<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 7, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------
FMC CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 94-0479804
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
(312) 861-6000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
--------------
ROBERT L. DAY
SECRETARY AND ASSISTANT GENERAL COUNSEL
FMC CORPORATION
200 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
(312) 861-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
JOSEPH A. WALSH, JR. ROBERT E. CURLEY
WINSTON & STRAWN MAYER, BROWN & PLATT
35 WEST WACKER DRIVE 190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60601 CHICAGO, ILLINOIS 60603
(312) 558-5600 -------------- (312) 782-0600
Approximate date of commencement of proposed sale of public: From time to
time after the effective date of this registration statement as the Registrant
shall determine.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_] ___________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_] ____________________________________________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED(1) REGISTERED PER UNIT PRICE(2) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.10 par
value(3)..............
Preferred Stock, without
par value.............
Depository Shares
Representing Preferred
Stock, without par
value................. (4) (4) $500,000,000(4)(5) $155,172.41(5)
Debt Securities........
Warrants to Purchase
Common Stock..........
Warrants to Purchase
Preferred Stock.......
Warrants to Purchase
Debt Securities.......
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</TABLE>
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(1) Securities registered hereunder (the "Offered Securities") may be sold
separately, together or as units with other Offered Securities registered
hereunder. The Offered Securities registered hereunder also include such
indeterminate number of shares of Common Stock and Preferred Stock that
may be issued upon conversion of convertible debt securities or
convertible preferred stock.
(2) Estimated in accordance with Rule 457 solely for the purpose of computing
the registration fee.
(3) Includes preferred stock purchase rights.
(4) Pursuant to Rule 457(o) under the Securities Act of 1933, as amended (the
"Securities Act"), which permits the registration fee to be calculated on
the basis of the maximum offering price of all the securities listed, the
table does not specify by each class information as to the amount to be
registered, proposed maximum offering price per unit or proposed maximum
aggregate offering price.
(5) Of the $500,000,000 of Offered Securities registered hereby, $50,000,000
aggregate principal amount of such securities were registered pursuant to
Registration Statement No. 33-45648 and are unissued as of the date
hereof. A registration fee of $15,625 was previously paid with respect to
such securities.
Pursuant to Rule 429 under the Securities Act, the Prospectus filed as part
of this Registration Statement relates to the securities registered hereby,
including the remaining unsold $50,000,000 principal amount of debt securities
previously registered by Registrant under its Registration Statement on Form
S-3 (File No. 33-45648). Such Registration Statement is amended to reflect the
information contained herein.
--------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+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. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 7, 1995
PROSPECTUS
$500,000,000
FMC CORPORATION
COMMON STOCK, PREFERRED STOCK, DEPOSITORY SHARES, DEBT SECURITIES, WARRANTS TO
PURCHASE COMMON STOCK, WARRANTS TO PURCHASE PREFERRED STOCK AND WARRANTS TO
PURCHASE DEBT SECURITIES
FMC Corporation, a Delaware corporation (the "Company"), may from time to
time offer in one or more series (i) shares of Common Stock, $.10 par value per
share ("Common Stock"), (ii) whole or fractional shares of Preferred Stock, no
par value (collectively, "Preferred Stock"), (iii) Preferred Stock represented
by depository shares ("Depository Shares"), (iv) unsecured debt securities
("Debt Securities"), which may be senior debt securities ("Senior Debt
Securities") or subordinated debt securities ("Subordinated Debt Securities"),
(v) warrants to purchase Common Stock ("Common Stock Warrants"), (vi) warrants
to purchase Preferred Stock ("Preferred Stock Warrants"), and (vii) warrants to
purchase Debt Securities ("Debt Warrants"), with an aggregate public offering
price of up to $500,000,000, on terms to be determined at the time or times of
offering. The Common Stock, Preferred Stock, Depository Shares, Debt
Securities, Common Stock Warrants, Preferred Stock Warrants and Debt Warrants
(collectively referred to herein as the "Offered Securities") may be offered,
separately or together, in separate classes or series, in amounts, at prices
and on terms to be set forth in one or more supplements to this Prospectus
(each, a "Prospectus Supplement").
All specific terms of the offering and sale of the Offered Securities in
respect of which this Prospectus is being delivered will be set forth in the
applicable Prospectus Supplement and will include, when applicable: (i) in the
case of Common Stock, any public offering price and the aggregate number of
shares offered; (ii) in the case of Preferred Stock, the specific class,
series, title and stated value, any dividend, liquidation, redemption,
conversion, voting and other rights, any dividend payment dates, any sinking
fund provisions, the aggregate number of shares offered and any public offering
price; (iii) in the case of Depository Shares, the aggregate number of shares
offered, the shares of whole or fractional Preferred Stock represented by each
such Depository Share and any public offering price; (iv) in the case of Debt
Securities, the specific title, aggregate principal amount, ranking as Senior
Debt Securities or as Subordinated Debt Securities, currency, form (which may
be registered or bearer or certificated or global), authorized denominations,
maturity, rate (or manner of calculation thereof) and time of payment of
interest, if any, terms for redemption at the option of the Company or
repayment at the option of the holder thereof, terms for sinking fund payments,
terms for conversion into Common Stock or Preferred Stock and any public
offering price; (v) in the case of Common Stock Warrants, the duration,
offering price, exercise price and detachability features; (vi) in the case of
Preferred Stock Warrants, description of the Preferred Stock for which each
warrant will be exercisable and the duration, offering price, exercise price
and detachability features; and (vii) in the case of Debt Warrants, description
of the Debt Securities for which each warrant will be exercisable and the
duration, offering price, exercise price and detachability features.
The applicable Prospectus Supplement will also contain information, when
applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered
Securities covered by that Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company, or to or through underwriters or dealers. If
any agents or underwriters are involved in the sale of any of the Offered
Securities, their names and any applicable purchase price, fee, commission or
discount arrangement between or among them will be set forth in or will be
calculable from the information set forth in the applicable Prospectus
Supplement. No Offered Securities may be sold without delivery of the
applicable Prospectus Supplement describing the method and terms of the
offering of those Offered Securities. See "Plan of Distribution" for possible
indemnification arrangements with underwriters, dealers and 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 the Offered Securities
unless accompanied by a Prospectus Supplement.
-----------
September , 1995
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR AN APPLICABLE PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER,
DEALER OR AGENT. THIS PROSPECTUS AND ANY APPLICABLE PROSPECTUS SUPPLEMENT DO
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE
HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
IN CONNECTION WITH THIS OFFERING, UNDERWRITERS, IF ANY, MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE
OFFERED SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE,
IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZATION, IF COMMENCED,
MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at Seven
World Trade Center, 13th Floor, New York, New York 10048 and Citicorp Center,
Suite 1400, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
material can be obtained by mail from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. In addition, reports, proxy statements and other information concerning
the Company may be inspected and copied at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005, the Chicago Stock
Exchange, 440 South LaSalle Street, Chicago, Illinois 60605, and the Pacific
Stock Exchange, Inc., 301 Pine Street, San Francisco, California 94104 or 618
South Spring Street, Los Angeles, California 90014.
The Company has filed with the Commission on September 7, 1995 a Registration
Statement on Form S-3 under the Securities Act of 1933, as amended (the
"Securities Act"), which relates to the Offered Securities (the "Registration
Statement"). This Prospectus does not contain all of the information set forth
in the Registration Statement and the exhibits and schedules thereto as
permitted by the rules and regulations of the Commission. For information with
respect to the Company and the Offered Securities, reference is hereby made to
such Registration Statement, exhibits and schedules. The Registration Statement
may be inspected without charge by anyone at the office of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, and copies of all or any part
thereof may be obtained from the Commission upon payment of the prescribed
fees. Statements contained in this Prospectus as to the contents of any
contract or other document referred to are not necessarily complete, and in
each instance reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in all respects by such reference.
2
<PAGE>
DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed with the Commission (File No. 1-2376) are
incorporated herein by reference:
(i) the Company's Annual Report on Form 10-K for the year ended December
31, 1994;
(ii) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995 and June 30, 1995; and
(iii) the Company's Current Reports on Form 8-K dated February 6, 1995,
April 4, 1995 and September 1, 1995.
A description of the Common Stock is incorporated by reference to Item 1 of the
Company's Registration Statement on Form 8-A dated May 12, 1986. A description
of the Company's Preferred Stock Purchase Rights is incorporated by reference
to Item 1 of the Company's Registration Statement on Form 8-A dated March 6,
1986, as amended.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Offered Securities shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein (or in the applicable Prospectus
Supplement) or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide, without charge to any person to whom a copy of this
Prospectus is delivered, upon the written or oral request of such person, a
copy of any document incorporated by reference herein other than exhibits to
such documents unless such exhibits are specifically incorporated by reference
in such document. Requests should be directed to Robert L. Day, Secretary, FMC
Corporation, 200 East Randolph Drive, Chicago, Illinois 60601 (telephone: (312)
861-6000).
3
<PAGE>
THE COMPANY
The Company is one of the world's leading producers of chemicals and
machinery for industry, agriculture and government. The Company, incorporated
in 1928, operates on a worldwide basis in selected segments of five broad
markets: Performance Chemicals, Industrial Chemicals, Machinery and Equipment,
Defense Systems and Precious Metals. The Company operates 102 manufacturing
facilities and mines in 25 states and 21 countries. Performance Chemicals
develops, manufactures and markets proprietary specialty chemicals for the
agricultural, food and pharmaceutical industries. Industrial Chemicals
businesses manufacture a wide variety of chemicals including soda ash,
phosphates, hydrogen peroxide and lithium. Major customers include detergent,
glass and paper producers, as well as food processors and other chemical
companies. Machinery and Equipment businesses provide specialized machinery to
the food, petroleum, transportation and material handling industries. Defense
Systems develops, manufactures and supplies ground combat vehicles and naval
weapons systems to the armed forces of the United States and other governments.
In the first quarter of 1994 the Company and Harsco Corporation ("Harsco")
announced the establishment of a joint venture, United Defense, L.P., which was
a combination of certain assets and liabilities of the Company's Defense
Systems Group and Harsco's BMY Combat Systems Division and pursuant to which
the Company is the Managing General Partner with a 60% equity interest. The
Precious Metals business focuses on the exploration of precious metals in Latin
America and the western United States and is conducted by FMC Gold Company. The
Company owns 80% of FMC Gold Company's outstanding Common Stock.
The Company is a corporation organized under the laws of the State of
Delaware. As used hereunder, "FMC" or the "Company" refers to FMC Corporation
and its subsidiaries, unless otherwise indicated by the context. The Company's
principal executive offices are located at 200 East Randolph Drive, Chicago,
Illinois 60601 (telephone number: (312) 861-6000).
4
<PAGE>
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of the Offered Securities
for general corporate purposes, which may include the repayment of existing
indebtedness and the financing of capital expenditures and acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of the
Company for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED JUNE 30, YEAR ENDED DECEMBER 31,
------------------- -----------------------------------------------------------
1995 1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
4.5x 5.5x 4.4x 1.5(/1/)x 3.4x 2.8x 2.3x
</TABLE>
- --------
(/1/)The ratio of earnings to fixed charges for the year ended December 31,
1993 before restructuring and other charges was 3.3x.
For purposes of calculating this ratio, earnings consist of income from
continuing operations before income taxes and extraordinary items, plus
minority interests, less undistributed earnings (and plus losses) of
affiliates, plus interest expense and amortization of debt discount, fees and
expenses, plus amortization of capitalized interest, plus one-third of rentals.
Fixed charges consist of interest expense and amortization of debt discount,
fees and expenses, interest capitalized as part of fixed assets and interest
included in rental expense.
GENERAL DESCRIPTION OF THE OFFERED SECURITIES
The Company may offer under this Prospectus Common Stock, Preferred Stock,
Depository Shares, Debt Securities, Common Stock Warrants, Preferred Stock
Warrants, or Debt Warrants or any combination of the foregoing, either
individually or as units consisting of two or more Offered Securities. The
aggregate offering price of Offered Securities offered by the Company under
this Prospectus will not exceed $500,000,000. If Offered Securities are offered
as units, the terms of the units will be set forth in a Prospectus Supplement.
DESCRIPTION OF THE COMMON STOCK
GENERAL
Under the Company's Restated Certificate of Incorporation (the "Certificate
of Incorporation"), the Company is authorized to issue up to 60,000,000 shares
of Common Stock. As of June 30, 1995, there were 36,599,140 shares of Common
Stock issued and outstanding. In addition, up to 3,125,938 shares have been
reserved as of June 30, 1995 for issuance upon the exercise of options and
awards under the Company's incentive compensation plans and deferred stock plan
for non-employee directors. The shares of Common Stock are listed on the New
York Stock Exchange under the symbol "FMC". Harris Trust and Savings Bank,
Chicago, Illinois, is the transfer agent and registrar of the shares of Common
Stock.
The Common Stock is not redeemable, does not have any conversion rights and
is not subject to call. Holders of shares of Common Stock have no preemptive
rights to maintain their percentage of ownership in future offerings or sales
of stock of the Company. Holders of shares of Common Stock have one vote per
share in all elections of directors and on all other matters submitted to a
vote of stockholders of the Company. The holders of Common Stock are entitled
to receive dividends, if any, as and when declared from time to time by the
Board of Directors of the Company out of funds legally available therefor. Upon
liquidation, dissolution or winding up of the affairs of the Company, the
holders of Common Stock will be entitled to participate equally and ratably, in
proportion to the number of shares held, in the net assets of the Company
available for distribution to holders of Common Stock. The shares of Common
Stock currently outstanding
5
<PAGE>
are fully paid and nonassessable. The shares of Common Stock offered hereby,
upon issuance against full payment of the purchase price therefor, will be
fully paid and nonassessable.
