Registration
Statement or the Prospectus during the period from the date hereof through
the Closing Date, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement to
which you reasonably object. For a period of two years after the date
hereof, the Company will furnish to you a copy of each amendment or
supplement to the Registration Statement.
(c) If, during such period after the first date of the
public offering of the Offered Securities as in the opinion of your counsel
the Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances
when the Prospectus is delivered to a purchaser, not misleading, or if, in
the opinion of your counsel, it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to the
dealers (whose names and addresses you will furnish to the Company) to
which Offered Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as
so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Offered Securities for
offer and sale under the securities or Blue Sky laws of such jurisdictions
as you shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with (i) the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as you may
designate and (ii) any review of the offering of the Offered Securities by
the National Association of Securities Dealers, Inc.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earning statement covering the
twelve-month period ending December 31, 1995 that satisfies the provisions
of Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
(f) During the period ending 90 days after the date of
the Prospectus, it will not offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock,
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<PAGE> 13
other than (i) the Debentures offered hereby, (ii) the Common Stock
issuable upon conversion of the Debentures, (iii) securities issued by the
Company in connection with acquisitions by the Company, provided that no
such securities may be issued or sold in a public distribution during such
90-day period, (iv) shares of Common Stock, options to purchase Common
Stock, or shares of Common Stock issued upon exercise of such options,
granted or purchased (A) under the Company's existing stock option, stock
purchase and stock grant plans, or (B) under such plans that may be adopted
by the Company in the future covering up to an aggregate of 10 million
additional shares of Common Stock, and (v) shares of Common Stock issuable
upon exercise of the Company's outstanding warrants.
(g) To pay all expenses incident to the performance of
its obligations under this Agreement, including (i) the preparation and
filing of the Registration Statement and the Prospectus and all amendments
and supplements thereto, (ii) the preparation, issuance and delivery of the
Offered Securities, including any transfer taxes payable in connection with
the transfer of the Offered Securities to the Underwriters, (iii) the fees
and disbursements of the Company's counsel and accountants, (iv) the
qualification of the Offered Securities under state securities or Blue Sky
laws in accordance with the provisions of VI(d), including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of any Blue Sky or Legal
Investment Memoranda, copies of which shall be delivered to the Company,
(v) the printing and delivery to the Underwriters, in quantities as
hereinabove stated, copies of the Registration Statement and all amendments
thereto and of each preliminary prospectus and the Prospectus and any
amendments or supplements thereto, (vi) the printing and delivery to the
Underwriters of copies of any Blue Sky or Legal Investment Memoranda, (vii)
the filing fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc., made in
connection with the offering of the Offered Securities, (viii) any expenses
incurred by the Company in connection with a "road show" presentation to
potential investors and (ix) the listing of the Convertible Debt Securities
and the Common Stock on the New York Stock Exchange Inc.
VII.
The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Underwriter or any such controlling person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements
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<PAGE> 14
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you expressly
for use therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of
the sale of the Offered Securities to such person, and if the Prospectus (as so
amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Company
to such Underwriter, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus,
the Prospectus or any amendments or supplements thereto.
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either of the two preceding paragraphs,
such person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Morgan Stanley
& Co. Incorporated, in the case of parties
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<PAGE> 15
indemnified pursuant to the second preceding paragraph, and by the Company, in
the case of parties indemnified pursuant to the first preceding paragraph. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding.
If the indemnification provided for in the first or second
paragraph of this Article VII is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate public offering price of the
Offered Securities. The relative fault of the Company on the one hand and of
the Underwriters on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations
to contribute pursuant to this Article VII are several in proportion to the
respective principal amounts of Offered Securities they have purchased
hereunder, and not joint.
The Company and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Article VII were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified
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<PAGE> 16
party as a result of the losses, claims, damages and liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Article VII, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Article VII are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity.
The indemnity and contribution provisions contained in this
Article VII and the representations and warranties of the Company contained in
this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
VIII.
This Agreement shall be subject to termination by notice given
by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in your judgment, impracticable to
market the Offered Securities on the terms and in the manner contemplated in
the Prospectus.
-15-
<PAGE> 17
IX.
This Agreement shall become effective upon the later of (x)
execution and delivery hereof by the parties hereto and (y) release of
notification of the effectiveness of the Registration Statement by the
Commission.
If, on the Closing Date, any one or more of the Underwriters
shall fail or refuse to purchase Debt Securities that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of Debt
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Debt Securities to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the principal
amount of Debt Securities set forth opposite their respective names in Schedule
I bears to the principal amount of Debt Securities set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as you
may specify, to purchase the Debt Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Debt Securities that any
Underwriter has agreed to purchase pursuant to Article II be increased pursuant
to this Article IX by an amount in excess of one-ninth of such principal amount
of Debt Securities without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Debt Securities and the aggregate principal amount of Debt Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Debt Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such Debt
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company. In any such case either you or the Company shall have the
right to postpone the Closing Date but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and
in the Prospectus or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Underwriters in connection with
this Agreement or the offering contemplated hereunder.
-16-
<PAGE> 18
This Agreement may be signed in two or more counterparts, each
of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
Very truly yours,
FIRST FINANCIAL MANAGEMENT
CORPORATION
By____________________________
Accepted, December ___ , 1994
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
CS First Boston Corporation
Acting severally on behalf of
themselves and the several
Underwriters named herein.
By Morgan Stanley & Co. Incorporated
By _________________________
-17-
<PAGE> 19
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount
of Debt Securities
Underwriter To Be Purchased
- ----------- ---------------
<S> <C>
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
CS First Boston Corporation
---------------------------
Total . . . . . . . . . . . . . . . . .
( )
===========================
</TABLE>
<PAGE> 20
SCHEDULE II
For purposes of this Underwriting Agreement, the term "Subsidiary"
when capitalized shall include only the following principal subsidiaries of
First Financial Management Corporation:
<TABLE>
<CAPTION>
Subsidiary State of Incorporation
------------------------------------------------------------------------------------------
<S> <C>
Appalachian Computer Services, Inc. Kentucky
FIRST HEALTH Services Corporation Virginia
FIRST HEALTH Strategies, Inc. Delaware
GENEX Services, Inc. Pennsylvania
International Banking Technologies, Inc. Georgia
MicroBilt Corporation Georgia
National Bancard Corporation Florida
First Financial Bank Georgia
Nationwide Credit, Inc. Georgia
TeleCheck International, Inc. Georgia
TeleCheck Services, Inc. Delaware
Western Union Financial Services, Inc. Delaware
</TABLE>
<PAGE> 1
EXHIBIT 4.2
________________________________________________________________________________
FIRST FINANCIAL MANAGEMENT CORPORATION
TO
NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION,
Trustee
__________________________________________________________
Indenture
Dated as of December 5, 1994
__________________________________________________________
Providing for the Issuance
of
Senior Debt Securities
________________________________________________________________________________
<PAGE> 2
FIRST FINANCIAL MANAGEMENT CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of December 5, 1994
<TABLE>
<CAPTION>
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
<S> <C> <C>
310 (a)(1) 608
(a)(2) 608
(b) 609, 610
312 (a) 701, 702
(c) 702
314 (a) 704
(a)(4) 1005
(c)(1) 102
(c)(2) 102
(e) 102
315 (a) 602
(b) 601
(c) 602
(d) 602
(e) 515
316 (a) (last sentence) 101 ("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
317 (a)(1) 503
(a)(2) 504
318 (a) 111
(c) 111
</TABLE>
________________________
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<TABLE>
<S> <C> <C>
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 104. Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 105. Notices, etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 106. Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 107. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 203. Securities Issuable in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional Interest Reset . . . . . . . . . . . 30
SECTION 308. Optional Extension of Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 309. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 310. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 311. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C> <C>
SECTION 312. Currency and Manner of Payments in Respect of Securities . . . . . . . . . . . . . . . . . 35
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent . . . . . . . . . . . . . . . 38
SECTION 314. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 402. Application of Trust Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 403. Repayment of Moneys Held by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . 43
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . 44
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons . . . . . . . . . . 45
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest . . . . . . . . . 47
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 514. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 515. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 602. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . 52
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C> <C>
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 608. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 609. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 610. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 611. Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . 56
SECTION 612. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders . . . . . . . . . . . . . . . . . . 58
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . 58
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 705. Calculation of Original Issue Discount . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . 60
SECTION 802. Successor Person Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . 61
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . 64
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C> <C>
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1004. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1005. Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1006. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . . . . . . 73
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1304. When Securities Presented for Repayment Become Due and Payable . . . . . . . . 74
SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect Defeasance or Covenant Defeasance . . . . 76
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . 77
</TABLE>
iv
<PAGE> 7
<TABLE>
<S> <C> <C>
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions . 79
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1502. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings . . . . . . . . . . . . . . . 82
SECTION 1506. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS, AND EMPLOYEES
SECTION 1601. Exemption from Individual Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
EXHIBIT A
EXHIBIT A-1
EXHIBIT A-2
</TABLE>
v
<PAGE> 8
INDENTURE, dated as of December 5, 1994, between FIRST
FINANCIAL MANAGEMENT CORPORATION, a Georgia corporation (hereinafter called the
"Company"), having its principal office at 3 Corporate Square, Suite 700,
Atlanta, Georgia 30329 and NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION, a
national banking association organized and existing under the laws of the
United States of America, as Trustee (hereinafter called the "Trustee"), having
its Corporate Trust Office at 600 Peachtree Street, N.E., Suite 900, Atlanta,
Georgia 30308.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its senior debt
securities (hereinafter called the "Securities") evidencing its unsecured and
unsubordinated indebtedness, which may or may not be convertible into or
exchangeable for any securities of any Person (including the Company),
unlimited as to principal amount, to bear such rates of interest, to mature at
such times and to have such other provisions as shall be fixed as hereinafter
provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities and
coupons, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction"
and "self-liquidating paper," as used in TIA Section 311,
1
<PAGE> 9
shall have the meanings assigned to them in the rules of the
Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles as in effect on the date of this
Indenture, unless otherwise provided with respect to any covenant
added pursuant to Section 301(15); and
(4) the words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article
Five, Article Six and Article Ten, are defined in those Articles.
"Act," when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of
certain taxes imposed on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any authenticating agent
appointed by the Trustee pursuant to Section 612.
"Authorized Newspaper" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays, Sundays
or holidays, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Where
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different newspapers in
the same city meeting the foregoing requirements and in each case on any
Business Day.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer.
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<PAGE> 10
"Board of Directors" means the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law or executive order to
close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres,
S.A., or its successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the Chairman of
the Board of Directors, the President, the Chief Executive Officer or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU
both within the European Monetary System and for the settlement of transactions
by public institutions of or within the European Communities or (iii) any
currency unit (or composite currency) other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at 600
Peachtree Street, N.E, Suite 900, Atlanta, Georgia 30308.
"corporation" includes corporations, associations, companies
and business trusts.
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<PAGE> 11
"coupon" means any interest coupon appertaining to a Bearer
Security.
"Currency" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
ECU, issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, the European
Coal and Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"Event of Default" has the meaning specified in Article Five.
"Exchange Rate Agent," with respect to Securities of or within
any series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate
setting forth (i) the applicable Market Exchange Rate or the applicable bid
quotation and (ii) the Dollar or Foreign Currency amounts of principal (and
premium, if any) and interest, if any (on an aggregate basis and on the basis
of a Security having the lowest denomination principal amount determined in
accordance with Section 302 in the relevant currency or currency unit), payable
with respect to a Security of any series on the basis of such Market Exchange
Rate or the applicable bid quotation signed by the Treasurer, any Vice
President or any Assistant Treasurer of the Company.
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<PAGE> 12
"Foreign Currency" means any Currency, including, without
limitation, the ECU, issued by the government of one or more countries other
than the United States of America or by any recognized confederation or
association of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable,
for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the Foreign Currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect
to any coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, however, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of the or those particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Indexed Security" means a Security as to which all or certain
interest payments and/or the principal amount payable at Maturity are
determined by reference to prices, changes in prices, or differences between
prices, of securities, Currencies, intangibles, goods, articles
5
<PAGE> 13
or commodities or by such other objective price, economic or other measures as
are specified in Section 301 hereof.
"interest," when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, shall
mean interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section 1004,
includes such Additional Amounts.
"Interest Payment Date," when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency
on the other, the exchange rate between the relevant currency unit and Dollars
or such Foreign Currency calculated by the method specified pursuant to Section
301 for the Securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any conversion
of one Foreign Currency into Dollars or another Foreign Currency, the spot rate
at noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in either New York City, London or any
other principal market for Dollars or such purchased Foreign Currency, in each
case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 301, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or other principal market
for such currency or currency unit in question, or such other quotations as the
Exchange Rate Agent shall deem appropriate. Unless otherwise specified by the
Exchange Rate Agent, if there is more than one market for dealing in any
currency or currency unit by reason of foreign exchange regulations or
otherwise, the market to be used in respect of such currency or currency unit
shall be that upon which a nonresident issuer of securities designated in such
currency or currency unit would purchase such currency or currency unit in
order to make payments in respect of such securities.
"Maturity" means, when used with respect to any Security, the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment, notice of exchange or conversion or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board of Directors, the President, the Chief Executive Officer
or any Vice President, and by the
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<PAGE> 14
Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller, the
Secretary or an Assistant Secretary, of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company or who may be an employee of or other counsel
for the Company who shall be acceptable to the Trustee. The acceptance by the
Trustee of the opinion shall be evidence that such counsel is acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
and
(iv) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
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<PAGE> 15
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be
equal to the Dollar equivalent, determined as of the date such Security is
originally issued by the Company as set forth in an Exchange Rate Officer's
Certificate delivered to the Trustee, of the principal amount (or, in the case
of an Original Issue Discount Security or Indexed Security, the Dollar
equivalent as of such date of original issuance of the amount determined as
provided in clause (i) above or (iii) below, respectively) of such Security,
(iii) the principal amount of any Indexed Security that may be counted in
making such determination or calculation and that shall be deemed outstanding
for such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect to such
Security pursuant to Section 301, and (iv) Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of (or premium, if any) or interest, if any, on any
Securities or coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities
of or within any series, means the place or places where the principal of (and
premium, if any) and interest, if any, on such Securities are payable as
specified and as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a
Security to which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"Redemption Date," when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by
or pursuant to this Indenture.
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<PAGE> 16
"Redemption Price," when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" shall mean any Security which is
registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 301, whether or not
a Business Day.
"Repayment Date" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"Repayment Price" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid by or pursuant to this Indenture.
"Responsible Officer," when used with respect to the Trustee,
means any officer within the Corporate Trust Department (or any successor
department) including without limitation any vice president, any assistant vice
president, any trust officer, any assistant secretary or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person
is Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and delivered under
this Indenture, exclusive, however, of Securities of any series as to which
such Person is not Trustee.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date
fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or
any installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as such date may be
extended pursuant to the provisions of Section 308.
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<PAGE> 17
"Subsidiary" means any corporation a majority of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries of the Company. For the purposes
of this definition, "voting stock" means stock having voting power for the
election of directors, whether at all times or only so long as no senior class
of stock has such voting power by reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended, as in force at the date as of which this Indenture was
executed, except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"Valuation Date" has the meaning specified in Section 312(c).
"Yield to Maturity" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
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<PAGE> 18
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1005) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In
any case where several matters are required to be certified by, or covered by
an opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion as to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Securities
of a
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<PAGE> 19
series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of Securities of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and conclusive in favor of the Trustee and the Company and
any agent of the Trustee or the Company, if made in the manner provided in this
Section. The record of any meeting of Holders of Securities shall be proved in
the manner provided in Section 1506.
(b) The fact and date of the execution by any Person of
any such instrument or writing, or the authority of the Person executing the
same, may be proved in any manner that the Trustee deems reasonably sufficient.
(c) The ownership of Registered Securities shall be
proved by the Security Register.
(d) The ownership of Bearer Securities may be proved by
the production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership of Bearer Securities may also be proved in any
other manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in or pursuant to
a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no obligation
to do so. Notwithstanding TIA Section 316(c), such record date shall be the
record date specified in or pursuant to such Board Resolution, which shall be a
date not earlier than the date 30 days prior
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<PAGE> 20
to the first solicitation of Holders generally in connection therewith and not
later than the date such solicitation is completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or consent
by the Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later than
eleven months after the record date.
(f) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this Indenture or
at any other address previously furnished in writing to the Trustee by
the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this
Indenture provides for notice of any event to Holders of Registered Securities
by the Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders of Registered Securities or the sufficiency of
any notice to Holders of Bearer Securities given as provided herein. Any
notice mailed to a Holder in the manner herein prescribed shall be conclusively
deemed to have been received by such Holder, whether or not such Holder
actually receives such notice.
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If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given if published in an Authorized Newspaper
in The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Any such notice shall be deemed to have been given on the date
of such publication or, if published more than once, on the date of the first
such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Where the Indenture provides for notice to be given by the
Trustee on behalf of the Company, the Trustee shall give such notice in the
Company's name and at the Company's expense, provided, however, that the text
of such notice shall be prepared by the Company.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
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SECTION 109. SEPARABILITY CLAUSE. In case any provision
in this Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this
Indenture or in the Securities or coupons, express or implied, shall give to
any Person, other than the parties hereto, any Security Registrar, any Paying
Agent, any Authenticating Agent and their successors hereunder and the Holders
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the
Securities and coupons shall be governed by and construed in accordance with
the law of the State of New York without regard to principles of conflicts of
laws. This Indenture is subject to the provisions of the Trust Indenture Act
that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS. In any case where any
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity of any Security shall not be a Business Day
at any Place of Payment, then (notwithstanding any other provision of this
Indenture or any Security or coupon other than a provision in the Securities of
any series which specifically states that such provision shall apply in lieu of
this Section), payment of principal (or premium, if any) or interest, if any,
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date, Repayment Date
or sinking fund payment date, or at the Stated Maturity or Maturity; provided
that no interest shall accrue on the amount so payable for the period from and
after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund
payment date, Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES. The Registered
Securities, if any, of each series and the Bearer Securities, if any, of each
series and related coupons shall be in substantially the forms as shall be
established in one or more indentures supplemental hereto or approved from time
to time by or pursuant to a Board Resolution in accordance with Section 301 or,
subject to Section 303, set forth or determined in the manner provided in an
Officers' Certificate, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any
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rule or regulation made pursuant thereto or with any rule or regulation of any
stock exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities or coupons,
as evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. Subject to Section 612, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION, as Trustee
By:_____________________________________
Authorized Signatory
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If
Securities of or within a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (8) of Section 301
and the provisions of Section 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon instructions given
by the Person or Persons specified therein or in the applicable Company Order.
If a Company Order pursuant to Section 303 or 304 has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement,
delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
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The provisions of the last sentence of Section 303 shall apply
to any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of
(and premium, if any) and interest, if any, on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent of
the Company and the Trustee shall treat as the Holder of such principal amount
of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities shall rank equally and pari passu and may be
issued in one or more series. There shall be established in one or more Board
Resolutions or pursuant to authority granted by one or more Board Resolutions
and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series, any or
all of the following, as applicable (each of which (except for the matters set
forth in clauses (1), (2) and (15) below), if so provided, may be determined
from time to time by the Company with respect to unissued Securities of the
series when issued from time to time):
(1) the title of the Securities of the series (which
shall distinguish the Securities of such series from all other series
of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305);
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(3) the date or dates, or the method by which such date
or dates will be determined or extended, on which the principal of the
Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such rate
or rates shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates shall
be determined, the Interest Payment Dates on which such interest will
be payable and the Regular Record Date, if any, for the interest
payable on any Registered Security on any Interest Payment Date, or
the method by which such date shall be determined, and the basis upon
which such interest shall be calculated if other than that of a
360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in
addition to the Corporate Trust Office, where the principal of (and
premium, if any) and interest, if any, on Securities of the series
shall be payable, any Registered Securities of the series may be
surrendered for registration of transfer, Securities of the series may
be surrendered for exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or
exchange, as applicable, and where notices or demands to or upon the
Company in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which, the price or
prices at which, the Currency or Currencies in which, and other terms
and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company, if the Company is to
have the option;
(7) the obligation, if any, of the Company to redeem,
repay or purchase Securities of the series pursuant to any sinking
fund or analogous provision or at the option of a Holder thereof, and
the period or periods within which or the date or dates on which, the
price or prices at which, the Currency or Currencies in which, and
other terms and conditions upon which Securities of the series shall
be redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any
integral multiple thereof, the denomination or denominations in which
any Registered Securities of the series shall be issuable and, if
other than denominations of $5,000, the denomination or denominations
in which any Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each
Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion shall be
determined;
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(11) if other than Dollars, the Currency or Currencies in
which payment of the principal of (or premium, if any) or interest, if
any, on the Securities of the series shall be made or in which the
Securities of the series shall be denominated and the particular
provisions applicable thereto in accordance with, in addition to or in
lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more Currencies, commodities, equity indices or other indices),
and the manner in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be payable,
at the election of the Company or a Holder thereof, in one or more
Currencies other than that in which such Securities are denominated or
stated to be payable, the period or periods within which (including
the Election Date), and the terms and conditions upon which, such
election may be made, and the time and manner of determining the
exchange rate between the Currency or Currencies in which such
Securities are denominated or stated to be payable and the Currency or
Currencies in which such Securities are to be paid, in each case in
accordance with, in addition to or in lieu of any of the provisions of
Section 312;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to
the Events of Default or covenants (including any deletions from,
modifications of or additions to any of the provisions of Section
1006) of the Company with respect to Securities of the series, whether
or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities (with or without coupons)
or both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series and
vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series in
certificated form and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 305, and, if
Registered Securities of the series are to be issuable as a global
Security, the identity of the depository for such series;
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(17) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to
which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other than
in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or
1403 to the Securities of the series and any provisions in
modification of, in addition to or in lieu of any of the provisions of
Article Fourteen;
(20) if the Securities of such series are to be issuable
in definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) whether, under what circumstances and the Currency in
which, the Company will pay Additional Amounts as contemplated by
Section 1004 on the Securities of the series to any Holder who is not
a United States person (including any modification to the definition
of such term) in respect of any tax, assessment or governmental charge
and, if so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of
any such option);
(22) the designation of the initial Exchange Rate Agent,
if any;
(23) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities will be
so convertible or exchangeable; and
(24) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture or the
requirements of the Trust Indenture Act).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical
except, in the case of Registered Securities, as to denomination and except as
may otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the
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same time and, unless otherwise provided, a series may be reopened, without the
consent of the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy
of an appropriate record of such action(s) shall be certified by the Secretary
or an Assistant Secretary of the Company and delivered to the Trustee at or
prior to the delivery of the Officers' Certificate setting forth the terms of
the Securities of such series.
SECTION 302. DENOMINATIONS. The Securities of each series
shall be issuable in such denominations as shall be specified as contemplated
by Section 301. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions with respect to the Securities
of any series, the Registered Securities of such series, other than Registered
Securities issued in global form (which may be of any denomination) shall be
issuable in denominations of $1,000 and any integral multiple thereof, and the
Bearer Securities of such series, other than Bearer Securities issued in global
form (which may be of any denomination), shall be issuable in denominations of
$5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND
DATING. The Securities and any coupons appertaining thereto shall be executed
on behalf of the Company by its Chairman of the Board of Directors, its
President, its Chief Executive Officer or one of its Vice Presidents, under its
corporate seal reproduced thereon, and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities and coupons may be manual or facsimile signatures of the present or
any future such authorized officer and may be imprinted or otherwise reproduced
on the Securities.
Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities
or coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Company, to the
Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities;
provided, however, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and provided further that, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in Exhibit A-1 to this Indenture or such other certificate as may be
specified with respect to any series of Securities pursuant to Section 301,
dated no earlier than 15 days prior to the earlier of the date on which such
Bearer Security is delivered and the date on which any temporary Security first
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becomes exchangeable for such Bearer Security in accordance with the terms of
such temporary Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of this
Section and Section 304, the notation of a beneficial owner's interest therein
upon original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in connection with its
original issuance of such beneficial owner's interest in such permanent global
Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled. If all the Securities
of any series are not to be issued at one time and if the Board Resolution,
Officers' Certificate or supplemental indenture establishing such series shall
so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate, maturity date,
date of issuance and date from which interest shall accrue. In authenticating
such Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully
protected in relying upon,
(i) an Opinion of Counsel stating,
(a) that the form or forms of such Securities and
any coupons have been established in conformity with the
provisions of this Indenture;
(b) that the terms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture; and
(c) that such Securities, together with any
coupons appertaining thereto, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this Indenture,
authenticated and delivered by the Trustee in accordance with
this Indenture and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute legal, valid and binding obligations
of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization
and other similar laws of general applicability relating to or
affecting the enforcement of creditors' rights, to general
equitable principles and to such other qualifications as such
counsel shall conclude do not materially affect the rights of
Holders of such Securities and any coupons; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance and
authentication of the Securities have been complied with and, to the
best of the knowledge of the signers of such certificate, that no
Event of Default with respect to any of the Securities shall have
occurred and be continuing.
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Notwithstanding the provisions of Section 301 and of this
Section 303, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order, Opinion of Counsel or
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future
issuances, shall be delivered at or before the time of issuance of the first
Security of such series.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the generality of the foregoing, the Trustee will not be
required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears
on such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
310 together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES. (a) Pending the
preparation of definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered
form, or, if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities. In the case of
Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board
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Resolution), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any non-matured
coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations; provided,
however, that no definitive Bearer Security shall be delivered in exchange for
a temporary Registered Security; and provided further that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form. If temporary Securities of any series are
issued in global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary
or common depositary (the "Common Depositary"), for the benefit of Euroclear
and CEDEL, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof;
provided, however, that, unless otherwise specified in such temporary global
Security, upon such presentation by the Common Depositary, such temporary
global Security is accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by CEDEL as to the
portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in
such other form as may be established pursuant to Section 301; and provided
further that definitive Bearer Securities shall
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be delivered in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series
and of like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may
be established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise
specified in such temporary global Security, any such exchange shall be made
free of charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the cost of
insurance, postage, transportation and the like unless such Person takes
delivery of such definitive Securities in person at the offices of Euroclear or
CEDEL. Definitive Securities in bearer form to be delivered in exchange for
any portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series
occurring prior to the applicable Exchange Date shall be payable to Euroclear
and CEDEL on such Interest Payment Date upon delivery by Euroclear and CEDEL to
the Trustee of a certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other forms as may be established pursuant to
Section 301), for credit without further interest on or after such Interest
Payment Date to the respective accounts of Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date and who
have each delivered to Euroclear or CEDEL, as the case may be, a certificate
dated no earlier than 15 days prior to the Interest Payment Date occurring
prior to such Exchange Date in the form set forth as Exhibit A-1 to this
Indenture (or in such other forms as may be established pursuant to Section
301). Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this paragraph shall satisfy the certification
requirements of the preceding two paragraphs of this Section 304(b) and of the
third paragraph of Section 303 of this Indenture and the interests of the
Persons who are the beneficial owners of the temporary global Security with
respect to which such certification was made will be exchanged for definitive
Securities of the same series and of like tenor on the Exchange Date or the
date of certification if such date occurs after the Exchange Date, without
further act or deed by such beneficial owners. Except as otherwise provided in
this paragraph, no payments of principal (or premium, if any) or interest, if
any, owing with respect to a beneficial interest in a temporary global Security
will be made unless and until such interest in such temporary global Security
shall have been exchanged for an interest in a definitive Security. Any
interest so received by Euroclear and CEDEL and not paid
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as herein provided shall be returned to the Trustee prior to the expiration of
two years after such Interest Payment Date in order to be repaid to the
Company.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially
appointed "Security Registrar" for the purpose of registering Registered
Securities and transfers of Registered Securities on such Security Register as
herein provided. In the event that the Trustee shall cease to be Security
Registrar, it shall have the right to examine the Security Register at all
reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series, of
any authorized denomination or denominations and of a like aggregate principal
amount, containing identical terms and provisions, upon surrender of the
Registered Securities to be exchanged at any such office or agency. Whenever
any Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive. Unless
otherwise specified with respect to any series of Securities as contemplated by
Section 301, Bearer Securities may not be issued in exchange for Registered
Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, any such
permitted exchange may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company in an amount equal to the face
amount of such missing coupon or coupons, or the surrender of such missing
coupon or coupons may be waived
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by the Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date for payment, as the case may be,
and interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged,
the Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security, executed by the Company. On or
after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Common Depositary or such
other depositary as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be specified by the beneficial
owner thereof; provided, however, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities to be
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redeemed and ending on the relevant Redemption Date if the Security for which
exchange is requested may be among those selected for redemption; and provided
further that no Bearer Security delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered to any
location in the United States. If a Registered Security is issued in exchange
for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of Defaulted Interest, interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing
the same debt and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 304, 906, 1107 or 1305 not
involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of business 15
days before selection of the Securities to be redeemed under Section 1103 and
ending at the close of business on (A) if such Securities are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the
day of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or
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(iv) to issue, register the transfer of or exchange any Security which has been
surrendered for repayment at the option of the Holder, except the portion, if
any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES. If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such security or indemnity as may be required by the Company
or the Trustee to save each of them or any agent of either of them harmless,
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security or in exchange for the Security to
which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or to
the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or stolen
coupon appertains, pay such Security or coupon; provided, however, that payment
of principal of (and premium, if any) and interest, if any, on Bearer
Securities shall, except as otherwise provided in Section 1002, be payable only
at an office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security, or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, shall constitute an original additional contractual
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obligation of the Company, whether or not the destroyed, lost or stolen
Security and its coupons, if any, or the destroyed, lost or stolen coupon shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Securities
of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS
PRESERVED; OPTIONAL INTEREST RESET. (a) Except as otherwise specified with
respect to a series of Securities in accordance with the provisions of Section
301, interest, if any, on any Registered Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; provided, however, that each installment of
interest, if any, on any Registered Security may at the Company's option be
paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee inside the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account maintained by
the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and CEDEL with
respect to that portion of such permanent global Security held for its account
by the Common Depositary, for the purpose of permitting each of Euroclear and
CEDEL to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on
the next succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on
any Registered Security of any series that is
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payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder thereof on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment (which shall not be less than 25 days after such notice is
received by the Trustee, unless the Trustee shall consent to an
earlier date), and at the same time the Company shall deposit with the
Trustee an amount of money in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) equal
to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security
Register not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2). In case a Bearer Security of any series is surrendered at
the office or agency in a Place of Payment for such series in exchange
for a Registered Security of such series after the close of business
at such office or agency on any Special Record Date and before the
opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
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(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at
least 45 but not more than 60 days prior to an Optional Reset Date for such
Security. Not later than 40 days prior to each Optional Reset Date, the
Trustee shall transmit, in the manner provided for in Section 106, to the
Holder of any such Security a notice (the "Reset Notice") indicating whether
the Company has elected to reset the interest rate (or the spread or spread
multiplier used to calculate such interest rate, if applicable), and if so (i)
such new interest rate (or such new spread or spread multiplier, if applicable)
and (ii) the provisions, if any, for redemption during the period from such
Optional Reset Date to the next Optional Reset Date or if there is no such next
Optional Reset Date, to the Stated Maturity Date of such Security (each such
period a "Subsequent Interest Period"), including the date or dates on which or
the period or periods during which and the price or prices at which such
redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish an interest rate
(or a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding
paragraph, will bear such higher interest rate (or such higher spread or spread
multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders except that the period for
delivery or notification
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to the Trustee shall be at least 25 but not more than 35 days prior to such
Optional Reset Date and except that, if the Holder has tendered any Security
for repayment pursuant to the Reset Notice, the Holder may, by written notice
to the Trustee, revoke such tender or repayment until the close of business on
the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by
such other Security.