CERTAIN CERTIFICATE OF INCORPORATION PROVISIONS
General Effect
The Company has adopted a number of provisions in its Certificate of
Incorporation that might discourage certain types of transactions that involve
an actual or threatened change of control of the Company. The provisions may
make it more difficult and time-consuming to change majority control of the
Board of Directors and thus reduce the vulnerability of the Company to an
unsolicited offer, particularly an offer that does not contemplate the
acquisition of all of the Company's outstanding shares.
These provisions are intended to encourage persons seeking to acquire control
of the Company to initiate such an acquisition through arm's-length
negotiations with the Company's management and Board of Directors.
Additionally, such provisions provide management with the time and information
necessary to evaluate a takeover proposal and to study alternative proposals.
Nonetheless, the provisions could have the effect of discouraging a third party
from making a tender offer or otherwise attempting to obtain control of the
Company, even though such an attempt might be beneficial to the Company and its
stockholders.
Business Combination
The Certificate of Incorporation provides that significant asset sales,
dispositions of stock, liquidations, mergers and certain other business
combinations ("Business Combinations") involving the Company and persons
beneficially owning 10% or more of the voting power of the outstanding shares
of Common Stock (an "Interested Stockholder") must be approved by the holders
of at least 80% of the voting power of the Company's outstanding voting stock
("Voting Stock"). The Certificate of Incorporation requires the affirmative
vote of the holders of 80% or more of the outstanding Voting Stock to amend,
alter or repeal, or to adopt any provisions inconsistent with, such provisions.
Stockholders' Meetings
The Certificate of Incorporation provides that special meetings of the
stockholders may only be called pursuant to a resolution approved by a majority
of the Board of Directors. This limitation prevents a stockholder or group of
stockholders from forcing the Company to conduct a stockholders' meeting at any
time not sanctioned by the Board of Directors, regardless of the number of
shares of Common Stock held by such stockholder or group of stockholders.
No Action by Stockholder Consent
The Company's Certificate of Incorporation prohibits action that is required
or permitted to be taken at any annual or special meeting of stockholders of
the Company from being taken by the written consent of stockholders without a
meeting. This provision may be altered, amended or repealed only if the holders
of 80% or more of Voting Stock vote in favor of such action.
PREFERRED STOCK PURCHASE RIGHTS
The Company has adopted a preferred stock purchase rights plan and has
distributed preferred stock purchase rights (the "Rights") to holders of the
Company's Common Stock. The preferred stock purchase rights plan enables the
holder of such Rights to purchase, under certain circumstances, one one-
hundredth (1/100) of a share of Junior Participating Preferred Stock, Series A,
without par value (the "Series A Preferred Stock"), of the Company at a price
of $75 per one one-hundredth (1/100) of a share, subject to certain
adjustments. The Rights are intended to deter attempts to acquire the Company
on terms not approved by the Company's Board of Directors.
6
<PAGE>
DESCRIPTION OF THE PREFERRED STOCK
Under the Certificate of Incorporation, the Board of Directors of the Company
may direct the issuance of up to 5,000,000 shares of Preferred Stock in one or
more series and with rights, preferences, privileges and restrictions,
including dividend rights, voting rights, conversion rights, terms of
redemption and liquidation preferences, that may be fixed or designated by the
Board of Directors pursuant to a certificate of designation without any further
vote or action by the Company's stockholders. As of June 30, 1995 the Board of
Directors had designated 400,000 shares of the Preferred Stock as Series A
Preferred Stock for possible issuance in connection with the Rights. The
issuance of Preferred Stock may have the effect of delaying, deferring or
preventing a change in control of the Company. Preferred Stock, upon issuance
against full payment of the purchase price therefor, will be fully paid and
nonassessable. The specific terms of a particular series of Preferred Stock
will be described in the Prospectus Supplement relating to that series. The
description of Preferred Stock set forth below and the description of the terms
of a particular series of Preferred Stock set forth in the related Prospectus
Supplement do not purport to be complete and are qualified in their entirety by
reference to the certificate of designation relating to that series. The
related Prospectus Supplement will contain a description of certain United
States federal income tax consequences relating to the purchase and ownership
of the series of Preferred Stock described in such Prospectus Supplement.
As of June 30, 1995 no shares of Preferred Stock were issued or outstanding.
The rights, preferences, privileges and restrictions of the Preferred Stock
of each series will be fixed by the certificate of designation relating to such
series. A Prospectus Supplement, relating to each series, will specify the
terms of the Preferred Stock as follows:
(a) The maximum number of shares to constitute the series and the
distinctive designation thereof;
(b) The annual dividend rate, if any, on shares of the series, whether
such rate is fixed or variable or both, the date or dates from which
dividends will begin to accrue or accumulate and whether dividends will be
cumulative;
(c) The price at and the terms and conditions on which the shares of the
series may be redeemed, including the time during which shares of the
series may be redeemed and any accumulated dividends thereon that the
holders of shares of the series shall be entitled to receive upon the
redemption thereof;
(d) The liquidation preference, if any, and any accumulated dividends
thereon, that the holders of shares of the series shall be entitled to
receive upon the liquidation, dissolution or winding up of the affairs of
the Company;
(e) Whether or not the shares of the series will be subject to operation
of a retirement or sinking fund, and, if so, the extent and manner in which
any such fund shall be applied to the purchase or redemption of the shares
of the series for retirement or for other corporate purposes, and the terms
and provisions relating to the operation of such fund;
(f) The terms and conditions, if any, on which the shares of the series
shall be convertible into, or exchangeable for, shares of any other class
or classes of capital stock of the Company or a third party or of any other
series of the same class, including the price or prices or the rate or
rates of conversion or exchange and the method, if any, of adjusting the
same and whether such conversion is mandatory or optional;
(g) The stated value of the shares of such series;
(h) The voting rights, if any, of the shares of the series; and
(i) Any or all other preferences and relative, participating, optional or
other special rights or qualifications, limitations or restrictions
thereof.
7
<PAGE>
In the event of any voluntary liquidation, dissolution or winding up of the
affairs of the Company, the holders of any series of any class of Preferred
Stock shall be entitled to receive in full out of the assets of the Company,
including its capital, before any amount shall be paid or distributed among the
holders of the Common Stock or any other shares ranking junior to such series,
the amounts fixed by the Board of Directors with respect to such series and set
forth in the applicable Prospectus Supplement plus an amount equal to all
dividends accrued and unpaid thereon to the date of payment of the amount due
pursuant to such liquidation, dissolution or winding up the affairs of the
Company. After payment to the holders of the Preferred Stock of the full
preferential amounts to which they are entitled, the holders of Preferred
Stock, as such, shall have no right or claim to any of the remaining assets of
the Company.
If liquidating distributions shall have been made in full to all holders of
Preferred Stock, the remaining assets of the Company shall be distributed among
the holders of any other classes or series of capital stock ranking junior to
the Preferred Stock upon liquidation, dissolution or winding up, according to
their respective rights and preferences and in each case according to their
respective numbers of shares. The merger or consolidation of the Company into
or with any other corporation, or the sale, lease or conveyance of all or
substantially all of the assets of the Company, shall not constitute a
dissolution, liquidation or winding up of the Company.
DESCRIPTION OF DEPOSITORY SHARES
GENERAL
The Company may offer receipts ("Depository Receipts") for Depository Shares,
each of which will represent a fractional interest in a share of a particular
series of a class of Preferred Stock, as specified in the applicable Prospectus
Supplement. Preferred Stock of each series of each class represented by
Depository Shares will be deposited under a separate Deposit Agreement (each, a
"Deposit Agreement") among the Company, the depository named therein (such
depository or its successor, the "Preferred Stock Depository") and the holders
from time to time of the Depository Receipts. Subject to the terms of the
Deposit Agreement, each owner of a Depository Receipt will be entitled, in
proportion to the fractional interest of a share of the particular series of a
class of Preferred Stock represented by the Depository Shares evidenced by such
Depository Receipt, to all the rights and preferences of the Preferred Stock
represented by such Depository Shares (including dividend, voting, conversion,
redemption and liquidation rights).
The Depository Shares will be evidenced by Depository Receipts issued
pursuant to the applicable Deposit Agreement. Immediately following the
issuance and delivery of the Preferred Stock by the Company to the Preferred
Stock Depository, the Company will cause the Preferred Stock Depository to
issue, on behalf of the Company, the Depository Receipts. Copies of the
applicable form of Deposit Agreement and Depository Receipt may be obtained
from the Company upon request.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depository will distribute all cash dividends or other
cash distributions received in respect of the Preferred Stock to the record
holders of the Depository Receipts evidencing the related Depository Shares in
proportion to the number of such Depository Receipts owned by such holder,
subject to certain obligations of holders to file proofs, certificates and
other information and to pay certain charges and expenses to the Preferred
Stock Depository.
In the event of a distribution other than in cash, the Preferred Stock
Depository will distribute property received by it to the record holders of
Depository Receipts entitled thereto, subject to certain obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to the Preferred Stock Depository, unless the Preferred Stock
Depository determines that it is not feasible to make such distribution, in
which case the Preferred Stock Depository may, with the approval of the
Company, sell such property and distribute the net proceeds from such sale to
such holders.
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WITHDRAWAL OF SHARES
Upon surrender of the Depository Receipts at the corporate trust office of
the Preferred Stock Depository (unless the related Depository Shares have
previously been called for redemption), the holders thereof will be entitled to
delivery at such office, to or upon such holder's order, of the number of whole
shares of Preferred Stock and any money or other property represented by the
Depository Shares evidenced by such Depository Receipts. Holders of Depository
Receipts will be entitled to receive whole shares of the related Preferred
Stock on the basis of the proportion of Preferred Stock represented by each
Depository Share as specified in the applicable Prospectus Supplement, but
holders of such Preferred Stock will not thereafter be entitled to receive
Depository Shares therefor. If the Depository Receipts delivered by the holder
evidence a number of Depository Shares in excess of the number of Depository
Shares representing the number of shares of Preferred Stock to be withdrawn,
the Preferred Stock Depository will deliver to such holder at the same time a
new Depository Receipt evidencing such excess number of Depository Shares.
REDEMPTION OF DEPOSITORY SHARES
Whenever the Company redeems Preferred Stock held by the Preferred Stock
Depository, the Preferred Stock Depository will redeem as of the same
redemption date the number of Depository Shares representing the Preferred
Stock so redeemed, provided the Company shall have paid in full to the
Preferred Stock Depository the redemption price of the Preferred Stock to be
redeemed plus an amount equal to any accrued and unpaid dividends (except, with
respect to noncumulative shares of Preferred Stock, dividends for the current
dividend period only) thereon to the date fixed for redemption. The redemption
price per Depository Share will be equal to the redemption price and any other
amounts per share payable with respect to the Preferred Stock. If less than all
the Depository Shares are to be redeemed, the Depository Shares to be redeemed
will be selected by the Preferred Stock Depository by lot.
After the date fixed for redemption, the Depository Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of the Depository Receipts evidencing the Depository Shares so called
for redemption will cease, except the right to receive any moneys payable upon
such redemption and any money or other property to which the holders of such
Depository Receipts were entitled upon such redemption upon surrender thereof
to the Preferred Stock Depository.
VOTING OF THE UNDERLYING PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Preferred Stock Depository will mail the
information contained in such notice of meeting to the record holders of the
Depository Receipts evidencing the Depository Shares which represent such
Preferred Stock. Each record holder of Depository Receipts evidencing
Depository Shares on the record date (which will be the same date as the record
date for the Preferred Stock) will be entitled to instruct the Preferred Stock
Depository as to the exercise of the voting rights pertaining to the amount of
Preferred Stock represented by such holder's Depository Shares. The Preferred
Stock Depository will vote the amount of Preferred Stock represented by such
Depository Shares in accordance with such instructions, and the Company will
agree to take all reasonable action which may be deemed necessary by the
Preferred Stock Depository in order to enable the Preferred Stock Depository to
do so. The Preferred Stock Depository will abstain from voting the amount of
Preferred Stock represented by such Depository Shares to the extent it does not
receive specific instructions from the holders of Depository Receipts
evidencing such Depository Shares.
LIQUIDATION PREFERENCE
In the event of liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, each holder of a Depository Receipt will be
entitled to the fraction of the liquidation preference accorded each share of
Preferred Stock represented by the Depository Share evidenced by such
Depository Receipt, as set forth in the applicable Prospectus Supplement.
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CONVERSION OF PREFERRED STOCK
The Depository Shares, as such, are not convertible into Common Stock or any
securities or property of the Company. Nevertheless, if so specified in the
applicable Prospectus Supplement relating to an offering of Depository Shares,
the Depository Receipts may be surrendered by holders thereof to the Preferred
Stock Depository with written instructions to the Preferred Stock Depository to
instruct the Company to cause conversion of the Preferred Stock represented by
the Depository Shares evidenced by such Depository Receipts into whole shares
of Common Stock, other Preferred Stock of the Company or other shares of
capital stock, and the Company has agreed that upon receipt of such
instructions and any amounts payable in respect thereof, it will cause the
conversion thereof utilizing the same procedures as those provided for delivery
of Preferred Stock to effect such conversion. If the Depository Shares
evidenced by a Depository Receipt are to be converted in part only, one or more
new Depository Receipts will be issued for any Depository Shares not to be
converted. No fractional shares of Common Stock will be issued upon conversion,
and if such conversion will result in a fractional share being issued, an
amount will be paid in cash by the Company equal to the value of the fractional
interest based upon the closing price of the Common Stock on the last business
day prior to the conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depository Receipt evidencing the Depository Shares which
represent the Preferred Stock and any provision of the Deposit Agreement may at
any time be amended by agreement between the Company and the Preferred Stock
Depository. However, any amendment that materially and adversely alters the
rights of the holders of Depository Receipts will not be effective unless such
amendment has been approved by the existing holders of at least a majority of
the Depository Shares evidenced by the Depository Receipts then outstanding.