SECTION 308. OPTIONAL EXTENSION OF MATURITY. The
provisions of this Section 308 may be made applicable to any series of
Securities pursuant to Section 301 (with such modifications, additions or
substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 45
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate, if any, applicable to the
Extension Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee's transmittal of the Extension Notice, the
Stated Maturity of such Security shall be extended automatically and, except as
modified by the Extension Notice and as described in the next paragraph, such
Security will have the same terms as prior to the transmittal of such Extension
Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be
irrevocable. All Securities with respect to which the Stated Maturity is
extended will bear such higher interest rate.
If the Company extends the Stated Maturity of any Security,
the Holder will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the principal
amount thereof, plus interest accrued to such date. In order to obtain
repayment on the Original Stated Maturity once the Company has extended the
Stated Maturity thereof, the Holder must follow the procedures set forth in
Article Thirteen for repayment at the option of Holders, except that the period
for delivery or notification to the Trustee shall be at least 25 but not more
than 35 days prior to the Original Stated Maturity and except that, if the
Holder has tendered any Security for repayment pursuant to an Extension
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Notice, the Holder may by written notice to the Trustee revoke such tender for
repayment until the close of business on the tenth day before the Original
Stated Maturity.
SECTION 309. PERSONS DEEMED OWNERS. Prior to due
presentment of a Registered Security for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Registered Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest, if any, on such Registered Security
and for all other purposes whatsoever, whether or not such Registered Security
be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and
owners of beneficial interests in such global Security, the operation of
customary practices governing the exercise of the rights of such depositary (or
its nominee) as Holder of such global Security.
SECTION 310. CANCELLATION. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons and Securities
and coupons surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities
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unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. Cancelled Securities and coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall periodically deliver a
certificate of such destruction to the Company, unless by a Company Order the
Company directs their return to it.
SECTION 311. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest, if any, on the Securities of each series shall be computed
on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF
SECURITIES. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the Holders
of which have not made the election provided for in paragraph (b) below, and
with respect to Bearer Securities of any series, except as provided in
paragraph (d) below, payment of the principal of (and premium, if any) and
interest, if any, on any Registered or Bearer Security of such series will be
made in the Currency in which such Registered Security or Bearer Security, as
the case may be, is payable. The provisions of this Section 312 may be
modified or superseded with respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with
respect to Registered Securities of any series that Holders shall have the
option, subject to paragraphs (d) and (e) below, to receive payments of
principal of (or premium, if any) or interest, if any, on such Registered
Securities in any of the Currencies which may be designated for such election
by delivering to the Trustee for such series of Registered Securities a written
election with signature guarantees and in the applicable form established
pursuant to Section 301, not later than the close of business on the Election
Date immediately preceding the applicable payment date. If a Holder so elects
to receive such payments in any such Currency, such election will remain in
effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the
close of business on the Election Date immediately preceding the next payment
date to be effective for the payment to be made on such payment date and no
such change of election may be made with respect to payments to be made on any
Registered Security of such series with respect to which an Event of Default
has occurred or with respect to which the Company has deposited funds pursuant
to Article Four or Fourteen or with respect to which a notice of redemption has
been given by the Company or a notice of option to elect repayment has been
sent by such Holder or such transferee). Any Holder of any such Registered
Security who shall not have delivered any such election to the Trustee of such
series of Registered Securities not later than the close of business on the
applicable Election Date will be paid the amount due on the applicable payment
date in the relevant Currency as provided in Section 312(a). The Trustee for
each such series of Registered Securities shall notify the
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Exchange Rate Agent as soon as practicable after the Election Date of the
aggregate principal amount of Registered Securities for which Holders have made
such written election.
(c) Unless otherwise specified pursuant to Section 301,
if the election referred to in paragraph (b) above has been provided for
pursuant to Section 301, then, unless otherwise specified pursuant to Section
301, not later than the fourth Business Day after the Election Date for each
payment date for Registered Securities of any series, the Exchange Rate Agent
will deliver to the Company a written notice specifying the Currency in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any) and interest, if any, on the
Registered Securities to be paid on such payment date, specifying the amounts
in such Currency so payable in respect of the Registered Securities as to which
the Holders of Registered Securities denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b) above. If
the election referred to in paragraph (b) above has been provided for pursuant
to Section 301 and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 301, on the second Business Day
preceding such payment date the Company will deliver to the Trustee for such
series of Registered Securities an Exchange Rate Officer's Certificate in
respect of the Dollar or Foreign Currency or Currencies payments to be made on
such payment date. Unless otherwise specified pursuant to Section 301, the
Dollar or Foreign Currency or Currencies amount receivable by Holders of
Registered Securities who have elected payment in a Currency as provided in
paragraph (b) above shall be determined by the Company on the basis of the
applicable Market Exchange Rate in effect on the second Business Day (the
"Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a
Foreign Currency in which any of the Securities are denominated or payable
other than pursuant to an election provided for pursuant to paragraph (b)
above, then with respect to each date for the payment of principal of (and
premium, if any) and interest, if any on the applicable Securities denominated
or payable in such Foreign Currency occurring after the last date on which such
Foreign Currency was used (the "Conversion Date"), the Dollar shall be the
currency of payment for use on each such payment date. Unless otherwise
specified pursuant to Section 301, the Dollar amount to be paid by the Company
to the Trustee of each such series of Securities and by such Trustee or any
Paying Agent to the Holders of such Securities with respect to such payment
date shall be, in the case of a Foreign Currency other than a currency unit,
the Dollar Equivalent of the Foreign Currency or, in the case of a currency
unit, the Dollar Equivalent of the Currency Unit, in each case as determined by
the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301,
if the Holder of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b) above, and
a Conversion Event occurs with respect to such elected Currency, such Holder
shall receive payment in the Currency in which payment would have been made in
the absence of such election; and if a Conversion Event occurs with respect to
the Currency in which payment would have been made in the absence of such
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election, such Holder shall receive payment in Dollars as provided in paragraph
(d) of this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall
be determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each
payment.
(h) For purposes of this Section 312, the following terms
shall have the following meanings:
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, the ECU.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions
thereof which were represented in the relevant currency unit,
including, but not limited to, the ECU, on the Conversion
Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the
respective Specified Amounts of such consolidated Component
Currencies expressed in such single currency, and such amount
shall thereafter be a Specified Amount and such single
currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided
into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by amounts of such two or
more currencies, having an aggregate Dollar Equivalent value
at the Market Exchange Rate on the date of such replacement
equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate
immediately before such division, and such amounts shall
thereafter be Specified Amounts and such currencies shall
thereafter be Component Currencies. If, after the Conversion
Date of the relevant currency unit, including, but not limited
to, the ECU, a Conversion Event (other than any event referred
to above in this definition of "Specified Amount") occurs with
respect to any Component Currency of such currency unit and is
continuing on the applicable Valuation Date, the Specified
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Amount of such Component Currency shall, for purposes of
calculating the Dollar Equivalent of the Currency Unit, be
converted into Dollars at the Market Exchange Rate in effect
on the Conversion Date of such Component Currency.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days
prior to Maturity, as the case may be, or such other prior
date for any series of Registered Securities as specified
pursuant to clause 13 of Section 301 by which the written
election referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the appropriate series of Securities
and all Holders of such Securities denominated or payable in the relevant
Currency. The Exchange Rate Agent shall promptly give written notice to the
Company and the Trustee for the appropriate series of Securities of any such
decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency
as set forth in the definition of Specified Amount above has occurred, the
Company will similarly give written notice to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received
by it from the Company and the Exchange Rate Agent and shall not otherwise have
any duty or obligation to determine the accuracy or validity of such
information independent of the Company or the Exchange Rate Agent.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR
EXCHANGE RATE AGENT. (a) Unless otherwise specified pursuant to Section 301,
if and so long as the Securities of any series (i) are denominated in a Foreign
Currency or (ii) may be payable in a Foreign Currency, or so long as it is
required under any other provision of this Indenture, then the
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Company will maintain with respect to each such series of Securities, or as so
required, at least one Exchange Rate Agent. The Company will cause the
Exchange Rate Agent to make the necessary foreign exchange determinations at
the time and in the manner specified pursuant to Section 301 for the purpose of
determining the applicable rate of exchange and, if applicable, for the purpose
of converting the issued Foreign Currency into the applicable payment Currency
for the payment of principal (and premium, if any) and interest, if any,
pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and
the Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed
or become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities
of one or more or all of such series and that, unless otherwise specified
pursuant to Section 301, at any time there shall only be one Exchange Rate
Agent with respect to the Securities of any particular series that are
originally issued by the Company on the same date and that are initially
denominated and/or payable in the same Currency).
SECTION 314. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall indicate the "CUSIP" numbers of the Securities in notices of
redemption as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect with
respect to any series of Securities specified in such Company Request (except
as to any surviving rights of registration of transfer or exchange of
Securities of such series expressly provided for herein or pursuant hereto and
any right to receive Additional Amounts, as provided in Section 1004), and the
Trustee, upon receipt of a Company Order, and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture as to such series when
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(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305,
(ii) Securities and coupons of such series which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to
Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the
case of (i) or (ii) below, any coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) if redeemable at the option of the
Company, are to be called for redemption within one
year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in
the Currency in which the Securities of such series are
payable, sufficient to pay and discharge the entire
indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the
date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating
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to the satisfaction and discharge of this Indenture as to such series
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 607, the obligations of the Company to any Authenticating Agent under
Section 612 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with the
Trustee pursuant to Section 401 shall be held in trust and applied by it, in
accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
or received by the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
SECTION 403. REPAYMENT OF MONEYS HELD BY TRUSTEE. To the
extent permitted by law, any moneys deposited with the Trustee or any Paying
Agent for the payment of the principal of (or premium, if any, on) or interest
on any Security of any series and not applied but remaining unclaimed by the
Holders for two years after the date upon which the principal of (or premium,
if any, on) or interest on such Security shall have become due and payable,
shall be repaid to the Company by the Trustee or such Paying Agent on demand;
and the Holder of any of the Securities entitled to receive such payment shall
thereafter look only to the Company for the payment thereof and all liability
of the Trustee or such Paying Agent with respect to such moneys shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be mailed to each such Holder or published once a week for two successive weeks
(in each case on any day of the week) in an Authorized Newspaper, or both, a
notice that said moneys have not been so applied and that after a date named
therein any unclaimed balance of said moneys then remaining will be returned to
the Company. It shall not be necessary for more than one such publication to
be made in the same newspaper.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default,"
wherever used herein with respect to any particular series of Securities, means
any one of the following events (whatever the reason for such Event of Default
and whether or not it shall be voluntary or
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involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any
Security of that series or of any coupon appertaining thereto, when
such interest or coupon becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any
covenant or agreement of the Company in this Indenture with respect to
any Security of that series (other than a covenant or agreement a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of
its creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case,
(B) appoints a Custodian of the Company or for
all or substantially all of its property, or
(C) orders the liquidation of the Company,
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and the order or decree remains unstayed and in effect for 90 days; or
(7) any other Event of Default provided with respect to
Securities of that series.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy
Law.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If an Event of Default with respect to Securities of any series at
the time Outstanding occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)):
(A) all overdue installments of interest, if any,
on all Outstanding Securities of that series and any related
coupons,
(B) the principal of (and premium, if any, on)
all Outstanding Securities of that series which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates borne by or provided for
in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue installments of interest at
the rate or rates borne by or provided for in such Securities,
and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
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(2) all Events of Default with respect to Securities of
that series, other than the nonpayment of the principal of (or
premium, if any) or interest on Securities of that series which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if:
(1) default is made in the payment of any installment of
interest on any Security of any series and any related coupon when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, with interest upon any overdue principal
(and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon Securities of
such series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other
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obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities of any series shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of any
overdue principal, premium or interest) shall be entitled and empowered, by
intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (or in the case of Original Issue Discount Securities or
Indexed Securities, such portion of the principal as may be provided
for in the terms thereof) (and premium, if any) and interest, if any,
owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
of a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES OR COUPONS. All rights of action and claims under this Indenture
or any of the Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities and coupons in respect of which such judgment has been
recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates
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fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, if any, upon presentation of the
Securities or coupons, or both, as the case may be, and the notation thereon of
the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities and coupons for principal (and premium, if any)
and interest, if any, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the aggregate amounts due and payable on
such Securities and coupons for principal (and premium, if any) and
interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, its successors and assigns, or any other Person or Persons
entitled thereto.
SECTION 507. LIMITATION ON SUITS. No Holder of any
Security of any series or any related coupon shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this
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Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and premium,
if any) and (subject to Sections 305 and 307) interest, if any, on such
Security or payment of such coupon on the respective due dates expressed in
such Security or coupon (or, in the case of redemption, on the Redemption Date)
and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the
Trustee or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder of any Security or coupon to exercise
any right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders of
Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The
Holders of a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of such
series, provided that
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(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unjustly prejudicial to the
Holders of Securities of such series not consenting.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series and
any related coupons waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if
any) or interest, if any, on any Security of such series or any
related coupons, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS. The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 515. UNDERTAKING FOR COSTS. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken, suffered or omitted by it
as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder,
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or group of Holders, holding in the aggregate more than 10% in principal amount
of the Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Security on or after the respective Stated Maturities expressed in such
Security (or, in the case of redemption on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any Default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided in
TIA Section 313(c), notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of (or premium,
if any) or interest, if any, on any Security of such series, or in the payment
of any sinking or purchase fund installment with respect to the Securities of
such series, the Trustee shall be protected in withholding such notice if and
so long as the board of directors, the executive committee or a trust committee
of directors and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Securities and coupons of such series; and provided further that
in the case of any Default or breach of the character specified in Section
501(4) with respect to the Securities and coupons of such series, no such
notice to Holders shall be given until at least 60 days after the occurrence
thereof. The Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) an Event of Default described in Section 501 (1),
(2) or (3) so long as the Trustee is Paying Agent for the Securities of such
Series or (ii) any Default or Event of Default of which the Trustee shall have
received written notification or a Responsible Officer charged with the
administration of the Indenture shall have obtained actual knowledge.
SECTION 602. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to it and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which
by any provision
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hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether
or not they conform to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing as to a series of Securities, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of
the Outstanding Securities of any series, relating to the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series.
(d) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
(f) No provision of this Indenture shall require the
Trustee to determine the maximum interest rate permissible under applicable
law.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of Section 602:
(1) The Trustee may, in the absence of bad faith, rely
and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument,
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opinion, report, notice, request, direction, consent, order, bond,
debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
(2) Any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
(3) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon a Board Resolution,
an Opinion of Counsel or an Officers' Certificate.
(4) The Trustee may consult with counsel and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon.
(5) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any series
or any related coupons pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(6) The Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney.
(7) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(8) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture.
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SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and 311,
may otherwise deal with the Company with the same rights it would have if it
were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or
such other agent.
SECTION 606. MONEY HELD IN TRUST. Money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT. The Company
agrees:
(1) To pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as has been
agreed upon in writing (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust).
(2) Except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith.
(3) To indemnify each of the Trustee and any predecessor
Trustee and the officers, directors, employees and agents of the
Trustee or any such predecessor Trustee (the Trustee, each predecessor
Trustee and such officers, directors, employees and agents being
hereinafter referred to in this Section collectively as the
"Indemnified Parties" and individually as an "Indemnified Party") for,
and to hold each Indemnified Party harmless against, any loss,
liability or expense incurred without negligence or bad faith on the
part of such Indemnified Party, arising out of or in connection with
the acceptance or
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administration of this Indenture or the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a claim or lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of (or premium,
if any) or interest, if any, on particular Securities or any coupons.
The obligations of the Company under this Section to
compensate and indemnify the Indemnified Parties and to pay or reimburse each
Indemnified Party for expenses, disbursements and advances shall constitute an
additional obligation hereunder and shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after the
occurrence of an Event of Default specified in Section 501(5) or (6) of this
Indenture, the expenses and the compensation for the services will be intended
to constitute expenses of administration under Title 11 of the United States
Bankruptcy Code or any other applicable federal or state law for the relief of
debtors.
SECTION 608. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be eligible to act
as Trustee under TIA Section 310(a)(1) has either (i) a combined capital and
surplus of at least $50,000,000 or (ii) is a wholly-owned subsidiary of a bank,
a trust company or a bank holding company having a combined capital and surplus
of at least $50,000,000. If such corporation publishes reports of condition at
least annually, pursuant to law or the requirements of Federal, State,
Territorial or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 609. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. (a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 610.
(b) The Trustee may resign at any time with respect to
the Securities of one or more series by giving written notice thereof to the
Company.
(c) The Trustee may be removed at any time with respect
to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Trustee and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of TIA Section 310(b) after written request
therefor by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under
Section 608 and shall fail to resign after written request
therefor by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months,
or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of
the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who
has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the instrument of acceptance required by Section
610 by a successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of a notice of resignation or the delivery of an Act
of removal, the Trustee resigning or being removed may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 610, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of
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Securities and accepted appointment in the manner hereinafter provided, any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(g) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 610. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a)
In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee
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relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 611. MERGER, CONVERSION, CONSOLIDATION OR
SUCCESSION TO BUSINESS. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities or
coupons shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
or coupons so authenticated with the same effect as if such successor Trustee
had itself authenticated such Securities or coupons. In case any Securities or
coupons shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 612. APPOINTMENT OF AUTHENTICATING AGENT. At any
time when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, a copy of which instrument shall be promptly furnished to the
Company. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as may
otherwise be provided pursuant to Section 301, shall at all times be a bank or
trust company or corporation organized and doing business and in good standing
under the laws
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of the United States of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $1,500,000 and subject to supervision or
examination by Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice
of termination to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth
in Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
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This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION, as Trustee
By:_____________________________________
as Authenticating Agent
By:_____________________________________
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND
ADDRESSES OF HOLDERS. The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not later than 15 days after each
Regular Record Date for each series of Securities at the time Outstanding, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date (or a date to be
determined pursuant to Section 301 for Original Issue Discount Securities); and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS
TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act.
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(c) Every Holder of Securities or coupons, by receiving
and holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Authenticating Agent nor any Paying Agent nor
any Security Registrar shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 703. REPORTS BY TRUSTEE. Within 60 days after May
15 of each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to
all Holders of Securities as provided in TIA Section 313(c) a brief report
dated as of such May 15 if required by TIA Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee of the listing of the
Securities on any stock exchange.
SECTION 704. REPORTS BY COMPANY. The Company will:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of
the annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which the Company may be required to file with the Commission pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it will file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on
a national securities exchange as may be prescribed from time to time
in such rules and regulations;
(2) file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents and reports
with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within
30 days after the filing thereof with the Trustee, in the manner and
to the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (1) and (2) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
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SECTION 705. CALCULATION OF ORIGINAL ISSUE DISCOUNT. Upon
request of the Trustee, the Company will deliver to the Trustee, within forty
days of the date of the issuance of Original Issue Discount Securities, written
notice setting forth (i) the amount of the original issue discount on such
Securities, expressed as Dollars per $1,000 of principal amount at Stated
Maturity, (ii) the yield to maturity for such Securities, and (iii) a table of
the amount of the original issue discount on such Securities, expressed as
Dollars per $1,000 of principal amount at Stated Maturity.
Upon request of the Trustee, the Company shall file with the
Trustee on December 15 of each calendar year a written notice setting forth
such information as may be reasonably requested by the Trustee in order that
the Trustee may prepare the information which it is required to report for such
year on Internal Revenue Services Forms 1096 and 1099 pursuant to Section 6049
of the Internal Revenue Code of 1986, as amended. Such information shall
include the amount of original issue discount includible in income for each
$1,000 of principal amount at Stated Maturity of Outstanding Securities during
such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS. The Company shall not consolidate with or merge with or into
any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(1) either the Company shall be the continuing
corporation, or the corporation (if other than the Company) formed by
such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer the properties and assets of
the Company substantially as an entirety shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest, if any, on all
the Securities and the performance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction,
no Default or Event of Default shall have happened and be continuing;
and
(3) the Company and the successor Person have delivered
to the Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger, conveyance or transfer and
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially
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as an entirety in accordance with Section 801, the successor corporation formed
by such consolidation or into which the Company is merged or the successor
Person to which such conveyance or transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein; and in the event of any such conveyance or transfer, the
Company shall be discharged from all obligations and covenants under this
Indenture and the Securities and coupons and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS. Without the consent of any Holders of Securities or coupons, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of Default for the
benefit of the Holders of all or any series of Securities (and if such
Events of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default
such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities,
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to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form;
provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301,
including the provisions and procedures relating to Securities
convertible into or exchangeable for any securities of any Person
(including the Company); or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action
shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture
to such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Sections 401, 1402 and 1403; provided that any such action shall not
adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in
any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS. With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby:
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(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest
on, any Security; or reduce the principal amount thereof or the rate
of interest thereon, or any premium payable upon the redemption
thereof, or change any obligation of the Company to pay Additional
Amounts pursuant to Section 1004 (except as contemplated by Section
801(1) and permitted by Section 901(1)), or reduce the portion of the
principal of an Original Issue Discount Security or Indexed Security
that would be due and payable upon a declaration of acceleration of
the Maturity thereof pursuant to Section 502 or the amount thereof
provable in bankruptcy pursuant to Section 504, or adversely affect
any right of repayment at the option of the Holder of any Security, or
change any Place of Payment where, or the Currency in which, any
Security or any premium or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption Date
or the Repayment Date, as the case may be), or adversely affect any
right to convert or exchange any Security as may be provided pursuant
to Section 301 herein, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section, Section
513 or Section 1006, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to consent to such supplemental indenture, whether or not such Holders
remain Holders after such record date; provided, that unless such consent shall
have become effective by virtue of the requisite percentage having been
obtained prior to the date which is
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90 days after such record date, any such consent previously given shall
automatically and without further action by any Holder be cancelled and of no
further effect.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and shall
be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder and
of any coupon appertaining thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and
shall, if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of the Holders of each series
of Securities that it will duly and punctually pay or cause to be paid the
principal of (and premium, if any) and interest, if any, on the Securities of
that series in accordance with the terms of such series of Securities, any
coupons appertaining thereto and this Indenture. Any interest due on Bearer
Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 1004 in respect of principal of (or premium, if
any, on) such a Security, shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the Company,
all payments of principal may be
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paid by check to the registered Holder of the Registered Security or other
person entitled thereto against surrender of such Security. Unless otherwise
specified as contemplated by Section 301 with respect to any series of
Securities, any interest due on Bearer Securities on or before Maturity shall
be payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If
Securities of a series are issuable only as Registered Securities, the Company
shall maintain in each Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable, and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will maintain (A) in the Borough of
Manhattan, The City of New York, an office or agency where any Registered
Securities of that series may be presented or surrendered for payment, where
any Registered Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for exchange,
where Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment
for that series which is located outside the United States, an office or agency
where Securities of that series and related coupons may be presented and
surrendered for payment; provided, however, that if the Securities of that
series are listed on the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered
for exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable, and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of each such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment at the offices specified in the
Security, in London, England, and the Company hereby appoints the same as its
agent to receive such respective presentations, surrenders, notices and
demands, and the Company hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
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Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided,
however, that, if the Securities of a series are payable in Dollars, payment of
principal of (and premium, if any) and interest, if any, on any Bearer Security
shall be made at the office of the Company's Paying Agent in the Borough of
Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium or interest, as the case may be, at all
offices or agencies outside the United States maintained for such purpose by
the Company in accordance with this Indenture, is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in accordance with the requirements set forth
above for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. Unless
otherwise specified with respect to any Securities pursuant to Section 301 with
respect to a series of Securities, the Company hereby designates as Places of
Payment for each series of Securities the Corporate Trust Office of the
Trustee, and initially appoints the Trustee at its Corporate Trust Office as
Paying Agent in such city and as its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a currency other than Dollars or (ii) may be payable in a
currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN
TRUST. If the Company shall at any time act as its own Paying Agent with
respect to any series of any Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the principal
of (and premium, if any) and interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or before each
due date of the principal of (or
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premium, if any) or interest, if any, on any Securities of that series, deposit
with a Paying Agent a sum (in the Currency described in the preceding
paragraph) sufficient to pay the principal (or premium, if any) or interest, if
any, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as otherwise provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series and remaining unclaimed for two
years after such principal, premium or interest has become due and payable
shall be paid to the Company upon Company Request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company
for payment of such principal, premium or interest on any Security, without
interest thereon, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. ADDITIONAL AMOUNTS. If the Securities of a
series provide for the payment of Additional Amounts, the Company will pay to
the Holder of a Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of (or premium, if any) or interest, if any, on any Security of
any series or payment of any related coupon or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided by the terms of
such series established pursuant to Section 301 to the extent that, in such
context, Additional Amounts are, were or would be payable in respect thereof
pursuant to such terms and express mention of the payment of Additional Amounts
(if applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
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Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal, premium or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate, the Company
will furnish the Trustee and the Company's principal Paying Agent or Paying
Agents, if other than the Trustee, with an Officers' Certificate instructing
the Trustee and such Paying Agent or Paying Agents whether such payment of
principal, premium or interest on the Securities of that series shall be made
to Holders of Securities of that series or any related coupons who are not
United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of the
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities of that series or
related coupons and the Company will pay to the Trustee or such Paying Agent
the Additional Amounts required by the terms of such Securities. In the event
that the Trustee or any Paying Agent, as the case may be, shall not so receive
the above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled (i) to assume that no such withholding or deduction is required with
respect to any payment of principal or interest with respect to any Securities
of a series or related coupons until it shall have received a certificate
advising otherwise and (ii) to make all payments of principal and interest with
respect to the Securities of a series or related coupons without withholding or
deductions until otherwise advised. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section or in reliance on the Company's not furnishing such an Officers'
Certificate.
SECTION 1005. STATEMENT AS TO COMPLIANCE. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture.
For purposes of this Section 1005, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 1006. WAIVER OF CERTAIN COVENANTS. The Company may
omit in any particular instance to comply with any term, provision or
condition, as specified pursuant to Section 301(15) for Securities of any
series, in any covenants of the Company added to Article Ten pursuant to
Section 301(14) or Section 301(15) in connection with Securities of a series,
if before or after the time for such compliance the Holders of at least a
majority in principal amount of all Outstanding Securities of each series of
Securities affected voting as a single class, by Act of such Holders, waive
such compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such
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waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED. If less than all the Securities of any series issued on the same day
with the same terms are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 45 days prior to the Redemption Date
by the Trustee, from the Outstanding Securities of such series issued on such
date with the same terms not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been or
is to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption
shall be given in the manner provided in Section 106, not less than 30 days nor
more than 60 days prior to the
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Redemption Date, unless a shorter period is specified by the terms of such
series established pursuant to Section 301, to each Holder of Securities to be
redeemed, but failure to give such notice in the manner herein provided to the
Holder of any Security designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to
the Redemption Date payable as provided in Section 1106,
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only,
the notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the Holder
will receive, without a charge, a new Security or Securities of
authorized denominations for the principal amount thereof remaining
unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided
in Section 1106 will become due and payable upon each such Security,
or the portion thereof, to be redeemed and, if applicable, that
interest thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any,
(7) that the redemption is for a sinking fund, if such is
the case,
(8) that, unless otherwise specified in such notice,
Bearer Securities of any series, if any, surrendered for redemption
must be accompanied by all coupons maturing subsequent to the date
fixed for redemption or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price, unless security or
indemnity satisfactory to the Company, the Trustee for such series and
any Paying Agent is furnished,
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(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to
any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent segregate
and hold in trust as provided in Section 1003) an amount of money in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall if the same were interest-bearing cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to
be redeemed, except to the extent provided below, shall be void. Upon
surrender of any such Security for redemption in accordance with said notice,
together with all coupons, if any, appertaining thereto maturing after the
Redemption Date, such Security shall be paid by the Company at the Redemption
Price, together with accrued interest, if any, to the Redemption Date;
provided, however, that installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of coupons for such interest;
and provided further that installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in
such Security or, in the case of Original Issue Discount Security, at the Yield
to Maturity of such Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge a new Security or
Securities of the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. However,
if less than all the Securities of any series with differing issue dates,
interest rates and stated maturities are to be redeemed, the Company in its
sole discretion shall select the particular Securities to be redeemed and shall
notify the Trustee in writing thereof at least 45 days prior to the relevant
redemption date.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of
this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount
provided for by the terms of such Securities of any series is herein referred
to as an "optional sinking fund payment." If provided for by the terms
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of any Securities of any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. The Company may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of a series, (1)
deliver Outstanding Securities of such series (other than any previously called
for redemption) together in the case of any Bearer Securities of such series
with all unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, as provided for by the terms of such Securities; provided that such
Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for Securities of
any series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities of that
series pursuant to Section 1202, and the optional amount, if any, to be added
in cash to the next ensuing mandatory sinking fund payment, and will also
deliver to the Trustee any Securities to be so delivered and credited. If such
Officers' Certificate shall specify an optional amount to be added in cash to
the next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days before
each such sinking fund payment date the Trustee shall select the Securities to
be redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities shall be
made upon the terms and in the manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of
Securities of any series before their Stated Maturity at the option of Holders
thereof shall be made in accordance with the terms of such Securities and
(except as otherwise specified by the terms of such series established pursuant
to Section 301) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES. Securities of any
series subject to repayment in whole or in part at the option of the Holders
thereof will, unless otherwise provided in the terms of such Securities, be
repaid at the Repayment Price thereof, together with interest, if any, thereon
accrued to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it will
deposit with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section
1003) an amount of money in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) sufficient to pay the Repayment Price of, and
(except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. To be
repaid at the option of the Holder, any Security so providing for such
repayment, with the "Option to Elect Repayment" form on the reverse of such
Security duly completed by the Holder (or by the Holder's attorney duly
authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places of which the Company shall from time to time notify the Holders of such
Securities) not earlier than 45 days nor later than 30 days prior to the
Repayment Date. If less than the entire Repayment Price of such Security is to
be repaid in accordance with the terms of such Security, the portion of the
Repayment Price of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of such Security surrendered that is not to be repaid, must be
specified. Any Security providing for repayment at the option of the Holder
thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be repaid is
a part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT
BECOME DUE AND PAYABLE. If Securities of any series providing for repayment at
the option of the Holders thereof shall have been surrendered as provided in
this Article and as provided by or pursuant to the
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terms of such Securities, such Securities or the portions thereof, as the case
may be, to be repaid shall become due and payable and shall be paid by the
Company on the Repayment Date therein specified, and on and after such
Repayment Date (unless the Company shall default in the payment of such
Securities on such Repayment Date) such Securities shall, if the same were
interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with all coupons, if
any, appertaining thereto maturing after the Repayment Date, the Repayment
Price of such Security so to be repaid shall be paid by the Company, together
with accrued interest, if any, to the Repayment Date; provided, however, that
coupons whose Stated Maturity is on or prior to the Repayment Date shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified pursuant
to Section 301, only upon presentation and surrender of such coupons; and
provided further that, in the case of Registered Securities, installments of
interest, if any, whose Stated Maturity is on or prior to the Repayment Date
shall be payable (but without interest thereon, unless the Company shall
default in the payment thereof) to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by
the Company and the Trustee if there be furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security surrendered for repayment shall not be so
repaid upon surrender thereof, the Repayment Price shall, until paid, bear
interest from the Repayment Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield
to Maturity of such Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of
any Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
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ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 301 provision
is made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this
Article (with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities), shall be applicable to such
Securities and any coupons appertaining thereto, and the Company may at its
option by Board Resolution, at any time, with respect to such Securities and
any coupons appertaining thereto, elect to have Section 1402 (if applicable) or
Section 1403 (if applicable) be applied to such Outstanding Securities and any
coupons appertaining thereto upon compliance with the conditions set forth
below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and
any coupons appertaining thereto on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) of this Section, and to have
satisfied all its other obligations under such Securities and any coupons
appertaining thereto and this Indenture insofar as such Securities and any
coupons appertaining thereto are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described
in Section 1404 and as more fully set forth in such Section, payments in
respect of the principal of (and premium, if any) and interest, if any, on such
Securities and any coupons appertaining thereto when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 304,
305, 306, 1002 and 1003 and with respect to the payment of Additional Amounts,
if any, on such Securities as contemplated by Section 1004, (C) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section notwithstanding the prior exercise of
its option under Section 1403 with respect to such Securities and any coupons
appertaining thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be released, if specified
pursuant to Section 301, from its obligations under any additional covenant
with respect to the Securities of such series provided for pursuant to Section
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301, with respect to such Outstanding Securities and any coupons appertaining
thereto on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
coupons appertaining thereto shall thereafter be deemed to be not "Outstanding"
for the purposes of any direction, waiver, consent or declaration or Act of
Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any coupons appertaining thereto, the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 501(4) or 501(7) or otherwise, as
the case may be, but, except as specified above, the remainder of this
Indenture and such Securities and any coupons appertaining thereto shall be
unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE. The following shall be the conditions to application of Section
1402 or Section 1403 to any Outstanding Securities of or within a series and
any coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 608 who shall agree to comply with the
provisions of this Article Fourteen applicable to it) as trust funds
in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount (in such Currency in which such Securities and
any coupons appertaining thereto are then specified as payable at
Stated Maturity), or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis
of the Currency in which such Securities and coupons appertaining
thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Securities and any
coupons appertaining thereto, money in an amount, or (3) a combination
thereof in an amount, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, (i) the principal of (and
premium, if any) and interest, if any, on such Outstanding Securities
and any coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to
such Outstanding Securities and any coupons appertaining thereto on
the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities and any coupons
appertaining thereto.