The Deposit Agreement may be terminated by the Company upon not less than 30
days' prior written notice to the Preferred Stock Depository if a majority of
each class of Depository Shares affected by such termination consents to such
termination, whereupon the Preferred Stock Depository shall deliver or make
available to each holder of Depository Receipts, upon surrender of the
Depository Receipts held by such holder, such number of whole or fractional
shares of Preferred Stock as are represented by the Depository Shares evidenced
by such Depository Receipts. In addition, the Deposit Agreement will
automatically terminate if (i) all outstanding Depository Shares shall have
been redeemed, (ii) there shall have been a final distribution in respect of
the related Preferred Stock in connection with any liquidation, dissolution or
winding up of the Company and such distribution shall have been distributed to
the holders of Depository Receipts evidencing the Depository Shares
representing such Preferred Stock or (iii) each related share of Preferred
Stock shall have been converted into capital stock of the Company not so
represented by Depository Shares.
CHARGES OF PREFERRED STOCK DEPOSITORY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the Deposit Agreement. In addition, the
Company will pay the fees and expenses of the Preferred Stock Depository in
connection with the performance of its duties under the Deposit Agreement.
However, holders of the Depository Receipts will pay the fees and expenses of
the Preferred Stock Depository for any duties requested by such holders to be
performed which are outside of those expressly provided for in the Deposit
Agreement.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITORY
The Preferred Stock Depository may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depository, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depository. A
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successor Preferred Stock Depository must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depository will forward to holders of Depository Receipts
any reports and communications from the Company that are received by the
Preferred Stock Depository with respect to the related Preferred Stock.
Neither the Preferred Stock Depository nor the Company will be liable if it
is prevented from or delayed in, by law or any circumstances beyond its
control, performing its obligations under the Deposit Agreement. The
obligations of the Company and the Preferred Stock Depository under the Deposit
Agreement will be limited to performing their duties thereunder in good faith
and without gross negligence or willful misconduct, and the Company and the
Preferred Stock Depository will not be obligated to prosecute or defend any
legal proceeding in respect of any Depository Receipts, Depository Shares or
Preferred Stock represented thereby unless satisfactory indemnity is furnished.
The Company and the Preferred Stock Depository may rely on written advice of
counsel or accountants, or information provided by persons presenting Preferred
Stock represented thereby for deposit, holders of Depository Receipts or other
persons believed to be competent to give such information, and on documents
believed to be genuine and signed by a proper party.
If the Preferred Stock Depository shall receive conflicting claims, requests
or instructions from any holders of Depository Receipts, on the one hand, and
the Company, on the other hand, the Preferred Stock Depository shall be
entitled to act on such claims, requests or instructions received from the
Company.
DESCRIPTION OF THE DEBT SECURITIES
The Senior Debt Securities will be issued under an Indenture, as amended or
supplemented from time to time (the "Senior Indenture"), between the Company
and Harris Trust and Savings Bank, as trustee (the "Trustee"). The Subordinated
Debt Securities will be issued under an Indenture, as amended or supplemented
from time to time (the "Subordinated Indenture"), between the Company and the
Trustee. The Senior Indenture and the Subordinated Indenture are sometimes
referred to herein collectively as the "Indentures" and each individually as an
"Indenture".
The forms of the Indentures have been filed as exhibits to the Registration
Statement of which this Prospectus is a part and are available for inspection
at the corporate trust office of the Trustee at 111 West Monroe Street,
Chicago, Illinois 60603. The Indentures are subject to, and are governed by,
the Trust Indenture Act of 1939, as amended. The statements made hereunder
relating to the Indentures and the Debt Securities to be issued hereunder are
summaries of certain provisions thereof and do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all
provisions of the Indentures and such Debt Securities. All section references
appearing in this section "Description of Debt Securities" are to sections of
the applicable Indenture, and capitalized terms used but not defined herein
shall have the respective meanings set forth in the applicable Indenture.
GENERAL
The Indentures do not limit the amount of Debt Securities that can be issued
thereunder and provide that Debt Securities of any series may be issued
thereunder up to the aggregate principal amount which may be authorized from
time to time by the Company. The Indentures do not limit the amount of other
indebtedness or securities, other than certain secured indebtedness as
described below which is limited by the Senior Indenture, that may be issued by
the Company or its subsidiaries.
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The Debt Securities will be direct, unsecured obligations of the Company and
will constitute Senior Debt Securities and/or Subordinated Debt Securities.
Creditors of the Company's subsidiaries are entitled to a claim on the assets
of such subsidiaries. Consequently, in the event of a liquidation or
reorganization of any subsidiary, creditors of the subsidiary are likely to be
paid in full before any distribution is made to the Company and holders of Debt
Securities, except to the extent that the Company is itself recognized as a
creditor of such subsidiary, in which case the claims of the Company would
still be subordinate to any security interests in the assets of such subsidiary
and any indebtedness of such subsidiary senior to that held by the Company.
Reference is made to the Prospectus Supplement for the following and other
possible terms of each series of the Debt Securities in respect of which this
Prospectus is being delivered: (i) the title of the Debt Securities; (ii) any
limit upon the aggregate principal amount of the Debt Securities; (iii) if
other than 100% of the principal amount, the percentage of their principal
amount at which the Debt Securities will be offered; (iv) the date or dates on
which the principal of the Debt Securities will be payable (or method of
determination thereof); (v) the rate or rates (or method of determination
thereof) at which the Debt Securities will bear interest, if any, the date or
dates from which any such interest will accrue and on which such interest will
be payable, and the record dates for the determination of the holders to whom
interest is payable; (vi) if other than as set forth herein, the place or
places where the principal of and interest, if any, on the Debt Securities will
be payable; (vii) the price or prices at which, the period or periods within
which and the terms and conditions upon which Debt Securities may be redeemed,
in whole or in part, at the option of the Company; (viii) if other than the
principal amount thereof, the portion of the principal amount of the Debt
Securities payable upon declaration of acceleration of the maturity thereof;
(ix) the obligation, if any, of the Company to redeem, repurchase or repay Debt
Securities, whether pursuant to any sinking fund or analogous provisions or
pursuant to other provisions set forth therein or at the option of a Holder
thereof; (x) whether the Debt Securities will be represented in whole or in
part by one or more global notes registered in the names of a depository or its
nominee; (xi) any conversion or exchange provisions and whether such conversion
or exchange is optional or mandatory; (xii) the ranking of such Debt Securities
as Senior Debt Securities or Subordinated Debt Securities; and (xiii) any other
terms or conditions not inconsistent with the provisions of the Indenture under
which the Debt Securities will be issued. (Section 2.3) "Principal" when used
herein includes, when appropriate, the premium, if any, on the Debt Securities.
Unless otherwise provided in the Prospectus Supplement relating to any Debt
Securities, principal and interest, if any, will be payable, and the Debt
Securities will be transferable, at the office or offices or agency maintained
by the Company for such purposes, provided that payment of interest on the Debt
Securities will be paid at such place of payment by check mailed to the persons
entitled thereto at the addresses of such persons appearing on the Security
register. Interest on the Debt Securities will be payable on any interest
payment date to the persons in whose name the Debt Securities are registered at
the close of business on the record date with respect to such interest payment
date.
The Debt Securities may be issued only in fully registered form in minimum
denominations of $1,000 and any integral multiple thereof. Additionally, the
Debt Securities may be represented in whole or in part by one or more global
notes registered in the name of a depository or its nominee and, if so
represented, interests in such global note will be shown on, and transfers
thereof will be effected only through, records maintained by the designated
depository and its participants.
The Debt Securities may be exchanged for an equal aggregate principal amount
of Debt Securities of the same series and date of maturity in such authorized
denominations as may be requested upon surrender of the Debt Securities at an
agency of the Company maintained for such purpose and upon fulfillment of all
other requirements of such agent. No service charge will be made for any
transfer or exchange of the Debt Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. (Section 2.8)
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The Indentures require the annual filing by the Company with the Trustee of a
certificate as to compliance with certain covenants contained in the
Indentures. (Section 3.4)
The Company will comply with Section 14(e) under the Exchange Act, to the
extent applicable, and any other tender offer rules under the Exchange Act
which may then be applicable, in connection with any obligation of the Company
to purchase Debt Securities at the option of the holders thereof. Any such
obligation applicable to a series of Debt Securities will be described in the
Prospectus Supplement relating thereto.
Unless otherwise described in a Prospectus Supplement relating to any Debt
Securities, there are no covenants or provisions contained in the Indentures
which may afford the holders of Debt Securities protection in the event of a
highly leveraged transaction involving the Company.
CONVERSION AND EXCHANGE
The terms, if any, on which Debt Securities of any series are convertible
into or exchangeable for Common Stock or Preferred Stock, property or cash, or
a combination of any of the foregoing, will be set forth in the Prospectus
Supplement relating thereto. Such terms may include provisions for conversion
or exchange, either mandatory, at the option of the holder, or at the option of
the Company, in which the number of shares of Common Stock or Preferred Stock
to be received by the holders of the Debt Securities would be calculated
according to the factors and at such time as set forth in the related
Prospectus Supplement.
COVENANTS APPLICABLE TO SENIOR DEBT SECURITIES
Limitations on Liens
The Senior Indenture provides that, so long as any of the Senior Debt
Securities of a series remain outstanding, the Company will not, nor will it
permit any Restricted Subsidiary (as hereinafter defined) to, secure
indebtedness for money borrowed ("Secured Debt") by placing a Lien (as
hereinafter defined) on any Principal Property (as hereinafter defined) now or
hereafter owned by the Company or any Restricted Subsidiary or on any shares of
stock or securing indebtedness for money borrowed of any Restricted Subsidiary
without equally and ratably securing the Debt Securities of such series, unless
(i) the aggregate principal amount of such Secured Debt then outstanding plus
(ii) all Attributable Debt (as hereinafter defined) of the Company and its
Restricted Subsidiaries in respect of sale and leaseback transactions described
below covering Principal Properties (other than sale and leaseback transactions
under (b) of the following paragraph) does not exceed an amount equal to 10% of
Consolidated Net Tangible Assets (as hereinafter defined). This restriction
will not apply to, and there shall be excluded in computing such Secured Debt
for purposes of this restriction, certain permitted Liens, including (a) with
respect to each series of Senior Debt Securities, Liens existing as of the date
of the issuance of Senior Debt Securities of such series; (b) Liens on property
or assets of, or any shares of stock or securing indebtedness for money
borrowed of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary; (c) Liens on property or assets or shares of stock or
securing indebtedness for money borrowed existing at the time of acquisition
(including acquisition through merger or consolidation) and certain Liens to
secure indebtedness incurred prior to, at the time of or within 120 days after
the later of the acquisition of, or the completion of the construction of and
commencement of operation of, any such property, for the purpose of financing
all or any part of the purchase price or construction cost thereof; (d) Liens
to secure certain development, operation, construction, alteration, repair or
improvement costs; (e) Liens in favor of, or which secure indebtedness owing
to, the Company or a Restricted Subsidiary; (f) Liens in connection with
government contracts, including the assignment of moneys due or to come due
thereon; (g) certain Liens in connection with legal proceedings to the extent
such proceedings are being contested in good faith; (h) certain Liens arising
in the ordinary course of business and not in connection with the borrowing of
money such as mechanics', materialmens', carriers'
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or other similar Liens; (i) Liens on property securing obligations issued by a
domestic governmental issuer to finance the cost of acquisition or construction
of such property; and (j) extensions, substitutions, replacements or renewals
of the foregoing. (Section 3.5)
Limitations on Sale and Leaseback Transactions
The Senior Indenture provides that, so long as any of the Senior Debt
Securities of a series remain outstanding, the Company will not, nor will it
permit any Restricted Subsidiary to, enter into any sale and leaseback
transaction (except a lease for a period not exceeding three years) covering
any Principal Property which was or is owned by the Company or a Restricted
Subsidiary and which has been or is to be sold or transferred more than 120
days after such property has been owned by the Company or such Restricted
Subsidiary and completion of construction and commencement of full operation
thereof, unless (a) the Attributable Debt in respect thereto and all other sale
and leaseback transactions entered into after the date of the first issuance of
Senior Debt Securities of such series (other than those the proceeds of which
are applied to reduce indebtedness or acquire additional property under (b)
following), plus the aggregate principal amount of then outstanding Secured
Debt not otherwise permitted or excepted without equally and ratably securing
the Senior Debt Securities does not exceed 10% of Consolidated Net Tangible
Assets; or (b) an amount equal to the value of the Principal Property sold and
leased back is applied within 120 days after the sale or transfer to (x) the
voluntary retirement of Funded Debt (as hereinafter defined), including Senior
Debt Securities, or (y) the acquisition of properties, facilities or equipment
used for general operating purposes for the Company or any Restricted
Subsidiary. (Section 3.6)
Certain Definitions
The term "Subsidiary" is defined to mean (i) a corporation, a majority of
whose capital stock with voting power, under ordinary circumstances, to elect
directors is, at the date of determination, directly or indirectly owned by the
Company, by one or more Subsidiaries of the Company or by the Company and one
or more Subsidiaries of the Company, (ii) a partnership in which the Company or
a Subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a Subsidiary of the Company or the Company
and one or more Subsidiaries of the Company, directly or indirectly, at the
date of determination, has (x) at least a majority ownership interest or (y)
the power to elect or direct the election of a majority of the directors or
other governing body of such person.
The term "Restricted Subsidiary" is defined to mean any Subsidiary (other
than FMC Gold Company) (i) substantially all the property of which is located
within the continental United States of America or Canada and (ii) which owns
or leases a Principal Property.
The term "Principal Property" is defined to mean any manufacturing or
processing plant or facility (other than any pollution control facility) or any
mineral producing property which is located within the continental United
States of America and is owned by the Company or any Subsidiary, whether owned
at or acquired after the date of the applicable Indenture, the gross book value
on the books of the Company or such Subsidiary (without deduction of any
depreciation reserve) of which on the date as of which the determination is
being made exceeds 1% of Consolidated Net Tangible Assets, other than any such
property, plant or facility, or any portion thereof, which in the opinion of
the Board of Directors is not of material importance to the total business
conducted by the Company and its Restricted Subsidiaries as an entirety or
which is financed with certain tax exempt securities.
The term "Attributable Debt", in respect of the sale and leaseback
transactions described above, is defined to mean the amount determined by
multiplying the greater, at the time such transaction is entered into, of (i)
the fair value of the property, plant or facility subject to such arrangement
(as determined by the Company); or (ii) the net proceeds of the sale of such
property, plant or facility to the lender or investor, by a fraction of which
the numerator shall be the unexpired initial term of the lease of such real
property as of the
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date of determination of such computation and of which the denominator shall be
the full initial term of such lease. Sale and leasebacks with respect to
facilities financed with certain tax exempt securities are excepted from the
definition.
The term "Consolidated Net Tangible Assets" is defined to mean the aggregate
amount of assets (less applicable reserves and other properly deductible items)
after deducting therefrom (a) all current liabilities (excluding any thereof
constituting Funded Debt by reason of being extendible or renewable); and (b)
all goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all as set forth on the books and records
of the Company and its consolidated subsidiaries and computed in accordance
with generally accepted accounting principles.
The term "Funded Debt" is defined to mean all indebtedness whether or not
evidenced by a bond, debenture, note or similar instrument or agreement, for
the repayment of money borrowed, having a maturity of more than 12 months from
the date of its creation or having a maturity of less than 12 months from the
date of its creation but by its terms being renewable or extendible beyond 12
months from such date at the option of the borrower. For the purpose of
determining "Funded Debt" of any corporation, there shall be excluded any
particular indebtedness if, on or prior to the maturity thereof, there shall
have been deposited with the proper depository in trust the necessary funds for
the payment, redemption or satisfaction of such indebtedness. (Section 1.1)
The term "Lien" is defined to mean any pledge, mortgage or other lien
(including lease purchase, installment purchase and other title retention
financing arrangements) on or in respect of any Principal Property owned by the
Company or any Restricted Subsidiary, or on any shares of stock or indebtedness
for money borrowed of any Restricted Subsidiary. (Section 3.5)
EVENTS OF DEFAULT
An Event of Default with respect to the Debt Securities of any series is
defined in the Indentures as: (i) default in the payment of any installment of
interest upon any of the Debt Securities of such series as and when the same
shall become due and payable, and continuance of such default for a period of
30 days; (ii) default in the payment of all or any part of the principal of any
of the Debt Securities of such series as and when the same shall become due and
payable either at maturity, upon any redemption, by declaration or otherwise;
(iii) default in the performance, or breach, of any other covenant or warranty
of the Company contained in the Debt Securities of such series or set forth in
the applicable Indenture (other than a covenant or warranty included in the
applicable Indenture solely for the benefit of a series of Debt Securities
other than such series) and continuance of such default or breach for a period
of 90 days after due notice by the Trustee or by the holders of at least 25% in
principal amount of the outstanding securities of that series; or (iv) certain
events of bankruptcy, insolvency or reorganization of the Company. (Section
5.1) Additional Events of Default may be added for the benefit of holders of
certain series of Debt Securities which, if added, will be described in the
Prospectus Supplement relating to such Debt Securities. The Indentures provide
that the Trustee shall notify the holders of Debt Securities of each series of
any continuing default known to the Trustee which has occurred with respect to
that series within 90 days after the occurrence thereof. The Indentures provide
that notwithstanding the foregoing, except in the case of default in the
payment of the principal of, or interest, if any, on any of the Debt Securities
of such series, the Trustee may withhold such notice if the Trustee in good
faith determines that the withholding of such notice is in the interests of the
holders of Debt Securities of such series. (Section 6.5)
The Indentures provide that if an Event of Default with respect to any series
of Debt Securities shall have occurred and be continuing, either the Trustee or
the holders of not less than 25% in aggregate principal amount of Debt
Securities of that series then outstanding may declare the principal amount of
all Debt Securities of that series to be due and payable immediately, but upon
certain conditions such declaration may be annulled. (Section 5.1) Any past
defaults and the consequences thereof (except a default in the payment of
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principal of or interest, if any, on Debt Securities of that series) may be
waived by the holders of a majority in principal amount of the Debt Securities
of that series then outstanding. (Section 5.9) The Senior Indenture also
permits the Company to omit compliance with certain covenants in such
Indentures with respect to Senior Debt Securities of any series upon waiver by
the holders of a majority in principal amount of the Senior Debt Securities of
such series then outstanding. (Section 3.7)
Subject to the provisions of the Indentures relating to the duties of the
Trustee, in case an Event of Default with respect to any series of Debt
Securities shall occur and be continuing, the Trustee shall not be under any
obligation to exercise any of the trusts or powers vested in it by the
Indentures at the request or direction of any of the holders of that series,
unless such holders shall have offered to such Trustee reasonable security or
indemnity. (Sections 6.1 and 6.2) The holders of a majority in aggregate
principal amount of the Debt Securities of each series affected and then
outstanding shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee under the
applicable Indenture or exercising any trust or power conferred on the Trustee
with respect to the Debt Securities of that series; provided that the Trustee
may refuse to follow any direction which is in conflict with any law or such
Indenture and subject to certain other limitations. (Section 5.8)
No holder of any Debt Security of any series will have any right by virtue or
by availing of any provision of the Indentures to institute any proceeding at
law or in equity or in bankruptcy or otherwise upon or under or with respect to
the Indentures or for any remedy thereunder, unless such holder shall have
previously given the Trustee written notice of an Event of Default with respect
to Debt Securities of that series and unless the holders of at least 25% in
aggregate principal amount of the outstanding Debt Securities of that series
shall also have made written request, and offered reasonable indemnity, to the
Trustee to institute such proceeding as trustee and the Trustee shall have
failed to institute such proceeding within 60 days after its receipt of such
request, 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. (Section 5.5) However, the right of
a holder of any Debt Security to receive payment of the principal of and
interest, if any, on such Debt Security on or after the due dates expressed in
such Debt Security, or to institute suit for the enforcement of any such
payment on or after such dates, shall not be impaired or affected without the
consent of such holder. (Section 5.6)
MERGER
Each Indenture provides that the Company may consolidate with, or sell,
convey or lease all or substantially all of its assets to, or merge with or
into, any other corporation, if (i) either the Company is the continuing
corporation or the successor corporation is a domestic corporation and
expressly assumes the due and punctual payment of the principal of and interest
on all the Debt Securities outstanding under such Indenture according to their
tenor and the due and punctual performance and observance of all of the
covenants and conditions of such Indenture to be performed or observed by the
Company; and (ii) the Company or such successor corporation, as the case may
be, is not, immediately after such merger or consolidation, or such sale,
conveyance or lease, in material default in the performance or observance of
any such covenant or condition. (Section 9.1)
SATISFACTION AND DISCHARGE OF INDENTURES
The Indenture with respect to any series of Debt Securities (except for
certain specified surviving obligations including, among other things, the
Company's obligation to pay the principal of and interest on the Debt
Securities of such series) will be discharged and cancelled upon the
satisfaction of certain conditions, including the payment of all the Debt
Securities of such series or the deposit with the Trustee under such Indenture
of cash or appropriate Government Obligations or a combination thereof
sufficient for such payment or redemption in accordance with the applicable
Indenture and the terms of the Debt Securities of such series. (Section 10.1)
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MODIFICATION OF THE INDENTURES
The Indentures contain provisions permitting the Company and the Trustee
thereunder, with the consent of the holders of not less than a majority in
aggregate principal amount of the Debt Securities of each series at the time
outstanding under the applicable Indenture, to execute supplemental indentures
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, the applicable Indenture or any supplemental indenture with
respect to the Debt Securities of such series or modifying in any manner the
rights of the holders of the Debt Securities of such series; provided that no
such supplemental indenture may (i) extend the final maturity of any Debt
Security, or reduce the principal amount thereof, or reduce the rate or extend
the time of payment of any interest thereon, or reduce any amount payable on
redemption thereof, or impair or affect the right of any holder of Debt
Securities to institute suit for payment thereof or, if the Debt Securities
provide therefor, any right of repayment at the option of the holders of the
Debt Securities, without the consent of the holder of each Debt Security so
affected or (ii) reduce the aforesaid percentage of Debt Securities of such
series, the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all Debt
Securities of such series so affected. (Section 8.2) Additionally, in certain
prescribed instances, the Company and the Trustee may execute supplemental
indentures without the consent of the holders of Debt Securities. (Section 8.1)
DEFEASANCE AND COVENANT DEFEASANCE
The Indentures provide, if such provision is made applicable to the Debt
Securities of any series, that the Company may elect either (a) to terminate
(and be deemed to have satisfied) all its obligations with respect to such Debt
Securities (except for the obligations to register the transfer or exchange of
such Debt Securities, to replace mutilated, destroyed, lost or stolen Debt
Securities, to maintain an office or agency in respect of the Debt Securities,
to compensate and indemnify the Trustee and to punctually pay or cause to be
paid the principal of, and interest, if any, on all Debt Securities of such
series when due) ("defeasance"); or (b) in the case of the Senior Indenture, to
be released from its obligations with respect to Senior Debt Securities under
Sections 3.5 and 3.6 of the Senior Indenture (being the restrictions described
above under "Limitations on Liens" and "Limitations on Sale and Leaseback
Transactions") ("covenant defeasance"), upon the deposit with the Trustee, in
trust for such purpose, of money and/or Government Obligations which through
the payment of principal and interest in accordance with their terms will
provide money, in an amount sufficient (in the opinion of a nationally
recognized firm of independent public accountants) to pay the principal of and
premium and interest, if any, on the outstanding Debt Securities of such
series, and any mandatory sinking fund or analogous payments thereon, on the
scheduled due dates therefor. Such a trust may be established only if, among
other things, the Company has delivered to the Trustee an opinion of counsel
(as specified in the applicable Indenture) with regard to certain matters,
including an opinion to the effect that the Holders of such Debt Securities
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and discharge and will be subject to federal income tax
on the same amounts and in the same manner and at the same times as would have
been the case if such deposit and defeasance or covenant defeasance, as the
case may be, had not occurred. The Prospectus Supplement may further describe
these or other provisions, if any, permitting defeasance or covenant defeasance
with respect to the Debt Securities of any series. (Section 10.1)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The Senior Debt Securities will constitute part of the Senior Indebtedness
(as defined below) of the Company and will rank pari passu with all outstanding
senior debt. Except as set forth in the related Prospectus Supplement, the
Subordinated Debt Securities will be subordinated, in right of payment, to the
prior payment in full of the Senior Indebtedness (as defined below), including
the Senior Debt Securities, whether outstanding at the date of the Subordinated
Indenture or thereafter incurred, assumed or guaranteed. The term "Senior
Indebtedness" means (1) the principal of and premium, if any, and unpaid
interest on
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indebtedness for money borrowed, (2) purchase money and similar obligations,
(3) obligations under capital leases, (4) guarantees, assumptions or purchase
commitments relating to, or other transactions as a result of which the Company
is responsible for the payment of, such indebtedness of others, (5) renewals,
extensions and refunding of any such indebtedness, (6) interest or obligations
in respect of any such indebtedness accruing after the commencement of any
insolvency or bankruptcy proceedings and (7) obligations associated with
derivative products such as interest rate and currency exchange contracts,
foreign exchange contracts, commodity contracts, and similar arrangements,
unless, in each case, the instrument by which the Company incurred, assumed or
guaranteed the indebtedness or obligations described in clauses (1) through (7)
hereof expressly provides that such indebtedness or obligation is not senior in
right of payment to the Subordinated Debt Securities.