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(b) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under,
this Indenture or any other material agreement or instrument to which
the Company is a party or by which it is bound.
(c) No Default or Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred
and be continuing on the date of such deposit or, insofar as Sections
501(5) and 501(6) are concerned, at any time during the period ending
on the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration
of such period).
(d) In the case of an election under Section 1402, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the
date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss
for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under Section 1402 or the
covenant defeasance under Section 1403 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that either (i)
as a result of a deposit pursuant to subsection (a) above and the
related exercise of the Company's option under Section 1402 or Section
1403 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the trustee
for such trust funds or (ii) all necessary registrations under said
Act have been effected.
(g) Notwithstanding any other provisions of this Section,
such defeasance or covenant defeasance shall be effected in compliance
with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith pursuant
to Section 301.
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<PAGE> 86
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO
BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of
the last paragraph of Section 1003, all money and Government Obligations (or
other property as may be provided pursuant to Section 301) (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the "Trustee") pursuant to
Section 1404 in respect of any Outstanding Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, if any, but such money need not
be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Section 1404(a) has
been made, (a) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Section 312(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 1404(a) has been made in respect of such Security,
or (b) a Conversion Event occurs as contemplated in Section 312(d) or 312(e) or
by the terms of any Security in respect of which the deposit pursuant to
Section 1404(a) has been made, the indebtedness represented by such Security
and any coupons appertaining thereto shall be deemed to have been, and will be,
fully discharged and satisfied through the payment of the principal of (and
premium, if any) and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in
respect of such Security into the Currency in which such Security becomes
payable as a result of such election or Conversion Event based on the
applicable Market Exchange Rate for such Currency in effect on the second
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
79
<PAGE> 87
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at such
place in the Borough of Manhattan, The City of New York or in London as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York or in
London for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote
a majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Securities of a series, the Persons entitled to vote
such specified percentage in
80
<PAGE> 88
principal amount of the Outstanding Securities of such series shall constitute
a quorum. In the absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the request of Holders
of Securities of such series, be dissolved. In any other case the meeting may
be adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may
be further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided
in Section 1502(a), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of any adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the
related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of
such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
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<PAGE> 89
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS. (a) Notwithstanding any provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes, the
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved in
the manner specified in Section 104 or by having the signature of the Person
executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing
appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1502(b), in which case the Company or the Holders of Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000 principal amount
of the Outstanding Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have
no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series
duly called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting,
and the meeting may be held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF
MEETINGS. The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of Securities
of any Series shall be prepared by the secretary of the meeting and there shall
be attached to said record the original
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<PAGE> 90
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the fact, setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 1502 and, if applicable, Section 1504. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one such copy shall be delivered to the Company and another
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS,
DIRECTORS, AND EMPLOYEES
SECTION 1601. EXEMPTION FROM INDIVIDUAL LIABILITY. No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security or coupon, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, stockholder, officer,
director or employee, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment of penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to,
or is or shall be incurred by, the incorporators, stockholders, officers,
directors or employees, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom; and that any and all such personal liability, either at common law
or in equity or by constitution or statute, of, any and all such rights and
claims against, every such incorporator, stockholder, officer, director or
employee, as such because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or coupons or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
83
<PAGE> 91
* * * * *
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
FIRST FINANCIAL MANAGEMENT CORPORATION
By: /s/ Randolph L. M. Hutto
-------------------------------------
[SEAL] Title: Executive Vice President
------------------------------
Attest:
/s/ Barry W. Burt
- -------------------
Assistant Secretary
NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION, as Trustee
By: /s/ Sandra Carreker
-------------------------------------
Title: Vice President
------------------------------
[SEAL]
Attest:
/s/ Julz Burgess
- -------------------
Assistant Secretary
84
<PAGE> 92
STATE OF GEORGIA )
) ss:
COUNTY OF DEKALB )
On the 2nd day of December, 1994, before me personally came
Randolph L.M. Hutto, to me known, who, being by me duly sworn, did depose
and say that he resides at Atlanta, Georgia; that he is Executive VP of First
Financial Management Corporation, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
[NOTARIAL SEAL]
/s/ Karen C. Hill
-------------------------------------
Notary Public
COMMISSION EXPIRES JANUARY 20, 1997
STATE OF GEORGIA )
) ss:
COUNTY OF FULTON )
On the 2nd day of December, 1994, before me personally came
Sandra Carreker, to me known, who, being by me duly sworn, did depose and say
that he/she resides at 417 Coopers Pond Dr; that he/she is Vice President of
NationsBank of Georgia, National Association, one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation; and that he/she signed his/her name thereto by like
authority.
[NOTARIAL SEAL]
/s/ Jeanette S. Belt
-------------------------------------
Notary Public
COMMISSION EXPIRES
Notary Public, Dekalb County, Georgia
My Commission Expires May 10, 1998
<PAGE> 93
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF SECURITIES
TO BE DELIVERED]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise First Financial Management Corporation or its
agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
A-1-1
<PAGE> 94
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]
_____________________ of such interest in the above-captioned Securities in
respect of which we are not able to certify and as to which we understand an
exchange for an interest in a Permanent Global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any interest)
cannot be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated: _________________, 19____
[TO BE DATED NO EARLIER THAN THE 15TH DAY PRIOR
TO (I) THE EXCHANGE DATE OR (II) THE RELEVANT
INTEREST PAYMENT DATE OCCURRING PRIOR TO THE
EXCHANGE DATE, AS APPLICABLE]
[NAME OF PERSON MAKING CERTIFICATION]
________________________________________
(Authorized Signatory)
Name:
Title:
A-1-2
<PAGE> 95
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[INSERT TITLE OR SUFFICIENT DESCRIPTION OF SECURITIES
TO BE DELIVERED]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$] __________________ principal amount of the
above-captioned Securities (i) is owned by person(s) that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source ("United States person(s)"), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or
(b), each such financial institution has agreed, on its own behalf or through
its agent, that we may advise First Financial Management Corporation or its
agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial
institutions described in clause (iii) above (whether or not also described in
clause (i) or (ii)) have certified that they have not acquired the Securities
for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-2-1
<PAGE> 96
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and (ii)
as of the date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated: ________________, 19____
[TO BE DATED NO EARLIER THAN THE
EXCHANGE DATE OR THE RELEVANT
INTEREST PAYMENT DATE OCCURRING
PRIOR TO THE EXCHANGE DATE,
AS APPLICABLE]
[MORGAN GUARANTY TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE,] as Operator
of the Euroclear System
[CEDEL S.A.]
By:_____________________________________
A-2-2
<PAGE> 1
EXHIBIT 4.3
DRAFT--12/2/94
________________________________________________________________________________
FIRST FINANCIAL MANAGEMENT CORPORATION
TO
NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION
Trustee
_______________________________
First Supplemental Indenture
Dated as of December 5, 1994
to
Indenture
Dated as of December 5, 1994
_______________________________
Providing for the Issuance
of
___% Senior Convertible Debentures Due 1999
________________________________________________________________________________
<PAGE> 2
FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental
Indenture"), dated as of December 5, 1994, between FIRST FINANCIAL MANAGEMENT
CORPORATION, a Georgia corporation, and NATIONSBANK OF GEORGIA, NATIONAL
ASSOCIATION, a national banking association organized under the laws of the
United States, Trustee under that certain Indenture dated as of December 5,
1994 (the "Indenture").
WHEREAS, Section 901(7) of the Indenture permits supplements
thereto without the consent of Holders of Securities to establish the form or
terms of Securities of any series as permitted by Sections 201 and 301 of the
Indenture; and
WHEREAS, the Board of Directors of the Company has established
a new series of Securities to be designated as "____% Senior Convertible
Debentures Due 1999," and the Board of Directors of the Company has authorized
an issue of ____________ Million and No/100 Dollars ($___,000,000.00) principal
amount thereof; and
WHEREAS, the Company desires to execute and deliver this First
Supplemental Indenture, in accordance with the provisions of the Indenture, for
the purposes, among others, of providing for the creation of a new series of
Securities, designating the series to be created and specifying the terms and
provisions of the Securities of such series;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE ONE
DEFINITIONS
SECTION 101. DEFINITIONS. For purposes of this First
Supplemental Indenture, all terms used herein, unless otherwise defined herein,
shall have the meaning assigned to them in the Indenture.
ARTICLE TWO
THE DEBENTURES
SECTION 201. TITLE, AMOUNT AND CERTAIN OTHER TERMS. There
shall be hereby established a first series of Securities titled "____% Senior
Convertible Debentures Due 1999" (hereinafter called the "First Series
Debentures"). The aggregate principal amount of the First Series Debentures
that shall be authenticated and delivered under the Indenture and this First
Supplemental Indenture shall be limited to $___,000,000.00 (except for First
Series Debentures authenticated and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other First Series Debentures pursuant to
Sections 304, 305, 306, 906, 1107 and 1305 of the Indenture). The First Series
Debentures may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver the
First Series Debentures upon the written direction of the Company without any
further action by the Company.
<PAGE> 3
The principal of the First Series Debentures shall be due and
payable on December 15, 1999. The First Series Debentures shall bear interest
from December __, 1994 at _____% per annum, which interest shall be payable on
December 15 and June 15, commencing on June 15, 1995. The Regular Record Date
for interest payable on the First Series Debentures shall be December 1 and
June 1 (whether or not a Business Day), as the case may be, next preceding the
relevant Interest Payment Date. Interest shall be computed on the basis of a
360-day year of twelve 30-day months. The principal of (and premium, if any)
and interest on the First Series Debentures shall be paid, First Series
Debentures may be surrendered for registration of transfer, First Series
Debentures may be surrendered for conversion, and notices or demands to or upon
the Company in respect of the First Series Debentures and the Indenture may be
served, at the Corporate Trust Office. Interest may, at the option of the
Company, be paid by mailing a check for such interest, payable to or upon the
written order of the Person entitled thereto pursuant to Sections 307 and 309
of the Indenture, to the address of such Person as it appears on the Security
Register for the First Series Debentures.
First Series Debentures shall be issued as Registered
Securities, without coupons, in denominations of $1,000 and in any integral
multiple thereof.
The form of the First Series Debentures shall be substantially
as set forth in the form established by or pursuant to a Board Resolution or
Officers' Certificate delivered to the Trustee, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by the Indenture or this First Supplemental Indenture, and with such
letters, numbers or other marks of identification or designation and such
legends or endorsements placed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of the Indenture or this First
Supplemental Indenture, or as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the First Series Debentures may be listed, or to
conform to usage.
SECTION 202. REDEMPTION. The First Series Debentures are not
redeemable at the option of the Company prior to December 15, 1997. On and
after December 15, 1997, the Company may, at its option, redeem all or from
time to time any part of the First Series Debentures on any date on or prior to
the close of business on December 15, 1999, upon notice as set forth in Section
1102 of the Indenture, and at the Redemption Prices set forth below (expressed
as percentages of the principal amount) during the twelve-month periods
commencing on the dates set forth below:
<TABLE>
<CAPTION>
If Redemption occurs Redemption
on or after December 15 Price
----------------------- ----------
<S> <C>
1997 %
1998 %
</TABLE>
and 100% if redeemed on December 15, 1999, together in each case with accrued
interest to the date fixed for redemption; provided that if the date fixed for
redemption is an Interest Payment
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<PAGE> 4
Date, then the interest payable on such date shall be paid to the Holder of
record on the Regular Record Date with respect to such Interest Payment Date.
If fewer than all of the First Series Debentures are to be redeemed,
the Trustee will select the First Series Debentures to be redeemed by lot or,
in its discretion, on a pro rata basis.
The First Series Debentures shall not be subject to a sinking fund or
analogous redemption.
SECTION 203. REDEMPTION AT OPTION OF HOLDERS.