Upon any distribution of assets of the Company in connection with any
dissolution, winding up, liquidation or reorganization of the Company, whether
in a bankruptcy, insolvency, reorganization or receivership proceeding or upon
an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise, except a distribution in
connection with a merger or consolidation or a conveyance or transfer of all or
substantially all of the properties of the Company in accordance with the
Subordinated Indenture, the holders of all Senior Indebtedness shall first be
entitled to receive payment of the full amount due thereon, or provision shall
be made for such payment in money or money's worth, before the holders of any
of the Subordinated Debt Securities are entitled to receive any payment in
respect of the Subordinated Debt Securities. In the event that a payment
default shall have occurred and be continuing with respect to the Senior
Indebtedness, the holders of all Senior Indebtedness shall first be entitled to
receive payment of the full amount due thereon, or provision shall be made for
such payment in money or money's worth, before the holders of any of the
Subordinated Debt Securities are entitled to receive any payment in respect of
the Subordinated Debt Securities. In the event that the principal of the
Subordinated Debt Securities of any series shall have been declared due and
payable pursuant to the Subordinated Indenture and such declaration shall not
have been rescinded and annulled, the holders of all Senior Indebtedness
outstanding at the time of such declaration shall first be entitled to receive
payment of the full amount due thereon, or provision shall be made for such
payment in money or money's worth, before the holders of any of the
Subordinated Debt Securities are entitled to receive any payment in respect of
the Subordinated Debt Securities.
This subordination will not prevent the occurrence of any event of default
with respect to the Subordinated Debt Securities. There is no limitation on the
issuance of additional Senior Indebtedness in the Subordinated Indenture.
GLOBAL DEBT SECURITIES
The Debt Securities of a series may be issued in whole or in part in the form
of one or more global securities (each, a "Global Security") that will be
deposited with, or on behalf of, a Debt Depository identified in the applicable
Prospectus Supplement. Global Securities may be issued in either registered or
bearer form and in either temporary or permanent form. Unless otherwise
provided in such Prospectus Supplement, Debt Securities that are represented by
a Global Security will be issued in denominations of $1,000 or any integral
multiple thereof and will be issued in registered form only, without coupons.
Payments of principal of, and interest, if any, on Debt Securities represented
by a Global Security will be made by the Company to the Trustee under the
applicable Indenture, and then forwarded to the Debt Depository.
The Company anticipates that any Global Securities will be deposited with, or
on behalf of, The Depository Trust Company, New York, New York ("DTC"), and
that such Global Securities will be registered in the name of Cede & Co., DTC's
nominee. The Company further anticipates that the following provisions will
apply to the depository arrangements with respect to any such Global
Securities. Any additional or differing terms of the depository arrangements
will be described in the Prospectus Supplement relating to a particular series
of Debt Securities issued in the form of Global Securities.
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So long as DTC or its nominee is the registered owner of a Global Security,
DTC or its nominee, as the case may be, will be considered the sole Holder of
the Debt Securities represented by such Global Security for all purposes under
the applicable Indenture. Except as described below, owners of beneficial
interests in a Global Security will not be entitled to have 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 certificated
form and will not be considered the owners or Holders thereof under the
applicable Indenture. The laws of some states require that certain purchasers
of securities take physical delivery of such securities in certificated form;
accordingly, such laws may limit the transferability of beneficial interests in
a Global Security.
If DTC is at any time unwilling or unable to continue as depository or if at
any time DTC ceases to be a clearing agency registered under the Exchange Act
if so required by applicable law or regulation, and, in either case, a
successor Debt Depository is not appointed by the Company within 90 days, the
Company will issue individual Debt Securities in certificated form in exchange
for the Global Securities. In addition, the Company may at any time, and in its
sole discretion, determine not to have any Debt Securities represented by one
or more Global Securities, and, in such event, will issue individual Debt
Securities in certificated form in exchange for the relevant Global Securities.
In any such instance, an owner of a beneficial interest in a Global Security
will be entitled to physical delivery of individual Debt Securities in
certificated form of like tenor and rank, equal in principal amount to such
beneficial interest, and to have such Debt Securities in certificated form
registered in its name. Unless otherwise described in the applicable Prospectus
Supplement, Debt Securities so issued in certificated form will be issued in
denominations of $1,000 or any integral multiple thereof, and will be issued in
registered form only, without coupons.
DTC will act as securities depository for the Debt Securities. The Debt
Securities will be issued as fully registered securities registered in the name
of Cede & Co. (DTC's partnership nominee). One fully registered Debt Security
certificate will be issued with respect to each $200 million of principal
amount of the Debt Securities of a series, and an additional certificate will
be issued with respect to any remaining principal amount of such series.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc. Access to the DTC system is also available to
others, such as securities brokers and dealers, and banks and trust companies
that clear through or maintain a custodial relationship with a Direct
Participant, either directly or indirectly ("Indirect Participants"). The rules
applicable to DTC and its Participants are on file with the Commission.
Purchases of Debt Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Debt Securities on
DTC's records. The ownership interest of each actual purchaser of each Debt
Security ("Beneficial Owner") is in turn recorded on the Direct and Indirect
Participants' records. A Beneficial Owner does not receive written confirmation
from DTC of its purchase, but is expected to received a written confirmation
providing details of the transaction, as well as periodic statements of its
holdings, from the Direct or Indirect Participants through which such
Beneficial Owner entered into the action. Transfers of ownership interests in
Debt Securities are accomplished by entries made on the books of Participants
acting on behalf of Beneficial Owners. Beneficial Owners do not receive
certificates representing their ownership interests in Debt Securities, except
in the event that use of the book-entry system for the Debt Securities is
discontinued.
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To facilitate subsequent transfers, the Debt Securities are registered in the
name of DTC's partnership nominee, Cede & Co. The deposit of the Debt
Securities with DTC and their registration in the name of Cede & Co. will
effect no change in beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Debt Securities; DTC records reflect only the identity
of the Direct Participants to whose accounts Debt Securities are credited,
which may or may not be the Beneficial Owners. The Participants remain
responsible for keeping account of their holdings on behalf of their customers.
Delivery of notice and other communications by DTC to Direct Participants, by
Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners are governed by arrangements among
them, subject to any statutory or regulatory requirements as may be in effect
from time to time.
Neither DTC nor Cede & Co. consents or votes with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus Proxy")
to the issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede & Co.'s consenting or voting rights to those Direct Participants
to whose accounts the Debt Securities are credited on the record date
(identified on a list attached to the Omnibus Proxy).
Principal and interest payments, if any, on the Debt Securities are made to
DTC. DTC's practice is to credit Direct Participants' accounts on the payment
date in accordance with their respective holdings as shown on DTC's records
unless DTC has reason to believe that it will not receive payment on the
payment date. Payments by Participants to Beneficial Owners are governed by
standing instructions and customary practices, as is the case with securities
held for the accounts of customers in bearer form or registered in "street
name" and are the responsibility of such Participant and not of DTC, the
Trustee or the Company, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal and interest, if any,
to DTC is the responsibility of the Company or the Trustee, disbursement of
such payments to Direct Participants is the responsibility of DTC, and
disbursement of such payments to the Beneficial Owners is the responsibility of
Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Debt Securities at any time by giving reasonable notice to the
Company or the Trustee. Under such circumstances, in the event that a successor
securities depository is not appointed, Debt Security certificates are required
to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Debt Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Company believes to be reliable, but
the Company takes no responsibility for the accuracy thereof.
Unless stated otherwise in the Prospectus Supplement, the underwriters or
agents with respect to a series of Debt Securities issued as Global Securities
will be Direct Participants in DTC.
None of the Company, any underwriter or agent, the Trustee or any applicable
paying agent will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial interests in a
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interest.
CONCERNING THE TRUSTEE
The Trustee has extended credit facilities to the Company and conducts other
business with the Company and certain of its affiliates, including cash
management and stock transfer services and serving as the trustee for the FMC
Employees' Thrift and Stock Purchase Plan.
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DESCRIPTION OF THE WARRANTS TO PURCHASE COMMON STOCK OR PREFERRED STOCK
The following statements with respect to the Common Stock Warrants and
Preferred Stock Warrants (collectively, the "Stock Warrants") are summaries of,
and subject to, the detailed provisions of a warrant agreement ("Stock Warrant
Agreement") to be entered into by the Company and a warrant agent to be
selected at the time of issue (the "Stock Warrant Agent"), which Stock Warrant
Agreement may include or incorporate by reference standard warrant provisions
substantially in the form of the Standard Stock Warrant Provisions (the "Stock
Warrant Provisions") filed as an exhibit to the Registration Statement.
GENERAL
The Stock Warrants, evidenced by warrant certificates (the "Stock Warrant
Certificates"), may be issued under the Stock Warrant Agreement independently
or together with any Offered Securities offered by any Prospectus Supplement
and may be attached to or separate from such Offered Securities. If Stock
Warrants are offered, the related Prospectus Supplement will describe the terms
of the Stock Warrants, including without limitation the following: (1) the
offering price, if any; (2) the designation and terms of the Common or
Preferred Stock purchasable upon exercise of the Stock Warrants; (3) the number
of shares of Common or Preferred Stock purchasable upon exercise of one Stock
Warrant and the initial price at which such shares may be purchased upon
exercise; (4) the date on which the right to exercise the Stock Warrants shall
commence and the date on which such right shall expire; (5) a discussion of
certain federal income tax considerations; (6) the call provisions, if any; (7)
the currency, currencies or currency units in which the offering price, if any,
and exercise price are payable; (8) the antidilution provisions of the Stock
Warrants; and (9) any other terms of the Stock Warrants. The shares of Common
or Preferred Stock issuable upon exercise of the Stock Warrants will, when
issued in accordance with the Stock Warrant Agreement, be fully paid and
nonassessable.
EXERCISE OF STOCK WARRANTS
Stock Warrants may be exercised by surrendering to the Stock Warrant Agent
the Stock Warrant certificate signed by the warrantholder, or its duly
authorized agent, indicating the warrantholder's election to exercise all or a
portion of the Stock Warrants evidenced by the certificate. Surrendered Stock
Warrant certificates shall be accompanied by payment of the aggregate exercise
price of the Stock Warrants to be exercised, as set forth in the related
Prospectus Supplement, which payment may be made in the form of cash or a check
equal to the exercise price. Certificates evidencing duly exercised Stock
Warrants will be delivered by the Stock Warrant Agent to the transfer agent for
the Common Stock or the Preferred Stock, as the case may be. Upon receipt
thereof, the transfer agent shall deliver or cause to be delivered, to or upon
the written order of the exercising warrantholder, a certificate representing
the number of shares of Common Stock or Preferred Stock purchased. If fewer
than all of the Stock Warrants evidenced by any certificate are exercised, the
Stock Warrant Agent shall deliver to the exercising warrantholder a new Stock
Warrant certificate representing the unexercised Stock Warrants.
ANTIDILUTION PROVISIONS
The exercise price payable and the number of shares of Common or Preferred
Stock purchasable upon the exercise of each Stock Warrant will be subject to
adjustment in certain events, including the issuance of a stock dividend to
holders of Common or Preferred Stock, respectively, or a combination,
subdivision or reclassification of Common or Preferred Stock, respectively. In
lieu of adjusting the number of shares of Common or Preferred Stock purchasable
upon exercise of each Stock Warrant, the Company may elect to adjust the number
of Stock Warrants. No adjustment in the number of shares purchasable upon
exercise of the Stock Warrants will be required until cumulative adjustments
require an adjustment of at least 1% thereof. The Company may, at its option,
reduce the exercise price at any time. No fractional shares will be
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issued upon exercise of Stock Warrants, but the Company will pay the cash value
of any fractional shares otherwise issuable. Notwithstanding the foregoing, in
case of any consolidation, merger, or sale or conveyance of the property of the
Company as an entirety or substantially as an entirety, the holder of each
outstanding Stock Warrant shall have the right to the kind and amount of shares
of stock and other securities and property (including cash) receivable by a
holder of the number of shares of Common or Preferred Stock into which such
Stock Warrants were exercisable immediately prior thereto.
NO RIGHTS AS STOCKHOLDERS
Holders of Stock Warrants will not be entitled, by virtue of being such
holders, to vote, to consent, to receive dividends, to receive notice as
stockholders with respect to any meeting of stockholders for the election of
directors of the Company or any other matter, or to exercise any rights
whatsoever as stockholders of the Company.
DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES
The following statements with respect to the Debt Warrants are summaries of,
and subject to, the detailed provisions of a warrant agreement (the "Debt
Warrant Agreement") to be entered into by the Company and a warrant agent to be
selected at the time of issue (the "Debt Warrant Agent"), which Debt Warrant
Agreement may include or incorporate by reference standard warrant provisions
substantially in the form of the Standard Debt Securities Warrant Provisions
(the "Debt Warrant Provisions") filed as an exhibit to the Registration
Statement.
GENERAL
The Debt Warrants, evidenced by warrant certificates (the "Debt Warrant
Certificates"), may be issued under the Debt Warrant Agreement independently or
together with any Offered Securities offered by any Prospectus Supplement and
may be attached to or separate from such Offered Securities. If Debt Warrants
are offered, the related Prospectus Supplement will describe the terms of the
warrants, including without limitation the following: (1) the offering price,
if any; (2) the designation, aggregate principal amount and terms of the Debt
Securities purchasable upon exercise of the warrants; (3) if applicable, the
designation and terms of the Debt Securities with which the Debt Warrants are
issued and the number of Debt Warrants issued with each such Debt Security; (4)
if applicable, the date on and after which the Debt Warrants and the related
Offered Securities will be separately transferable; (5) the principal amount of
Debt Securities purchasable upon exercise of one Debt Warrant and the price at
which such principal amount of Debt Securities may be purchased upon exercise;
(6) the date on which the right to exercise the Debt Warrants shall commence
and the date on which such right shall expire; (7) a discussion of certain
federal income tax considerations; (8) whether the warrants represented by the
Debt Warrant Certificates will be issued in registered or bearer form; (9) the
currency, currencies or currency units in which the offering price, if any, and
exercise price are payable; (10) the antidilution provisions of the Debt
Warrants; and (11) any other terms of the Debt Warrants.