(a) If, at any time prior to the close of business
on December 15, 1999, there shall occur a Fundamental Change, then each Holder
of a First Series Debenture shall have the right, at such Holder's option, to
require the Company to redeem all of such Holder's First Series Debentures, or
any portion thereof that is an integral multiple of $1,000 principal amount, on
the date (the "Repurchase Date") that is 45 days after the date of the Company
Notice of such Fundamental Change (or if not a Business Day, the next
succeeding Business Day). The Company shall redeem such First Series
Debentures at a Redemption Price equal to (i) __% if the Repurchase Date is
during the twelve-month period beginning December 15, 1994, (ii) __% if the
Repurchase Date is during the twelve-month period beginning December 15, 1995,
(iii) __% if the Repurchase Date is during the twelve-month period beginning
December 15, 1996, and (iv) after December 14, 1997, the Redemption Price which
would be applicable on the Repurchase Date to a redemption at the option of the
Company pursuant to Section 202 of this First Supplemental Indenture; provided
that with respect to a Fundamental Change in which the holders of the Company's
Common Stock receive only cash, if the Applicable Price with respect to such
Fundamental Change is less than the Reference Market Price, the Company shall
redeem such First Series Debentures at a price equal to the foregoing
redemption price multiplied by the fraction obtained by dividing the Applicable
Price by the Reference Market Price. In each case, the Company shall also pay
to such Holders accrued interest to the Repurchase Date on the redeemed First
Series Debentures; provided that if the Repurchase Date is an Interest Payment
Date, then the interest payable on such date shall be paid to the Holder of
record on the Regular Record Date with respect to such Interest Payment Date.
Upon presentation of any First Series Debenture redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the holder thereof, at the expense of the Company, a new First
Series Debenture or First Series Debentures, of authorized denominations, in
principal amount equal to the unredeemed portion of the First Series Debentures
so presented.
(b) On or before the tenth day after the occurrence of a
Fundamental Change, the Company or, at its request, the Trustee in the name of
and at the expense of the Company, shall mail or cause to be mailed to all
Holders of record on the date of the Fundamental Change a notice (the "Company
Notice") of the occurrence of such Fundamental Change and of the redemption
right at the option of the Holders arising as a result thereof. Such notice
shall be
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<PAGE> 5
mailed in the manner and with the effect set forth in Section 1104 of the
Indenture. The Company shall also deliver a copy of the Company Notice to the
Trustee.
Each Company Notice shall specify the circumstances
constituting the Fundamental Change, the Repurchase Date, the price at
which the Company shall be obligated to redeem First Series Debentures, the
date and time by which the Holder must exercise the redemption right (the
"Fundamental Change Expiration Date"), that the Holder shall have the right to
withdraw any First Series Debentures surrendered prior to the Fundamental
Change Expiration Date, a description of the procedure which a Holder must
follow to exercise such redemption right, the place or places that payment will
be made upon presentation and surrender of such Holder's First Series
Debentures, and the amount of interest accrued on each First Series Debenture
to the Repurchase Date.
No failure of the Company to give the foregoing notices and no
defect therein shall limit the Holder's redemption rights or affect the
validity of the proceedings for the redemption of the First Series Debentures
pursuant to this Section 203.
(c) To exercise a redemption right a Holder shall deliver
to the Company (or an agent designed by the Company in the Company Notice) and
to the Trustee on or before the thirtieth day after the date of the Company
Notice: (i) an irrevocable written notice of the Holder's exercise of such
right, which notice shall set forth the name of the Holder, the principal
amount of First Series Debentures to be redeemed and a statement that the
election to exercise a redemption right is being made thereby; and (ii) the
First Series Debentures with respect to which such redemption right is being
exercised, duly endorsed for transfer to the Company. Such written notice
shall be irrevocable following the Fundamental Change Expiration Date and shall
terminate all conversion rights of the Holder under Article Three of this First
Supplemental Indenture with respect to the First Series Debentures to be
redeemed under this Section 203; provided, however, that if the Company shall
arrange for the purchase and conversion of any such First Series Debentures
pursuant to Section 204 of this First Supplemental Indenture, the purchasers
pursuant to such Section shall have the right to convert such First Series
Debentures as set forth therein. All questions as to the validity, eligibility
(including time of receipt) and acceptance of any First Series Debenture for
repayment shall be determined by the Company, whose determination shall be
final and binding absent manifest error.
(d) On or prior to the Repurchase Date, the Company will
deposit with the Trustee or with one or more paying agents (or, if the Company
is acting as its own paying agent, set aside, segregate and hold in trust as
provided in Section 1003 of the Indenture) an amount of money sufficient to
repay on the Repurchase Date all the First Series Debentures to be repaid on
such date at the appropriate redemption price, together with accrued interest
to the Repurchase Date. Payment for First Series Debentures surrendered for
redemption (and not withdrawn) prior to the Fundamental Change Expiration Date
will be made promptly (but in no event more than three Business Days) following
the Repurchase Date by mailing checks for the amount payable to the Holders of
such First Series Debentures entitled thereto as they shall appear on the
Securities Register for such First Series Debentures.
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<PAGE> 6
(e) The term "Applicable Price" means (i) in the event of
a Fundamental Change in which the holders of the Company's 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 Company's Common Stock (determined as set
forth in 305(f) of this First Supplemental Indenture) during the ten Trading
Days 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 no such record date, the date
upon which the holders of the Common Stock shall have the right to receive such
cash, securities, property or other assets in connection with such Fundamental
Change.
(f) The term "Fundamental Change" means the occurrence of
any transaction or event in connection with which all or substantially all the
Company's Common Stock 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 which is not all
or substantially all common stock which is (or, upon consummation of such
transaction or event, will be) listed on a national securities exchange or
approved for quotation in the National Association of Securities Dealers, Inc.
Automated Quotation System or any similar system of automated dissemination of
quotations of securities prices.
(g) The term "Reference Market Price" shall initially
mean $________, and in the event of any adjustment to the conversion price
pursuant to Section 305 of this First Supplemental Indenture, 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 $_____ to the conversion price specified in
Section 304 of this First Supplemental Indenture (without regard to any
adjustment thereto).
SECTION 204. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
In connection with any redemption of First Series Debentures, the Company may
arrange for the purchase and conversion of any First Series Debentures called
for redemption by an agreement with one or more investment bankers or other
purchasers to purchase such First Series Debentures by paying to the Trustee in
trust for the Holders of the First Series Debentures to be redeemed, on or
before the close of business on the Redemption Date (including, without
limitation, Redemption Dates arising pursuant to redemption under Section 203
of this First Supplemental Indenture), an amount not less than the applicable
Redemption Price of such First Series Debentures, together with interest
accrued to the date fixed for redemption as provided in Sections 202 and 203 of
this First Supplemental Indenture. Notwithstanding anything to the contrary
contained in this Article Two, the obligation of the Company to pay the
Redemption Price of such First Series Debentures, together with interest
accrued to the date fixed for redemption as provided in Sections 202 and 203 of
this First Supplemental Indenture, shall be deemed to be satisfied and
discharged to the extent such amount is so paid by such purchasers. If such an
agreement is entered into, a copy of which will be filed with the Trustee prior
to the Redemption Date, any First Series Debentures called for redemption and
not duly surrendered for conversion by the Holders thereof may, at the option
of the Company, be deemed, to the
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<PAGE> 7
fullest extent permitted by law, acquired by such purchasers from such Holders
and (notwithstanding anything to the contrary contained in Article Three of
this First Supplemental Indenture) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the date
fixed for redemption, subject to payment of the above amount as aforesaid. At
the direction of the Company, the Trustee shall hold and dispose of any such
amount paid to it in the same manner as it would monies deposited with it by
the Company for the redemption of any First Series Debentures. Without the
Trustee's prior written consent, no arrangement between the Company and such
purchasers for the purchase and conversion of any First Series Debentures shall
increase or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in the Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any First Series Debentures between the
Company and such purchasers, including the costs and expenses incurred by the
Trustee in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under the Indenture.
ARTICLE THREE
CONVERSION OF FIRST SERIES DEBENTURES
SECTION 301. RIGHT TO CONVERT. Subject to and upon
compliance with the provisions of the Indenture and this First Supplemental
Indenture, the Holder of any First Series Debenture shall have the right, at
the option of such Holder, at any time prior to the close of business on
December 15, 1999 (except that, with respect to any First Series Debenture or
portion of a First Series Debenture which shall be called for redemption, such
right shall terminate, except as provided in the third paragraph of Section 302
of this First Supplemental Indenture, at the close of business on the
Redemption Date of such First Series Debenture or portion of a First Series
Debenture unless the Company shall default in payment due upon redemption
thereof) to convert the principal amount of any such First Series Debenture, or
any portion of such principal amount which is $1,000 or an integral multiple
thereof, into that number of fully paid and nonassessable shares of Common
Stock (as such shares shall then be constituted) obtained by dividing the
principal amount of the First Series Debenture or portion thereof surrendered
for conversion by the conversion price in effect at such time, by surrender of
the First Series Debenture so to be converted in whole or in part in the manner
provided in Section 302 of this First Supplemental Indenture. A Holder of
First Series Debentures is not entitled to any rights of a holder of Common
Stock until such Holder has converted such Holder's First Series Debentures,
and only to the extent such First Series Debentures are deemed to have been
converted to Common Stock under this Article Three.
The term "Common Stock" shall mean any stock of any class of
the Company which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Company and which is not subject to redemption by the
Company. Subject to the provisions of Section 306 of this First
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<PAGE> 8
Supplemental Indenture, however, shares issuable on conversion of First Series
Debentures shall include only shares of the class designated as Common Stock of
the Company at the date of the First 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 Company and which are not subject to redemption by the
Company; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares
of all such classes resulting from all such reclassifications.
SECTION 302. EXERCISE OF CONVERSION PRIVILEGE; ISSUANCE OF
COMMON STOCK ON CONVERSION; NO ADJUSTMENT FOR INTEREST OR DIVIDENDS. In order
to exercise the conversion privilege, the Holder of any First Series Debenture
to be converted in whole or in part shall surrender such First Series
Debenture, duly endorsed, at an office or agency maintained by the Company
pursuant to Section 1002 of the Indenture, accompanied by the funds, if any,
required by the last paragraph of this Section 302, and shall give written
notice of conversion in the form provided on the First Series Debentures (or
such other notice which is acceptable to the Company) to the Company at such
office or agency that the Holder elects to convert such First Series Debenture
or the portion thereof specified in said notice. Such notice shall also state
the name or names (with address) in which the certificate or certificates for
shares of Common Stock which shall be issuable on such conversion shall be
issued, and shall be accompanied by transfer taxes, if required pursuant to
Section 307 of this First Supplemental Indenture. Each First Series Debenture
surrendered for conversion shall, unless the shares issuable on conversion are
to be issued in the same name as the registration of such First Series
Debenture, be duly endorsed by, or be accompanied by instruments of transfer in
form satisfactory to the Company duly executed by, the Holder or the Holder's
duly authorized attorney.
As promptly as practicable after the surrender of such First
Series Debenture and the receipt of such notice and funds, if any, as
aforesaid, the Company shall issue and deliver at such office or agency to such
Holder, or on such Holder's written order, a certificate or certificates for
the number of full shares of Common Stock issuable upon the conversion of such
First Series Debenture or portion thereof in accordance with the provisions of
this Article Three and a check or cash in respect of any fractional interest in
respect to a share of Common Stock arising upon such conversion, as provided in
Section 303 of this First Supplemental Indenture. In case any First Series
Debenture of a denomination greater than $1,000 shall be surrendered for
partial conversion, and subject to Sections 302 and 305 of the Indenture, the
Company shall execute and the Trustee shall authenticate and deliver to or upon
the written order of the Holder of the First Series Debenture so surrendered,
without charge to such Holder, a new First Series Debenture or First Series
Debentures in authorized denominations in an aggregate principal amount equal
to the unconverted portion of the surrendered First Series Debenture.
Each conversion shall be deemed to have been effected on the
date on which such First Series Debenture (or portion thereof) shall have been
surrendered (accompanied by the funds, if any, required by the last paragraph
of this Section 302) and such notice shall have been
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<PAGE> 9
received by the Company, each as aforesaid, and the Person in whose name any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become on said date the holder of
record of the shares represented thereby; provided, however, that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the Person in whose name the certificates are to be
issued as the record holder thereof for all purposes on the next succeeding day
on which such stock transfer books are open, but such conversion shall be at
the conversion price in effect on the date upon which such First Series
Debenture shall have been surrendered.
Any First Series Debenture (or portion thereof) surrendered
for conversion during the period from the close of business on the Regular
Record Date for any Interest Payment Date to the opening of business on such
Interest Payment Date shall (unless such First Series Debenture (or portion
thereof) being converted shall have been called for redemption) be accompanied
by payment, in funds acceptable to the Company, of an amount equal to the
interest otherwise payable on such Interest Payment Date on the principal
amount being converted; provided, however, that no such payment need be made if
there shall exist at the time of conversion a default in the payment of
interest on the First Series Debentures. An amount equal to such payment shall
be paid by the Company on such Interest Payment Date to the Holder of such
First Series Debenture at the close of business on such Regular Record Date;
provided, however, that if the Company shall default in the payment of interest
on such Interest Payment Date, such amount shall be paid to the Person who made
such required payment. Except as provided above in this Section 302, no
adjustment shall be made for interest accrued on any First Series Debenture
converted or for dividends on any shares issued upon the conversion of such
First Series Debenture as provided in this Article Three.
SECTION 303. CASH PAYMENTS IN LIEU OF FRACTIONAL SHARES. No
fractional shares of Common Stock or scrip representing fractional shares shall
be issued upon conversion of First Series Debentures. If more than one First
Series Debenture shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion shall
be computed on the basis of the aggregate principal amount of the First Series
Debentures (or specified portions thereof to the extent permitted hereby) so
surrendered. If any fractional share of stock would be issuable upon the
conversion of any First Series Debenture or First Series Debentures, the
Company shall make an adjustment therefor in cash at the current market value
thereof. The current market value of a share of Common Stock shall be the last
reported sale price on the first day (which is a Business Day) immediately
preceding the day on which the First Series Debentures (or specified portions
thereof) are deemed to have been converted and such last reported sale price
shall be determined as provided in Section 305(f) of this First Supplemental
Indenture.
SECTION 304. CONVERSION PRICE. The conversion price shall be
$____________, subject to adjustment as provided in this Article Three.
SECTION 305. ADJUSTMENT OF CONVERSION PRICE. The conversion
price shall be adjusted from time to time by the Company as follows:
-8-
<PAGE> 10
(a) In case the Company shall (i) pay a dividend,
or make a distribution, in shares of its Common Stock, on its Common
Stock, (ii) subdivide its outstanding Common Stock into a greater
number of shares, or (iii) combine its outstanding Common Stock into a
smaller number of shares, the conversion price in effect immediately
prior thereto shall be adjusted so that the Holder of any First Series
Debenture thereafter surrendered for conversion shall be entitled to
receive the number of shares of Common Stock of the Company which such
Holder would have owned or have been entitled to receive after the
happening of any of the events described above had such First Series
Debenture been converted immediately prior to the happening of such
event. An adjustment made pursuant to this Section 305(a) shall
become effective immediately after the record date in the case of a
dividend and shall become effective immediately after the effective
date in the case of subdivision or combination.
(b) In case the Company shall issue rights or
warrants to all holders of its Common Stock entitling them (for a
period expiring within 45 days after the record date mentioned below)
to subscribe for or purchase Common Stock at a price per share less
than the Current Market Price per share of Common Stock (as defined in
Section 305(f) of this First Supplemental Indenture) at the date fixed
for the determination of stockholders entitled to receive such rights
or warrants, except as provided in Section 305(f) of this First
Supplemental Indenture, the conversion price in effect immediately
prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the conversion price in effect immediately
prior to the date of issuance of such rights or warrants by a fraction
of which the numerator shall be the number of shares of Common Stock
outstanding on the date of issuance of such rights or warrants plus
the number of shares which the aggregate offering price of the total
number of shares so offered would purchase at such Current Market
Price, and of which the denominator shall be the number of shares of
Common Stock outstanding on the date of issuance of such rights or
warrants plus the total number of additional shares of Common Stock
offered for subscription or purchase. Such adjustment shall be made
successively whenever any such rights or warrants are issued, and
shall become effective immediately after such record date, except as
provided in Section 305(f) of this First Supplemental Indenture. In
determining whether any rights or warrants entitle the holders to
subscribe for or purchase shares of Common Stock at less than such
Current Market Price, and in determining the aggregate offering price
of such shares of Common Stock, there shall be taken into account any
consideration received by the Company for such rights or warrants, the
value of such consideration, if other than cash, to be determined by
the Board of Directors. To the extent that any shares of Common Stock
issuable upon exercise of such rights or warrants are not delivered
due to non-exercise of such rights or warrants, the conversion price
shall be readjusted to the conversion price which would then be in
effect had the adjustments made upon the issuance of such rights or
warrants been made on the basis of delivery of only the number of
shares of Common Stock actually delivered.