Debt Warrant Certificates may be exchanged for new Debt Warrant Certificates
of different denominations and may (if in registered form) be presented for
registration of transfer at the corporate trust office of the Debt Warrant
Agent, which will be listed in the related Prospectus Supplement, or at such
other office as may be set forth therein. Warrantholders do not have any of the
rights of holders of Debt Securities (except to the extent that the consent of
warrantholders may be required for certain modifications of the terms of an
Indenture or form of the Debt Security, as the case may be, and the series of
Debt Securities issuable upon exercise of the Debt Warrants) and are not
entitled to payments of principal of and interest, if any, on the Debt
Securities.
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EXERCISE OF DEBT WARRANTS
Debt Warrants may be exercised by surrendering the Debt Warrant Certificate
at the corporate trust office of the Debt Warrant Agent, with the form of
election to purchase on the reverse side of the Debt Warrant Certificate
properly completed and executed, and by payment in full of the exercise price,
as set forth in the Prospectus Supplement. Upon the exercise of Debt Warrants,
the Debt Warrant Agent will, as soon as practicable, deliver the Debt
Securities in authorized denominations in accordance with the instructions of
the exercising warrantholder and at the sole cost and risk of such holder. If
less than all of the Debt Warrants evidenced by the Debt Warrant Certificate
are exercised, a new Debt Warrant Certificate will be issued for the remaining
amount of Debt Warrants.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities (1) through underwriters or dealers,
(2) directly to one or more purchasers, or (3) through agents. A Prospectus
Supplement will set forth the terms of the offering of the Offered Securities
offered thereby, including the name or names of any underwriters, the purchase
price of the Offered Securities, and the proceeds to the Company from the sale,
any underwriting discounts and other items constituting underwriters'
compensation, any public offering price, any discounts or concessions allowed
or reallowed or paid to dealers, and any securities exchange or market on which
the Offered Securities may be listed. Only underwriters so named in such
Prospectus Supplement are deemed to be underwriters in connection with the
Offered Securities offered thereby.
If underwriters are used in the sale, the Offered Securities will be acquired
by the underwriters for their own account and may be resold from time to time
in one or more transactions, including negotiated transactions, at a fixed
public offering price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the Offered Securities will be
subject to certain conditions precedent, and the underwriters will be obligated
to purchase all the Offered Securities of the series offered by the Prospectus
Supplement if any of the Offered Securities are purchased. Any public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
Offered Securities may also be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offering
and sale of Offered Securities in respect of which this Prospectus is delivered
will be named, and any commissions payable by the Company to such agent will be
set forth, in the Prospectus Supplement. Unless otherwise indicated in the
related Prospectus Supplement, any such agent will be acting on a best-efforts
basis for the period of its appointment.
All Offered Securities offered other than Common Stock will be a new issue of
securities with no established trading market. Any underwriters to whom such
Offered Securities are sold by the Company for public offering and sale may
make a market in such Offered Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of or the trading markets
for any such Offered Securities.
Agents and underwriters 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, or to contribution
with respect to payments which the agents or underwriters may be required to
make in respect thereof. Agents and underwriters may engage in transactions
with, or perform services for, the Company in the ordinary course of business.
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LEGAL MATTERS
Certain legal matters with respect to the validity of the Offered Securities
will be passed upon for the Company by Winston & Strawn, Chicago, Illinois. The
Chairman of the Executive Committee of Winston & Strawn, Governor James R.
Thompson, serves as a member of the Company's Board of Directors and as of
March 1, 1995 beneficially owned 983 shares of Common Stock. Certain legal
matters with respect to the Offered Securities will be passed upon for any
underwriters or agents by Mayer, Brown & Platt, Chicago, Illinois. Mayer, Brown
& Platt from time to time acts as counsel in certain matters for the Company.
EXPERTS
The consolidated financial statements of the Company and its consolidated
subsidiaries as of December 31, 1993 and 1994 and for the years ended December
31, 1992, 1993 and 1994 incorporated by reference herein and elsewhere in the
Registration Statement have been audited by KPMG Peat Marwick LLP ("KPMG"),
independent certified public accountants, as set forth in their report thereon
incorporated by reference herein which, as to 1994, is based in part on the
report of Ernst & Young LLP ("Ernst & Young"), independent auditors, that also
is incorporated by reference herein. The financial statements referred to above
are incorporated by reference in reliance upon such reports given upon the
authority of such firms as experts in accounting and auditing. To the extent
that KPMG audits and reports on consolidated financial statements of the
Company and consolidated subsidiaries issued at future dates, and consents to
the use of their reports thereon, such consolidated financial statements also
will be incorporated by reference in the Registration Statement in reliance
upon their reports given upon the authority of such firm as experts in
accounting and auditing. To the extent that Ernst & Young audits and reports on
financial statements of United Defense, L.P., a subsidiary of the Company
issued at future dates, and consents to the use of their reports thereon, such
reports also will be incorporated by reference in the Registration Statement in
reliance upon such reports given upon the authority of such firm as experts in
accounting and auditing.
With respect to the unaudited interim financial information of the Company
and its consolidated subsidiaries for the periods ended March 31, 1995 and 1994
and June 30, 1995 and 1994, incorporated by reference herein, KPMG has reported
that they applied limited procedures in accordance with professional standards
for a review of such information. The reports of KPMG for such periods state
that such reports are based on the reports of other accountants with respect to
interim financial information of United Defense, L.P. With respect to the
unaudited interim financial information of United Defense, L.P., for the
periods ended March 31, 1995 and 1994 and June 30, 1995 and 1994, Ernst & Young
has reported that they applied limited procedures in accordance with
professional standards for a review of such information. However, the separate
reports of KPMG and Ernst & Young included in the Company's Quarterly reports
on Form 10-Q for the quarters ended March 31, 1995 and June 30, 1995, and
incorporated by reference herein, state that they did not audit and they do not
express an opinion on that interim financial information. Accordingly, the
degree of reliance on their reports on such information should be restricted in
light of the limited nature of the review procedures applied. Neither KPMG nor
Ernst & Young is subject to the liability provisions of Section 11 of the
Securities Act for their reports on the unaudited interim financial information
because neither report is a "report" or a "part" of the Registration Statement
prepared or certified by the accountants within the meaning of Sections 7 and
11 of the Securities Act.
24
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
All dollar amounts in the following table are estimates except the amount of
the registration fee under the Securities Act of 1933:
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................... $172,414
Blue sky fees and expenses...................................... 15,000
Accounting fees and expenses.................................... 35,000
Legal fees and expenses......................................... 75,000
Printing and engraving.......................................... 75,000
Rating Agency fees.............................................. 150,000
Trustee's fees and expenses..................................... 10,000
Miscellaneous................................................... 67,586
--------
Total....................................................... $600,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Registrant is a Delaware corporation. Reference is made to Section 145 of the
Delaware General Corporation Law, as amended (the "GCL"), which provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of such corporation), by reason of the fact that such person
is or was a director, officer, employee or agent of the corporation, or is or
was serving at its request in such capacity of another corporation or business
organization against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed
to the best interest of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that such person's
conduct was unlawful. A Delaware corporation may indemnify officers and
directors in an action by or in the right of a corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses that such officer or director actually and
reasonably incurred.
Article XI of the By-laws of the Company provides that the Company shall
indemnify its directors and officers to the full extent permitted by Section
145 of the GCL.
Under the terms of the Equity Underwriting Agreement and the Debt
Underwriting Agreement filed as exhibits hereto, directors, certain officers
and controlling persons of the Company are entitled to indemnification under
certain circumstances including proceedings under the Securities Act of 1933
and the Securities Exchange Act of 1934.
ITEM 16. EXHIBITS
A list of exhibits included as part of this Registration Statement is set
forth in the Exhibit Index which immediately precedes such exhibits and is
incorporated herein by reference.
II-1
<PAGE>
ITEM 17. UNDERTAKINGS
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1993.
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1)(i) and
(1)(ii) do not apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in periodic reports filed
with or furnished to the Commission by the Company pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by reference
in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
The Company hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Company pursuant to the provisions described in Item 15 or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. If a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company 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 Company, 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-2
<PAGE>
The Company hereby undertakes that:
(1) 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 Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) 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.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THE REGISTRANT CERTIFIES
THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE REQUIREMENTS
FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN CHICAGO,
ILLINOIS ON SEPTEMBER 7, 1995.
FMC Corporation
/s/ Michael J. Callahan
By: ________________________________
Michael J. Callahan
Executive Vice President and
Principal Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES AND
ON THE DATES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Robert N. Burt Chairman of the Board and September 7, 1995
____________________________________ Chief Executive Officer
Robert N. Burt (Principal Executive
Officer)
/s/ Michael J. Callahan Executive Vice President September 7, 1995
____________________________________ (Principal Financial
Michael J. Callahan Officer)
/s/ Ronald D. Mambu Vice President and September 7, 1995
____________________________________ Controller (Principal
Ronald D. Mambu Accounting Officer)
/s/ William W. Boeschenstein* Director September 7, 1995
____________________________________
William W. Boeschenstein
/s/ Larry D. Brady* Director September 7, 1995
____________________________________
Larry D. Brady
/s/ B.A. Bridgewater, Jr.* Director September 7, 1995
____________________________________
B.A. Bridgewater, Jr.
Director September 7, 1995
____________________________________
Patricia A. Buffler
/s/ Albert J. Costello* Director September 7, 1995
____________________________________
Albert J. Costello
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Paul L. Davies, Jr.* Director September 7, 1995
____________________________________
Paul L. Davies, Jr.
/s/ Jean A. Francois-Poncet* Director September 7, 1995
____________________________________
Jean A. Francois-Poncet
/s/ Robert H. Malott* Director September 7, 1995
____________________________________
Robert H. Malott
/s/ Edward C. Meyer* Director September 7, 1995
____________________________________
Edward C. Meyer
/s/ William F. Reilly* Director September 7, 1995
____________________________________
William F. Reilly
/s/ James R. Thompson* Director September 7, 1995
____________________________________
James R. Thompson
/s/ Clayton Yeutter* Director September 7, 1995
____________________________________
Clayton Yeutter
</TABLE>
/s/ Robert L. Day
*By ___________________________
Robert L. Day
(Attorney-in-fact)
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. EXHIBIT PAGE
----------- ------- ------------
<C> <S> <C>
1.1 Equity Underwriting Agreement.
1.2 Debt Underwriting Agreement.
4.1 Restated Certificate of Incorporation of the
Company as filed on July 1, 1986 (incorporated by
reference from Exhibit 3.1 to the Company's Form SE
filed on March 25, 1993, File No. 1-2376, EDGAR
filing).
4.2 Amendment to Restated Certificate of Incorporation
filed on April 30, 1987 (incorporated by reference
from Exhibit 3.2 to the Company's Form SE filed on
March 25, 1993, File No. 1-2376, EDGAR filing).
4.3 Amended and Restated By-Laws of the Company, as
amended (incorporated by reference from Exhibit 3.1
to the Company's Form SE filed on March 28, 1990,
File No. 1-2376, EDGAR filing).
4.4 Amended and Restated Rights Agreement, dated as of
February 19, 1988, between Registrant and Harris
Trust and Savings Bank (incorporated by reference
from Exhibit 4 to the Company's Form SE filed on
March 25, 1993, File No. 1-2376, EDGAR filing).
4.5 Form of Senior Indenture by and among the Company
and Harris Trust and Savings Bank, as Trustee.
4.6 Form of Subordinated Indenture by and among the
Company and Harris Trust and Savings Bank, as
Trustee.
4.7 Form of Standard Stock Warrant Provisions.
4.8 Form of Standard Debt Warrant Provisions.
5.1 Opinion of Winston & Strawn.
12.1 Statement regarding computation of ratios of
earnings to fixed charges.
15.1 Letter from KPMG Peat Marwick LLP re: Unaudited
Interim Financial Information.
15.2 Letter from Ernst & Young LLP re: Unaudited Interim
Financial Information.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Winston & Strawn (included in its
opinion filed as Exhibit 5.1).
24.1 Powers of Attorney.
25.1 Statement of Eligibility of Trustee on Form T-1 for
Harris Trust and Savings Bank.
</TABLE>
II-6
<PAGE>
EXHIBIT 1.1
FMC CORPORATION
Equity Securities and Warrant Securities
----------------------------------------
UNDERWRITING AGREEMENT
_________, 199_
Morgan Stanley & Co. Incorporated
[Names of Other Co-Managers]
c/o Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
FMC Corporation, a Delaware corporation (the "Company"), proposes to issue
and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") [_____________ shares of its Common Stock, $.10 par value per
share] [_____________ shares of its Preferred Stock, no par value per share]
[certain depositary shares representing shares of its Preferred Stock, no par
value per share] (the "Firm Shares") [and warrants to purchase __________ (the
"Warrants")]. The Company also proposes to issue and sell to the several
Underwriters not more than an additional [____________ shares of its Common
Stock, $.10 par value per share] [____________ shares of its Preferred Stock, no
par value per share] [___________ depositary shares representing shares of its
Preferred Stock, no par value per share] (the "Additional Shares"), [and
________ Warrants] if and to the extent that you, as Manager of the offering,
shall have determined to exercise, on behalf of the Underwriters, the right to
purchase such [shares of common stock] [shares of preferred stock] [depositary
shares] [and Warrants] granted to the Underwriters in Article II hereof. The
Firm Shares and the Additional Shares are hereinafter collectively referred to
as the Shares. The [shares of Common Stock, $.10 par value per share] [shares
of Preferred Stock, no par value per share] [depositary shares representing
shares of the Preferred Stock, no par value per share,] of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the [Common Stock] [Preferred Stock] [Depositary Shares].