(c) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock any shares of
capital stock of the Company (other than
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<PAGE> 11
Common Stock) or evidences of its indebtedness or assets (including
securities, but excluding any rights or warrants referred to in
Section 305(b) of this First Supplemental Indenture, and excluding any
dividend or distribution (x) in connection with the liquidation,
dissolution or winding up of the Company, whether voluntary or
involuntary, (y) paid exclusively in cash or (z) referred to in
Section 305(a) of this First Supplemental Indenture), any of the
foregoing distributions (except such excluded distributions)
hereinafter in this Section 305(c) called the "Distribution
Securities," then, in each case, unless the Company elects to reserve
such Distribution Securities for distribution to the Holders of First
Series Debentures upon the conversion of the First Series Debentures
so that any such Holder converting First Series Debentures will
receive upon such conversion, in addition to the shares of Common
Stock to which such Holder is entitled, the amount and kind of such
Distribution Securities which such Holder would have received if such
Holder had, immediately prior to the Distribution Record Date (as
defined below) for such distribution of the Distribution Securities,
converted its First Series Debentures into Common Stock, the
conversion price shall be reduced so that the same shall be equal to
the price determined by multiplying the conversion price in effect on
the Distribution Record Date by a fraction of which the numerator
shall be the Current Market Price per share of the Common Stock on the
Distribution Record Date less the fair market value (as determined by
the Board of Directors or, to the extent permitted by applicable law,
a duly authorized committee thereof, whose determination shall be
conclusive, and described in a resolution of the Board of Directors or
such duly authorized committee, as the case may be) on the
Distribution Record Date of the portion of the Distribution Securities
so distributed applicable to one share of Common Stock and the
denominator shall be the Current Market Price per share of the Common
Stock, such reduction to become effective immediately prior to the
opening of business on the day following such Distribution Record
Date; provided, however, that in the event the then fair market value
(as so determined) of the portion of the Distribution Securities so
distributed applicable to one share of Common Stock is equal to or
greater than the Current Market Price of the Common Stock on the
Distribution Record Date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Holder of First Series
Debentures shall have the right to receive upon conversion the amount
of Distribution Securities such Holder would have received had such
Holder converted each First Series Debenture on the Distribution
Record Date. In the event that such dividend or distribution is not
so paid or made, the conversion price shall again be adjusted to be
the conversion price which would then be in effect if such dividend or
distribution had not been declared. If the Board of Directors (or, to
the extent permitted by applicable law, a duly authorized committee
thereof) determines the fair market value of any distribution for
purposes of this Section 305(c) by reference to the actual or when
issued trading market for any securities, it must in doing so consider
the prices in such market over the same period used in computing the
Current Market Price of the Common Stock.
For purposes of this Section 305(c) and Sections
305(a) and (b) of this First Supplemental Indenture, any dividend or
distribution to which this Section 305(c) is applicable that also
includes shares of Common Stock, or rights or warrants to subscribe
for or purchase shares of Common Stock (or both), shall be deemed
instead
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<PAGE> 12
to be (1) a dividend or distribution of the evidences of indebtedness,
assets or shares of capital stock other than such shares of Common
Stock or rights or warrants (and any conversion price reduction
required by this Section 305(c) with respect to such dividend or
distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Common Stock or such rights
or warrants (and any further conversion price reduction required by
Sections 305(a) and (b) of this First Supplemental Indenture with
respect to such dividend or distribution shall then be made, except
the Distribution Record Date of such dividend or distribution shall be
substituted as "the record date in case of a dividend" and "the date
of issuance of such rights or warrants" within the meaning of Sections
305(a) and (b) of this First Supplemental Indenture).
(d) In case the Company shall, by dividend or
otherwise, distribute to all holders of its Common Stock cash
(excluding (x) any quarterly or semi-annual cash dividend on the
Common Stock to the extent the aggregate cash dividend per share of
Common Stock in any fiscal quarter or, in the case of a semi-annual
dividend, semi-annual period does not exceed the greater of (A) the
amount per share of Common Stock of the next preceding quarterly or,
in the case of a semi-annual dividend, semi-annual cash dividend on
the Common Stock to the extent not requiring any adjustment of the
conversion price pursuant to this Section 305(d) (as adjusted to
reflect subdivisions or combinations of the Common Stock), and (B) in
the case of a quarterly dividend, 3.75% of the Current Market Price
or, in the case of a semi-annual dividend, 7.50% of the Current Market
Price of the Common Stock, in each case on the Trading Day (as defined
in Section 305(f) of this First Supplemental Indenture) next preceding
the date of declaration of such dividend and (y) any dividend or
distribution in connection with the liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary), then, in
such case, unless the Company elects to reserve such cash for
distribution to the Holders of the First Series Debentures upon the
conversion of the First Series Debentures so that any such Holder
converting First Series Debentures will receive upon such conversion,
in addition to the shares of Common Stock to which such Holder is
entitled, the amount of cash which such Holder would have received if
such Holder had, immediately prior to the Distribution Record Date for
such distribution of cash, converted its First Series Debentures into
Common Stock, the conversion price shall be reduced so that the same
shall equal the price determined by multiplying the conversion price
in effect immediately prior to the Distribution Record Date by a
fraction of which the numerator shall be the Current Market Price of
the Common Stock on the Distribution Record Date less the amount of
cash so distributed (and not excluded as provided above) applicable to
one share of Common Stock and the denominator shall be such Current
Market Price of the Common Stock, such reduction to be effective
immediately prior to the opening of business on the day following the
Distribution Record Date; provided, however, that in the event the
portion of the cash so distributed applicable to one share of Common
Stock is equal to or greater than the Current Market Price of the
Common Stock on the Distribution Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of
First Series Debentures shall have the right to receive upon
conversion the amount of cash such Holder would have received had such
Holder converted each First Series Debenture on
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<PAGE> 13
the Distribution Record Date. In the event that such dividend or
distribution is not so paid or made, the conversion price shall again
be adjusted to be the conversion price which would then be in effect
if such dividend or distribution had not been declared.
(e) In case a Tender Offer (as defined below) or
exchange offer made by the Company or any Subsidiary of the Company to
all holders of its Common Stock for all or any portion of the Common
Stock shall expire and such Tender Offer or exchange offer shall
involve the payment by the Company or such Subsidiary of consideration
per share of Common Stock having a fair market value (as determined by
the Board of Directors or, to the extent permitted by applicable law,
a duly authorized committee thereof, whose determination shall be
conclusive, and described in a resolution of the Board of Directors or
such duly authorized committee thereof, as the case may be) at the
last time (the "Expiration Time") tenders or exchanges may be made
pursuant to such Tender Offer or exchange offer (as it shall have been
amended) that exceeds the Current Market Price of the Common Stock on
the Trading Day next succeeding the Expiration Time, the conversion
price shall be reduced so that the same shall equal the price
determined by multiplying the conversion price in effect immediately
prior to the Expiration Time by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding (including
any tendered or exchanged shares) on the Expiration Time multiplied by
the Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time and the denominator shall be the sum of
(x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to shareholders based on the acceptance (up to
any maximum specified in the terms of the Tender Offer or exchange
offer) of all shares validly tendered or exchanged and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up to any
such maximum, being referred to as the "Purchased Shares") and (y) the
product of the number of shares of Common Stock outstanding (less any
Purchased Shares) on the Expiration Time and the Current Market Price
of the Common Stock on the Trading Day next succeeding the Expiration
Time, such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time. In the
event that the Company is obligated to purchase shares pursuant to any
such Tender Offer or exchange offer, but the Company is permanently
prevented by applicable law from effecting any such purchases or all
such purchases are rescinded, the conversion price shall again be
adjusted to be the conversion price which would then be in effect if
such Tender Offer or exchange offer had not been made.
(f) For the purpose of any computation under
Sections 305(b), (c), (d) and (e) of this First Supplemental
Indenture, the "Current Market Price" per share of Common Stock at any
date shall be deemed to be the average of the last reported sale
prices for the ten consecutive Trading Days (as defined below)
preceding the day before the record date with respect to any
distribution, issuance or other event requiring such computation;
provided (1) if the "ex" date (as hereinafter defined) for any event
(other than the issuance or distribution or Fundamental Change
requiring such computation) that requires an adjustment to the
conversion price pursuant to Section 305(a), (b), (c), (d) or (e) of
this First Supplemental Indenture occurs during such ten consecutive
Trading
-12-
<PAGE> 14
Days, the last reported sale price for each Trading Day prior to the
"ex" date for such other event shall be adjusted by multiplying such
last reported sale price for each Trading Day on and after the "ex"
date for such other event by the same fraction by which the conversion
price is so required to be adjusted as a result of such other event,
(2) if the "ex" date for any event (other than the issuance,
distribution or Fundamental Change requiring such computation) that
requires an adjustment to the conversion price pursuant to Section
305(a), (b), (c), (d) or (e) of this First Supplemental Indenture
occurs on or after the "ex" date for the issuance or distribution
requiring such computation and prior to the day in question, the last
reported sale price for each Trading Day on and after the "ex" date
for such other event shall be adjusted by multiplying such last
reported sale price by the reciprocal of the fraction by which the
conversion price is so required to be adjusted as a result of such
other event, and (3) if the "ex" date for the issuance, distribution
or Fundamental Change requiring such computation is prior to the day
in question, after taking into account any adjustment required
pursuant to clause (1) or (2) of this proviso, the last reported sale
price for each Trading Day on or after such "ex" date shall be
adjusted by adding thereto the amount of any cash and the fair market
value (as determined by the Board of Directors or, to the extent
permitted by applicable law, a duly authorized committee thereof in a
manner consistent with any determination of such value for purposes of
Section 305(c) or (e) of this First Supplemental Indenture, whose
determination shall be conclusive and described in a resolution of the
Board of Directors or such duly authorized committee thereof, as the
case may be) of the evidences of indebtedness, shares of capital stock
or assets being distributed applicable to one share of Common Stock as
of the close of business on the day before such "ex" date.
For purposes of this Section 305(f), the term "ex"
date, (I) when used with respect to any issuance or distribution,
means the first date on which the Common Stock trades regular way on
the relevant exchange or in the relevant market from which the last
reported sale price was obtained without the right to receive such
issuance or distribution, (II) when used with respect to any
subdivision or combination of shares of Common Stock, means the first
date on which the Common Stock trades regular way on such exchange or
in such market after the time at which such subdivision or combination
becomes effective, and (III) when used with respect to any Tender
Offer or exchange offer means the first date on which the Common Stock
trades regular way on such exchange or in such market after the
Expiration Time of such offer.
The last reported sale price for each day shall be
(i) the last sale price, or the closing bid price if no sale occurred,
of such class of stock on the New York Stock Exchange (or, if not
listed on such exchange, then on the principal securities exchange, if
any, on which such class of stock is listed), or (ii) the last
reported sale price of Common Stock on the National Market System of
the National Association of Securities Dealers, Inc. Automated
Quotation System, or any similar system of automated dissemination of
quotations of securities prices then in common use, if so quoted, or
(iii) if not quoted as described in clause (ii), the mean between the
high bid and low asked quotations for Common Stock as reported by the
National Quotation Bureau Incorporated
-13-
<PAGE> 15
if at least two securities dealers have inserted both bid and asked
quotations for such class of stock on at least 5 of the 10 preceding
days. If the Common Stock is quoted on a national securities or
central market system, in lieu of a market or quotation system
described above, the last reported sale price shall be determined in
the manner set forth in clause (iii) of the preceding sentence if bid
and asked quotations are reported but actual transactions are not, and
in the manner set forth in clause (i) of the preceding sentence if
actual transactions are reported. If none of the conditions set forth
above is met, the last reported sale price of Common Stock on any day
or the average of such last reported sale prices for any period shall
be the fair market value of such class of stock as determined by a
member firm of the New York Stock Exchange, Inc. selected by the
Company.
As used herein the term "Trading Days" with respect
to Common Stock means (I) if the Common Stock is listed or admitted
for trading on any national securities exchange, days on which such
national securities exchange is open for business or (II) if the
Common Stock is quoted on the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotation System or
any similar system of automated dissemination of quotations of
securities prices, days on which trades may be made on such system.
In addition, for purpose of any computation under
this Section 305: (x) the market value or exercise price of any
rights or warrants shall be determined without giving effect to any
potential adjustment that is contingent upon the occurrence of any
event other than the passage of time; and (y) to the extent that any
right or warrant is subject to any condition (other than the passage
of time), the date of issuance or distribution of such right or
warrant and the record date for the determination of stockholders
entitled to receive such rights or warrants shall be deemed to be the
date of occurrence of such condition.
(g) "Distribution Record Date" shall mean, with
respect to any dividend, distribution or other transaction or event in
which the holders of Common Stock have the right to receive any cash,
securities or other property or in which the Common Stock (or other
applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed for
determination of shareholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board
of Directors or by statute, contract or otherwise).
(h) "Tender Offer" means a written offer by the
Company or any Subsidiary of the Company (and widely publicized by the
Company or such Subsidiary as a tender offer) to purchase all or any
portion of the Common Stock of the Company, which offer is determined
by the Board of Directors (or, to the extent permitted by applicable
law, a duly authorized committee thereof) in good faith to constitute
a traditional tender offer based on the type of transaction
traditionally characterized by investors, market professionals and
other participants in the securities industry as a tender offer.
Without in any way limiting the foregoing, such term is not intended
to include
-14-
<PAGE> 16
the broader array of transactions that are sometimes characterized as
tender offers by the Securities and Exchange Commission or the courts,
but are not determined by the Board of Directors (or, to the extent
permitted by applicable law, a duly authorized committee thereof) in
good faith to constitute a traditional tender offer.
(i) No adjustment in the conversion price shall
be required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that any
adjustments which by reason of this subsection (i) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article Three
shall be made by the Company and shall be made to the nearest cent or
to the nearest one hundredth of a share, as the case may be. Anything
in this Section 305 to the contrary notwithstanding, the Company shall
be entitled to make such reductions in the conversion price, in
addition to those required by this Section 305, as it in its
discretion shall determine to be advisable in order that any stock
dividends, subdivision of shares, distribution of rights to purchase
stock or securities, or a distribution of securities convertible into
or exchangeable for stock hereafter made by the Company to its
stockholders shall not be taxable.
(j) Whenever the conversion price is adjusted as
herein provided, the Company shall promptly file with the Trustee and
any conversion agent other than the Trustee an Officers' Certificate
setting forth the conversion price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment.
Promptly after delivery of such certificate, the Company shall prepare
a notice of such adjustment of the conversion price setting forth the
adjusted conversion price and the date on which such adjustment
becomes effective and shall mail such notice of such adjustment of the
conversion price to the Holder of each First Series Debenture at such
Holder's last address appearing on the Security Register for the First
Series Debentures.