[If the Final Prospectus (as defined below) so provides, the Preferred
Stock will be deposited by the Company against delivery of receipts (the
"Depositary Receipts") to be issued by a depositary to be named by the Company
(the "Depositary") under a deposit agreement, dated as of a date specified in
the Final Prospectus (the "Deposit Agreement"), between the Company, the
Depositary and the holders from time to time
<PAGE>
of the Depositary Receipts issued thereunder and evidencing Shares. Each Share
will represent the number of deposited shares of Preferred Stock specified in
the Final Prospectus.]
[The Warrants are to be issued pursuant to one or more warrant agreements
(each hereinafter called a Warrant Agreement) between the Company and the
Warrant Agent identified in such Warrant Agreement.]
[The terms and rights of any particular issuance of [Preferred Stock]
[Depositary Shares] shall be as specified in or pursuant to a resolution or
resolutions of the Board of Directors of the Company or a duly authorized
committee thereof and set forth in a certificate of designations (the
"Certificate of Designations") to be filed with the Secretary of State of the
State of Delaware pursuant to Section 151 of the General Corporation Law of the
State of Delaware (the "General Corporation Law").]
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, which has become effective,
for the registration under the Securities Act of 1933, as amended (the
"Securities Act"), of certain [equity and warrant] securities (the "Shelf
Securities") to be issued from time to time by the Company. The Company
proposes to file with the Commission pursuant to Rule 424 under the Securities
Act a prospectus supplement specifically relating to the Shares [, the Warrants]
and the plan of distribution thereof and has previously advised you of all
further information with respect to the Company to be set forth therein. The
registration statement, including exhibits, as amended at the date of this
Agreement, is hereinafter referred to as the Registration Statement and the
related prospectus covering the Shelf Securities dated ________, 1995 is
hereinafter referred to as the Basic Prospectus. Any preliminary form of the
Prospectus filed with the Commission pursuant to Rule 424 shall be referred to
as a preliminary prospectus. The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Shares [and Warrants],
including any preliminary prospectus, is hereinafter called the Final
Prospectus. All references to the Registration Statement, the Basic Prospectus,
a preliminary prospectus and the Final Prospectus include the documents
incorporated therein by reference.
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, to the knowledge of the Company, no proceedings for such purpose are
pending before or threatened by the Commission.
-2-
<PAGE>
(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 Final Prospectus complied or will comply when so filed in
all material respects with the Exchange Act, and the rules and regulations
thereunder, (ii) the Registration Statement complied when filed in all
material respects with the Securities Act and the rules and regulations of
the Commission thereunder, (iii) each preliminary prospectus 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 and (iv) the Registration Statement and Final
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) will comply in all material respects
with the Securities Act and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; except that the foregoing
representations and warranties shall not apply to (a) that part of the
Registration Statement that constitutes the Statement of Eligibility (Form
T-1) under the Trust Indenture Act of 1939 of ___________________________,
Trustee under the Indenture, and (b) statements or omissions in the
Registration Statement, Basic Prospectus or the Final Prospectus based upon
information furnished to the Company in writing by any Underwriter through
you expressly for use therein.
(c) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Final Prospectus.
(d) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid and
non-assessable.
(e) [The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement [and when the
Certificate of Designations is duly executed, filed, recorded and is in
effect under the General Corporation Law], will be validly issued, fully
paid and non-assessable, and the issuance of such Shares will not be
subject to any preemptive or similar rights.] [The Shares have been duly
authorized and, when issued and delivered in accordance with the terms of
this Agreement and when the Certificate of Designations is duly executed,
filed, recorded and is in effect under the General Corporation Law, the
Preferred Stock to be issued in connection with the Shares shall be validly
issued, fully paid and non-assessable and the issuance of such Preferred
Stock will not be subject to any preemptive or similar rights.]
[(f) Assuming due issuance by the Depositary of Depositary Receipts
evidencing the Preferred Stock to be delivered by the Company against the
-3-
<PAGE>
deposit of Preferred Stock in respect thereof in accordance with the
provisions of the Deposit Agreement, such Depositary Receipts are duly and
validly issued and the persons in whose names such Depositary Receipts are
registered shall be entitled to the rights specified therein and in the
Deposit Agreement.]
(g) 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 Final Prospectus.
(h) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
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 numbers of Firm
Shares [and Warrants] set forth in Schedule I hereto opposite their names at
$____ a share -- the purchase price.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares [and Warrants], and the Underwriters
shall have a one-time right to purchase, severally and not jointly, up to
_________ Additional Shares [and Warrants] at the purchase price. Additional
Shares [and Warrants] may be purchased as provided in Article IV hereof solely
for the purpose of covering over-allotments made in connection with the offering
of the Firm Shares [and Warrants]. If any Additional Shares [and Warrants] are
to be purchased, each Underwriter agrees, severally and not jointly, to purchase
the number of Additional Shares (subject to such adjustments to eliminate
fractional shares as you may determine) [and Warrants] that bears the same
proportion to the total number of Additional Shares [and Warrants] to be
purchased as the number of Firm Shares [and Warrants] set forth in Schedule I
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares [and Warrants].
The Company hereby agrees that, without your prior written consent, it will
not offer, sell, contract to sell or otherwise dispose of any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for such
Common Stock for a period of ____ days after the date of the initial public
offering of the Shares [and Warrants], other than (i) the Shares [and Warrants]
to be sold hereunder and (ii) any shares of such Common Stock sold by the
Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof.
-4-
<PAGE>
III.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Shares [and Warrants] as
soon after this Agreement has become effective as in your judgment is advisable.
The Company is further advised by you that the Shares [and Warrants] are to be
offered to the public initially at $________ a share (the public offering price)
and to certain dealers selected by you at a price that represents a concession
not in excess of $____ a share under the public offering price, and that any
Underwriter may allow, and such dealers may reallow, a concession, not in excess
of $____ a share, to any Underwriter or to certain other dealers.
IV.
Payment for the Firm Shares [and Warrants] shall be made by certified
or official bank check or checks payable (or wire transfer) to the order of the
Company in immediately available (same day) funds at the office of Winston &
Strawn, Chicago, Illinois, at 10:00 A.M., New York time, on _________, 199_ or
at such other time on the same or such other date, not later than ________,
199_, 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 any Additional Shares [and Warrants] shall be made by
certified or official bank check or checks payable (or wire transfer) to the
order of the Company in immediately available (same day) funds at the office of
Winston & Strawn, Chicago, Illinois,, at 10:00 A.M., New York time, on such date
(which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor later than ten business days after the giving of the notice
hereinafter referred to) as shall be designated in a written notice from you to
the Company of your determination, on behalf of the Underwriters, to purchase a
number, specified in said notice, of Additional Shares [and Warrants], or on
such other date, in any event not later than ________, 199_, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the Option Closing Date. The notice of the determination to
exercise the option to purchase Additional Shares [and Warrants] and of the
Option Closing Date may be given at any time within 30 days after the date of
this Agreement.
Certificates for the Firm Shares and Additional Shares [and Warrants]
shall be in definitive form and registered in such names and in such
denominations as you shall request in writing not later than two full business
days prior to the Closing Date or the Option Closing Date, as the case may be.
The certificates evidencing the Firm Shares and Additional Shares [and Warrants]
shall be delivered to [you] [the Depositary] on the Closing Date or the Option
Closing Date, as the case may be, for the respective accounts of the several
Underwriters, with any transfer taxes payable in connection with the transfer of
the Shares [and Warrants] to the Underwriters duly paid, against payment of
-5-
<PAGE>
the purchase price therefor [(it being understood that any Preferred Stock to be
issued in connection with any Shares shall be transferred and delivered by or on
behalf of the Company to the Depositary for deposit pursuant to the Deposit
Agreement against issuance to you for the respective accounts of the several
Underwriters of one or more Depositary Receipts evidencing the Shares to be
purchased by each Underwriter)].
[Depositary Receipts evidencing any Shares to be purchased hereunder,
in definitive form and registered in such names as provided above, shall be made
available for checking and packaging at least 48 hours prior to the Closing Date
or the Option Closing Date, as the case may be, at the offices of the
Depositary. Such Depositary Receipts shall be available for release at the
Closing Date or Option Closing Date, as the case may be, at such office.]
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, 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 Final
Prospectus, that, in your judgment, is material and adverse and that makes
it, in your judgment, impracticable to market the Shares [and Warrants] on
the terms and in the manner contemplated in the Final Prospectus.
(b) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential
downgrading, 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.
(c) 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 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
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
-6-
<PAGE>
(d) You shall have received on the Closing Date an opinion of Winston
& Strawn, counsel for the Company, dated the Closing Date, to the effect
that:
(i) the authorized capital stock of the Company conforms as
to legal matters to the description thereof contained in the
Final Prospectus;
(ii) [the Shares have been duly authorized and, when issued
and delivered in accordance with the terms of this Agreement [and
the Warrant Agreement], will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be
subject to any preemptive or similar rights;] [the Shares have
been duly authorized and, when issued and delivered in accordance
with the terms of this Agreement and the Deposit Agreement [and
the Warrant Agreement], the Preferred Stock to be issued in
connection with the Shares shall be validly issued, fully paid
and non-assessable and the issuance of such Preferred Stock will
not be subject to any preemptive or similar rights;]
(iii) this Agreement [, the Warrant Agreement] [and the
Deposit Agreement] [has] [have] been duly authorized, executed
and delivered by the Company and [the Warrant Agreement] [and the
Deposit Agreement] [is] [are] valid and binding agreements of the
Company;
[(iv) assuming due issuance by the Depositary of Depositary
Receipts evidencing the Preferred Stock to be delivered by the
Company against the deposit of Preferred Stock in respect thereof
in accordance with the provisions of the Deposit Agreement, such
Depositary Receipts are duly and validly issued and the persons
in whose names such Depositary Receipts are registered shall be
entitled to the rights specified therein and in the Deposit
Agreement;]
(v) the execution, delivery and performance of this
Agreement [, the Warrants] [, the Warrant Agreement] [and the
Deposit Agreement] by the Company, and the issuance and sale of
the Shares [and Warrants] by the Company as provided in this
Agreement [, the Warrant Agreement] [and the Deposit Agreement],
will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, the certificate of
incorporation or by-laws of the Company, or the Credit Agreement
dated as of December __, 1994 among the Company, the lenders
listed therein and _____________________, as Agent (the
-7-
<PAGE>
"Credit Agreement"), or the Fiscal Agency Agreement dated as of
January 16, 1990 between the Company and the Union Bank of
Switzerland relating to the 6 3/4% Exchangeable Senior
Subordinated Debentures due 2005 (the "Exchangeable Debentures")
[or other specified debt agreements];
(vi) no authorization, consent, approval or order of any
court or governmental agency or body in the United States or any
state or political subdivision thereof is required for the
issuance, sale or performance of the Company's obligations with
respect to the Shares [and Warrants], in the manner contemplated
by this Agreement [, the Warrants] [, the Warrant Agreement] [and
the Deposit Agreement], except such as are specified and have
been obtained and such as may be required by the securities or
blue sky laws of the various states in connection with the
purchase and distribution of the Shares [and Warrants] by the
Underwriters;
(vii) the statements (1) in the Final Prospectus under
"___________," under "General Description of the Offered
Securities," under "Description of the [Common] [Preferred]
Stock" [, under "Description of the Warrants to Purchase Common
Stock or Preferred Stock"] and (2) in the Registration Statement
in Item 15, insofar as such statements constitute a summary of
the legal matters, documents or proceedings referred to therein,
fairly present in all material respects the information called
for with respect to such legal matters, documents and
proceedings;
(viii) 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; and
(ix) such counsel is of the opinion that the Registration
Statement and the Final Prospectus and any supplements or
amendments thereto (except for financial statements and schedules
and other financial data and that part of the Registration
Statement that constitutes the Form T-1 referred to above 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.
Such counsel shall also have furnished to you a written
statement, in form and substance satisfactory to you, to the
effect that nothing has come to such counsel's attention that
causes them to believe that (except for financial statements and
schedules and
-8-
<PAGE>
other financial data as to which such counsel need not express
any belief and except for that part of the Registration Statement
that constitutes the Form T-1 referred to above) the Registration
Statement 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 that the Final
Prospectus, as of the Closing Date, contains any untrue statement
of a material fact or omits 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.