(k) In any case in which this Section 305
provides that an adjustment shall become effective immediately after a
record date for an event, the Company may defer until the occurrence
of such event (i) issuing to the Holder of any First Series Debenture
converted after such record date and before the occurrence of such
event the additional shares of Common Stock issuable upon such
conversion by reason of the adjustment required by such event over and
above the number of shares of Common Stock issuable upon such
conversion before giving effect to such adjustment and (ii) paying to
such Holder any amount in cash in lieu of any fraction pursuant to
Section 303 of this First Supplemental Indenture.
SECTION 306. 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 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
-15-
<PAGE> 17
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 the Trustee a supplemental
indenture (which shall conform to the Trust Indenture Act as in force at the
date of execution of such supplemental indenture) providing that each First
Series 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 First Series Debentures (assuming, for such purposes, a
sufficient number of authorized shares of Common Stock available to convert all
such First Series Debentures) immediately prior to such reclassification,
change, consolidation, merger, combination, sale or conveyance assuming such
holder of Common Stock did not exercise such holder's rights of election, if
any, as to the kind or amount of securities, cash or other property receivable
upon such reclassification, consolidation, change, merger, statutory exchange,
sale or conveyance (provided that, if the kind or amount of securities, cash or
other property receivable upon such consolidation, merger, exchange, sale or
conveyance is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised ("non-electing share"),
then for the purposes of this Section 306 the kind and amount of securities,
cash or other property receivable upon such consolidation, merger, statutory
exchange, sale or conveyance for each non-electing share shall be deemed to be
the kind and amount so receivable per share by a plurality of the non-electing
shares). 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 Three.
The Company shall promptly cause notice of the execution of
such supplemental indenture to be mailed to each Holder of First Series
Debentures, at such Holder's address appearing on the Security Register for the
First Series Debentures.
The above provisions of this Section 306 shall similarly apply
to successive reclassifications, changes, consolidations, mergers,
combinations, sales and conveyances.
SECTION 307. TAXES ON SHARES ISSUED. The issue of stock
certificates on conversions of First Series Debentures shall be made without
charge to the converting Holder for any tax in respect of the issue thereof.
The Company shall not, however, be required to pay any tax which may be payable
in respect of any transfer involved in the issue and delivery of stock in any
name other than that of the Holder of any First Series Debenture converted, and
the Company shall not be required to issue or deliver any such stock
certificate unless and until the person or persons requesting the issue thereof
shall have paid to the Company the amount of such tax or shall have established
to the satisfaction of the Company that such tax has been paid.
SECTION 308. RESERVATION OF SHARES; SHARES TO BE FULLY PAID;
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS; LISTING OF COMMON STOCK. The
Company shall provide,
-16-
<PAGE> 18
free from preemptive rights, out of its authorized but unissued shares or
shares held in treasury, sufficient shares to provide for the conversion of the
First Series Debentures, from time to time as such First Series Debentures are
presented for conversion.
Before taking any action 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 First Series Debentures, the
Company will take all corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue
shares of such Common Stock at such adjusted conversion price.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of First Series Debentures will upon issue be
fully paid and nonassessable by the Company and free from all taxes, liens and
charges with respect to the issue thereof.
The Company covenants that if any shares of Common Stock to be
provided for the purpose of conversion of First Series 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 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 the Common
Stock shall be listed on the New York Stock Exchange or any other national
securities exchange the Company will, 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 First Series
Debentures.
SECTION 309. RESPONSIBILITY OF TRUSTEE. The Trustee and any
other conversion agent shall not at any time be under any duty or
responsibility to any Holder of First Series Debentures to determine whether
any facts exist which may require any adjustment of the conversion price, or
with respect to the nature or extent or calculation of any such adjustment when
made, or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. The Trustee and any
other conversion agent shall not be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common Stock, or of any
securities or property, which may at any time be issued or delivered upon the
conversion of any First Series Debenture; and the Trustee and any other
conversion agent make no representations with respect thereto. Neither the
Trustee nor any conversion agent shall be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or cash upon the surrender of any
First Series Debenture for the purpose of conversion or to comply with any of
the duties, responsibilities or covenants of the Company contained in this
Article Three. Without limiting the generality of the foregoing, neither the
Trustee nor any conversion agent shall be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
entered into pursuant to Section 306 of this First Supplemental Indenture
relating either to the kind or amount of shares of stock or securities or
property (including cash) receivable by Holders of First Series Debentures upon
the conversion of their First Series
-17-
<PAGE> 19
Debentures after any event referred to in Section 306 of this First
Supplemental Indenture or to any adjustment to be made with respect thereto,
but, subject to the provisions of Section 602 of the Indenture may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers' Certificate and Opinion of Counsel
(which the Company shall be obligated to file with the Trustee prior to the
execution of any such supplemental indenture) with respect thereto.
SECTION 310. NOTICE TO HOLDERS PRIOR TO CERTAIN ACTIONS. In
case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock, which dividend or distribution,
under Section 305 of this First Supplemental Indenture, would require
an adjustment to the conversion price for the First Series Debentures;
or
(b) the Company shall authorize the granting to the
holders of its Common Stock of rights or warrants to subscribe for or
purchase any share of any class or any other rights or warrants, which
grant, under Section 305 of this First Supplemental Indenture, would
require an adjustment to the conversion price for the First Series
Debentures; or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation or
merger to which the Company is a party, to which the Company is not
the surviving corporation and for which approval of any shareholders
of the Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
Holder of First Series Debentures, at such Holder's address appearing on the
Security Register, as promptly as possible but in any event at least 15 days
prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the
date as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up is expected to become effective or occur, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
-18-
<PAGE> 20
ARTICLE FOUR
MISCELLANEOUS
SECTION 401. GOVERNING LAW, ETC. This First Supplemental
Indenture shall be deemed to be a contract made under the laws of the State of
New York and for all purposes shall be construed in accordance with the laws of
the State of New York (without regard to principles of conflicts of laws). The
terms and conditions of this First Supplemental Indenture shall be, and be
deemed to be, part of the terms and conditions of the Indenture for any and all
purposes applicable to the First Series Debentures, in accordance with the
terms and provisions of Section 901 of the Indenture. Other than as amended
and supplemented by this First Supplemental Indenture, the Indenture is in all
respects ratified and confirmed.
SECTION 402. ACCEPTANCE BY TRUSTEE. The Trustee hereby
accepts this First Supplemental Indenture and agrees to perform the same upon
the terms and conditions set forth in the Indenture.
SECTION 403. THE INDENTURE AS SUPPLEMENTED. From and after
the date of this First Supplemental Indenture, for purposes of all Securities,
all references in the Indenture to this "Indenture" shall refer to the
Indenture as supplemented hereby.
[Signatures on following page]
-19-
<PAGE> 21
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed all as of the day and year first
above written.
FIRST FINANCIAL MANAGEMENT CORPORATION
By:___________________________________________
Name:
Title:
NATIONSBANK OF GEORGIA, NATIONAL ASSOCIATION,
as Trustee
By:___________________________________________
Name:
Title:
-20-
<PAGE> 1
EXHIBIT 5.1
S u t h e r l a n d, A s b i l l & B r e n n a n
ATLANTA
999 PEACHTREE STREET, N.E. AUSTIN
TEL: (404) 853-8000 ATLANTA, GEORGIA 30909-3996 NEW YORK
FAX: (404) 853-8806 WASHINGTON
December 5, 1994
First Financial Management Corporation
3 Corporate Square, Suite 700
Atlanta, Georgia 30329
Ladies and Gentlemen:
We are acting as counsel to First Financial Management
Corporation, a Georgia corporation ("FFMC") in connection with the preparation
of the Registration Statement No. 33-56327 on Form S-3, filed by FFMC on
November 4, 1994 (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "1933 Act") relating to the initial offering of the convertible
debentures described below and the delayed offering, from time to time pursuant
to Rule 415 under the 1933 Act (the "Delayed Offering"), as set forth in the
prospectus contained in the Registration Statement (the "Prospectus") and as
set forth or to be set forth in one or more supplements to the Prospectus (each
such supplement, a "Prospectus Supplement"), of the Company's (i) debt
securities (the "Debt Securities"), (ii) convertible debt securities (the
"Convertible Debt Securities") and (iii) common stock, par value $.10 per share
(the "Common Stock"), with an aggregate offering price of up to $1 billion.
The Debt Securities, Convertible Debt Securities and Common Stock are
collectively referred to herein as the "Securities." Any Convertible Debt
Securities may be convertible into Common Stock.
The Debt Securities and the Convertible Debt Securities will
be issued in one or more series and will be issued pursuant to either an
Indenture dated December 5, 1994 (the "NationsBank Indenture") between FFMC and
NationsBank of Georgia, National Association, trustee ("NationsBank") or an
indenture in the form filed as an exhibit to the Registration Statement (the
"Chase Indenture") between the Company and The Chase Manhattan Bank (National
Association), trustee ("Chase"). NationsBank and Chase are each also referred
to as a "Trustee," and the NationsBank Indenture and the Chase Indenture are
each also referred to as an "Indenture."
Amendment No. 2 to the Registration Statement contains a
Prospectus Supplement (the "Debenture Prospectus Supplement") covering the
public offering of $460 million (including $60 million to cover
over-allotments) of Senior Convertible Debentures due 1999 (the "Debentures")
pursuant to an underwriting agreement, the form of which is
<PAGE> 2
First Financial Management Corporation
December 5, 1994
Page 2
being filed with Amendment No. 2 as an exhibit to the Registration Statement
(the "Underwriting Agreement"). The Debentures will be issued pursuant to the
NationsBank Indenture and a related First Supplemental Indenture (the
"Debenture Indenture Supplement") to be executed and delivered thereunder.
Pursuant to Rule 430A under the 1933 Act, the Underwriting Agreement as being
filed with Amendment No. 2 to the Registration Statement omits certain
information, including the public offering price, underwriting discounts or
commissions and interest and conversion rates and call prices of the Debentures
(the "Rule 430A Information"), which will be completed prior to execution of
the Underwriting Agreement.
Based on our review of the relevant documents and materials
used in preparing the Registration Statement, the Prospectus and the Debenture
Prospectus Supplement and the corporate proceedings of FFMC to date with
respect to the proposed issuance and sale of the Securities, including
resolutions of the Board of Directors of FFMC and committees thereof (the
"Resolutions") authorizing the NationsBank Indenture and the issuance, offering
and sale of the Securities and such corporate records of FFMC and such other
documents and certificates as we have deemed necessary, and having regard for
such legal considerations as we have deemed relevant, we are of the opinion
that:
1. The NationsBank Indenture has been duly authorized, executed
and delivered by FFMC and, assuming due authorization, execution and delivery
thereof by NationsBank, constitutes a valid and legally binding instrument of
FFMC enforceable against FFMC in accordance with its terms.
2. The Debentures have been duly authorized, and when (a) the
Registration Statement has been declared effective by order of the Commission,
(b) the final terms of the Debentures have been duly established and approved
and included in the Debenture Indenture Supplement and such Debenture Indenture
Supplement has been duly executed by FFMC pursuant to the authority granted in
the Resolutions, (c) the Underwriting Agreement containing the Rule 430A
Information has been duly executed by FFMC pursuant to the authority granted in
the Resolutions, (d) the Debentures shall have been sold upon the terms and
conditions (including the Rule 430A Information) set forth in the Prospectus,
the Debenture Prospectus Supplement and the Underwriting Agreement, and (e) the
Debentures have been duly executed by FFMC and authenticated by NationsBank in
accordance with the NationsBank Indenture and the Debenture Indenture
Supplement and delivered and paid for by the purchasers thereof, then the
Debentures will constitute valid and legally binding obligations of FFMC
entitled to the benefits of the NationsBank Indenture.
<PAGE> 3
First Financial Management Corporation
December 5, 1994
Page 3
3. The Common Stock initially issuable upon conversion of the
Debentures has been duly authorized and, when issued and delivered upon
conversion of the Debentures, will be validly issued, fully paid and
nonassessable.
4. The Chase Indenture, when duly approved by a duly authorized
committee of the Board of Directors, executed and delivered by FFMC pursuant to
the authority granted in the resolutions, and assuming due authorization,
execution and delivery thereof by Chase, will have been duly authorized and
will constitute a valid and legally binding instrument of FFMC enforceable
against FFMC in accordance with its terms.
5. The Debt Securities, when the final terms thereof have been
duly established and approved and when duly executed by FFMC, in each case
pursuant to the authority granted in the Resolutions, and authenticated by the
applicable Trustee in accordance with the applicable Indenture and delivered to
and paid for by the purchasers thereof, will have been duly authorized and will
constitute valid and legally binding obligations of FFMC entitled to the
benefits of such Indenture.
6. The Convertible Debt Securities to be issued in the Delayed
Offering, when the final terms thereof have been duly established and approved
and when duly executed by FFMC, in each case pursuant to the authority granted
in the Resolutions, and authenticated by the applicable Trustee in accordance
with the applicable Indenture and delivered to and paid for by the purchasers
thereof, will constitute valid and legally binding obligations of FFMC entitled
to the benefits of such Indenture.
7. The Common Stock issuable on conversion of any issue of
Convertible Debt Securities issued in the Delayed Offering, when duly
authorized pursuant to the authority granted in the Resolutions and when issued
and delivered upon conversion of such Convertible Debt Securities, will be
validly issued, fully paid and non-assessable.
8. The Common Stock issued in the Delayed Offering other than
upon conversion of any Convertible Debt Securities, when duly authorized,
issued and delivered pursuant to the authority granted in the Resolutions and
against payment therefor, will be validly issued, fully paid and
non-assessable.
The opinions set forth above are subject to the qualification
that the enforceability of the Indentures and the Securities may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
relating to or affecting the enforcement of creditors' rights generally and are
subject to general equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law).
<PAGE> 4
First Financial Management Corporation
December 5, 1994
Page 4
The opinions set forth above are limited to the laws of the
States of New York and Georgia and the federal laws of the United States, and
we express no opinion herein concerning the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to our name under the
caption "Legal Matters" in the Prospectus and in the Debenture Prospectus
Supplement.
Yours very truly,
SUTHERLAND, ASBILL & BRENNAN
By: /s/ F. Louise Adams
------------------------
F. Louise Adams, Partner
<PAGE> 1
EXHIBIT 12.1
FIRST FINANCIAL MANAGEMENT CORPORATION
RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in thousands)
<TABLE>
<CAPTION>
Nine Months
Ended
Year Ended December 31, September 30,
-------------------------------------------- -----------------
1993 1992 1991 1990 1989 1994 1993
--------------------------------------------- -----------------
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings Were Calculated as follows:
Income from continuing operations
before income taxes $215,757 $65,106 $104,643 $ 79,154 $69,341 $176,248 $144,686
Add fixed charges 16,912 24,910 27,066 32,698 27,647 11,491 11,826
--------------------------------------------- ------------------
Earnings $232,669 $90,016 $131,709 $111,852 $96,988 $187,739 $156,512
============================================= ==================
Fixed charges were calculated as follows:
Interest expense $ 4,394 $10,957 $16,233 $ 24,465 $23,647 $ 1,348 $ 3,818
Estimated interest component in rent expense 12,518 13,953 10,833 8,233 4,000 10,143 8,008
--------------------------------------------- ------------------
Fixed charges (2) $ 16,912 $24,910 $27,066 $ 32,698 $27,647 $ 11,491 $ 11,826
============================================= ==================
Ratio of Earnings to Fixed Charges (1) 13.76 3.61 4.87 3.42 3.51 16.34 13.23
============================================= ==================
</TABLE>
(1) The ratio of earnings to fixed charges was computed by dividing the sum
of income from continuing operations before income taxes plus fixed
charges by fixed charges.
(2) Fixed charges related to a $4 billion financial institution discontinued
in 1992 have been excluded from the above computation.