(e) You shall have received on the Closing Date an opinion of the
General Counsel or Assistant General Counsel for the Company, dated the
Closing Date, to the effect that:
(i) the shares of Common Stock outstanding prior to the
issuance of the Shares [and Warrants] have been duly authorized
and are validly issued, fully paid and non-assessable;
(ii) the Company is validly existing as a corporation in
good standing under the laws of Delaware and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or the 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, and has all corporate power and
authority under its certificate of incorporation, bylaws and the
laws of the State of Delaware to own, lease and operate its
properties and conduct its business as described in the Final
Prospectus;
(iii) each Significant Subsidiary (as defined in Regulation
S-X promulgated by the Commission) of the Company is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or the 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 whole;
(iv) neither the Company nor any subsidiary is in violation
of its certificate of incorporation or by-laws or, to the best of
such
-9-
<PAGE>
counsel's knowledge after due inquiry, in default in the
performance of any obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of
indebtedness or in any indenture, lease, loan agreement or other
instrument governing any indebtedness to which the Company or any
subsidiary is a party or by which the Company or any subsidiary
or their property or claims is bound, except to the extent that
such violation or default would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole;
(v) such counsel is not aware after due inquiry of the
Company's failure to possess or to be in compliance with any
franchises, grants, authorizations, licenses, permits, easements,
consents, certificates or orders required for the conduct of the
business of the Company or any subsidiary, except to the extent
that the failure to so possess or comply would not have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(vi) except as disclosed in the Final Prospectus, the
securities of each direct or indirect subsidiary of the Company
listed on Exhibit 21 to the Company's most recent Annual Report
on Form 10-K which is a Significant Subsidiary (as defined above)
are owned by the Company or a subsidiary of the Company to the
extent described therein free and clear of all liens and
encumbrances and any other adverse claims (other than directors'
qualifying shares and shares of common stock of FMC Gold Company
which are exchangeable for the Exchangeable Debentures);
(vii) there is no action, suit or proceeding pending or
threatened against or affecting the Company or any of its
properties before or by any court, governmental official,
commission, board of other administrative agency or arbitrator
that has a reasonable probability (taking into account the
exhaustion of all appeals) of having a material adverse effect on
the business, operations, properties, consolidated financial
condition, consolidated results of operations or business
prospects of the Company, except as disclosed in the Final
Prospectus, or that in any manner questions the validity of this
Agreement, [the Warrant Agreement,] [the Deposit Agreement] or
the Shares [or Warrants];
(viii) the execution, delivery and performance of this
Agreement, [the Warrants] [, the Warrant Agreement] [and the
Deposit Agreement] by the Company and the issuance and sale of
-10-
<PAGE>
the Shares [and Warrants] by the Company as provided in this
Agreement [, the Warrant Agreement] [and the Deposit Agreement],
will not result in a breach or violation of any of the terms or
provisions of, or constitute a default under, the certificate of
incorporation of the Company or any Significant Subsidiary, or
any provision of applicable law or administrative regulation
known to such counsel or any agreement or other instrument known
to such counsel binding upon the Company or any subsidiary and
which is material to the Company and its subsidiaries taken as a
whole or any decree of any court known to such counsel applicable
to the Company or any subsidiaries or any of their properties;
(ix) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of
the properties of the Company is subject that is required to be
described in the Registration Statement or the Final Prospectus
and is not so described or of any contract or other document
which is required to be described in the Registration Statement
or the Final Prospectus or to be filed as an exhibit to the
Registration Statement that is not described or filed as
required; and
(x) such counsel is of the opinion that each document
incorporated by reference in the Registration Statement and the
Final Prospectus (except for financial statements and schedules
and other financial data as to which such counsel need not
express any opinion) complied as to form when filed with the
Commission in all material respects with the Exchange Act, and
the rules and regulations of the Commission thereunder.
Such counsel shall also have furnished to you a written
statement, in form and substance satisfactory to you, to the
effect that nothing has come to such counsel's attention that
causes him to believe that (except for financial statements and
schedules and other financial data as to which such counsel need
not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 referred to
above) the Registration Statement at the time it 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 that the Final
Prospectus, as of the Closing Date, contains any untrue statement
of a material fact or omits to state a material fact necessary in
order to make the
-11-
<PAGE>
statements therein, in light of the circumstances under which
they were made, not misleading;
(f) You shall have received on the Closing Date an opinion of Mayer,
Brown & Platt, counsel for the Underwriters, dated the Closing Date,
covering the matters referred to in subparagraphs (ii), (iii), [(iv)] (vii)
(but only as to the statements in the Final Prospectus under "___________,"
"General Description of the Offered Securities," "Description of the
[Common] [Preferred] Stock" [and "Description of the Warrants to Purchase
Common Stock or Preferred Stock"]), and (ix) (but as to the Registration
Statement only as of the date of this Agreement) of paragraph (d) above.
Such counsel shall also have furnished to you a written statement to the
same effect as the last sentence of paragraph (d) above.
With respect to the last sentence of paragraph (e) above, such counsel may
state that his opinion and belief is based upon his participation in the
preparation of the Registration Statement and Final Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but is without
independent check or verification except as specified. With respect to the last
sentence of paragraph (d) above, Winston & Strawn and Mayer, Brown & Platt may
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Final Prospectus and any
amendments or supplements thereto (but not including documents incorporated
therein by reference) and review and discussion of the contents thereof
(including documents incorporated therein by reference), but is without
independent check or verification except as specified.
The opinion of Winston & Strawn described in paragraph (d) above shall be
rendered to you at the request of the Company and shall so state therein.
(g) 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 satisfactory to you, from KPMG Peat
Marwick LLP [and Ernst & Young LLP], independent public accountants,
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 the
Registration Statement and the Final Prospectus.
[(h) The "lock-up" agreements between you and certain officers and
directors of the Company relating to sales of shares of Common Stock or any
securities convertible into or exercisable or exchangeable for such Common
Stock, delivered to you on or before the date hereof, shall be in full
force and effect on the Closing Date.]
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<PAGE>
[(i) Counsel to the Depositary shall have furnished to you their
written opinion, dated the Closing Date, in form and substance reasonably
satisfactory to you to the effect that (i) the Deposit Agreement has been
duly authorized, executed and delivered by the Depositary and constitutes a
valid and legally binding obligation of the Depositary and (ii) the
Depositary Receipts issued under and in accordance with the provisions of
the Deposit Agreement to evidence the Shares shall entitle the holders
thereof to the rights specified therein and in the Deposit Agreement.]
The several obligations of the Underwriters to purchase Additional Shares
[and Warrants] hereunder are subject to the delivery to you on the Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Shares [and Warrants] and other matters related to the issuance of
the Additional Shares [and Warrants].
VI.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish to you, without charge, ____ signed copies of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in paragraph
(c) below, as many copies of the Final Prospectus and any supplements and
amendments thereto or to the Registration Statement as you may reasonably
request. The terms "supplement" and "amendment" or "amend" as used in this
Agreement shall include all documents subsequently filed by the Company
with the Commission pursuant to the Exchange Act that are deemed to be
incorporated by reference in the Final Prospectus.
(b) Before amending or supplementing the Registration Statement or
the Final Prospectus with respect to the Shares [and Warrants], to furnish
you a copy of each such proposed amendment or supplement, and to file no
such proposed amendment or supplement (other than quarterly and annual
reports on Forms 10-Q and 10-K covering periods commencing after ________,
199_ or current reports on Form 8-K covering events occurring after
_________, 199_) to which you reasonably object.
(c) If, during such period after the first date of the public
offering of the Shares [and Warrants] as in the opinion of your counsel the
Final 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 Final
Prospectus in order to make the statements
-13-
<PAGE>
therein, in the light of the circumstances when the Final Prospectus is
delivered to a purchaser, not misleading, or if, in the opinion of your
counsel, it is necessary to amend or supplement the Final 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 Shares [and
Warrants] may have been sold by you on behalf of the Underwriters and to
any other dealers upon request, either amendments or supplements to the
Final Prospectus so that the statements in the Final Prospectus as so
amended or supplemented will not, in the light of the circumstances when
the Final Prospectus is delivered to a purchaser, be misleading or so that
the Final Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor with the assistance of your counsel to qualify the
Shares [and Warrants] for offer and sale under the securities or Blue Sky
laws of such jurisdictions as you shall reasonably request and to pay all
reasonable expenses (including fees and disbursements of counsel) in
connection with such qualification, as well as all filing fees payable in
connection with the review (if any) of the offering of the Shares [and
Warrants] by the National Association of Securities Dealers, Inc.;
provided, however, that in connection therewith the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction in which
it is not so qualified, to file a general consent to service of process in
any jurisdiction or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise subject.
(e) To make generally available to the Company's security holders and
to you as soon as practicable an earnings statement covering the twelve-
month period ending _________, 199_ that satisfies the provisions of
Section 11(a) of the Securities Act and the rules and regulations of the
Commission thereunder.
[(f) To use its best efforts to duly file and record a Certificate of
Designations relating to the [Shares] [Preferred Stock] with the Secretary
of State of the State of Delaware in accordance with the General
Corporation Law.]
[(g) To use its best efforts to have the Shares [and Warrants] listed
on each exchange upon which the Final Prospectus states the Shares [and
Warrants] will be listed, if any.]
[(h) To reserve and keep available at all times, free of preemptive
rights, shares of Common Stock for the purpose of enabling the Company to
satisfy any obligations to issue Common Stock upon exercise of the
Warrants.]
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<PAGE>
VII.
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any 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 the Final
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission or alleged omission to state therein a material fact 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 furnished to the Company in writing by any Underwriter
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 Shares [and Warrants], or any person
controlling such Underwriter, if a copy of the Final 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 Shares [and Warrants] to such person,
and if the Final Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability.
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 each 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, the Final Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
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 (hereinafter
called the indemnified party) shall promptly notify the person against whom such
indemnity may be sought (hereinafter called 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 reasonable fees and
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<PAGE>
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 reasonable 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 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 indemnified pursuant to the first
paragraph of this Article VII, and by the Company, in the case of parties
indemnified pursuant to the second paragraph of this Article VII. 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 to the extent set forth above 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, as a matter of applicable law, unavailable to an
indemnified party in respect of any losses, claims, damages or liabilities for
which indemnification is provided 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 and the
Underwriters from the offering of the Shares [and Warrants] 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 and
of the Underwriters 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 and the
Underwriters shall be deemed to be in the same respective proportions as the net
proceeds from the offering (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 Final
Prospectus, bear to the aggregate public offering price of the Shares [and
Warrants]. The relative
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<PAGE>
fault of the Company and the Underwriters 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 Company and the Underwriters agree that it would not be just and
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 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 Shares [and Warrants] 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 Underwriters' obligations to
contribute pursuant to this Article VII are several in proportion to the
respective number of Shares [and Warrants] purchased by each Underwriter and not
joint.
The indemnity and contribution agreements 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 other person controlling the
Company and (iii) acceptance of and payment for any of the Shares [or Warrants].
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 or the National Association of Securities
Dealers, Inc., (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
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<PAGE>
(iv) there shall have occurred any outbreak or escalation of major hostilities
or any significant change in financial markets or any calamity or crises 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 Shares [and Warrants] substantially on the terms and in the manner
contemplated in the Final Prospectus. Any such termination shall be without
liability on the part of any Underwriter or the Company.
IX.
This Agreement shall become effective upon execution and delivery hereof by
the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase Shares [and
Warrants] that it or they have agreed to purchase hereunder on such date, and
the aggregate number of Shares [and Warrants] which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than one-
tenth of the aggregate number of the Shares [and Warrants] to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the number of Firm Shares [and Warrants] set forth opposite
their respective names in Schedule I bears to the aggregate number of Firm
Shares [and Warrants] set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares [and Warrants] which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase on such date; provided that in no event shall
the number of Shares [and Warrants] 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 number of Shares [and Warrants] without the written
consent of such Underwriter. If, on the Closing Date or the Option Closing
Date, as the case may be, any Underwriter or Underwriters shall fail or refuse
to purchase Shares [and Warrants] and the aggregate number of Shares [and
Warrants] with respect to which such default occurs is more than one-tenth of
the aggregate number of Shares [and Warrants] to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such Shares
[and Warrants] 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 or the Option Closing Date, as the case may be, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Final 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.
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<PAGE>
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 reasonable fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
The Underwriters agree to advise the Company promptly of the completion of
the distribution of the Shares [and Warrants].
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,
FMC CORPORATION
By: ____________________________
[Name]
[Title]
Accepted, ____________, 199_
MORGAN STANLEY & CO. INCORPORATED
[Names of Other Co-Managers]
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule I hereto.
By Morgan Stanley & Co. Incorporated
By: ___________________________
[Name]
[Title]
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SCHEDULE I
Number of
Firm Shares
[and Warrants]
Underwriter To Be Purchased
----------- ---------------
Morgan Stanley & Co. Incorporated
[Names of Other Co-Managers]
[Names of Other Underwriters]
---------------
Total
===============
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<PAGE>
EXHIBIT 1.2
FMC CORPORATION
Debt Securities and Warrant Securities
--------------------------------------
UNDERWRITING AGREEMENT
_________, 199_
Morgan Stanley & Co. Incorporated
[Names of Other Co-Managers]
c/o Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Ladies and Gentlemen:
FMC Corporation, a Delaware corporation (the "Company"), proposes to issue
and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") $___________ principal amount of its [Title of Debt Securities]
[(the "[Debt] Securities")] [and warrants to purchase __________ (the "Warrant
Securities," and together with the Debt Securities, the "Securities")]. The
[Debt] Securities are to be issued pursuant to the provisions of a [Senior]
[Subordinated] Indenture dated as of _______, 199_ (the "Indenture") between the
Company and _____________, as Trustee. [The Warrant Securities are to be issued
pursuant to one or more warrant agreements (each hereinafter called a Warrant
Agreement) between the Company and the Warrant Agent identified in such Warrant
Agreement.]
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, which has become effective,
for the registration under the Securities Act of 1933, as amended (the
"Securities Act"), of certain [debt and warrant] securities (the "Shelf
Securities") to be issued from time to time by the Company. The Company
proposes to file with the Commission pursuant to Rule 424 under the Securities
Act a prospectus supplement specifically relating to the Securities and the plan
of distribution thereof and has previously advised you of all further
information with respect to the Company to be set forth therein. The
registration statement, including exhibits, as amended at the date of this
Agreement, is hereinafter referred to as the Registration Statement and the
related prospectus covering the Shelf Securities dated ________, 1995 is
hereinafter referred to as the Basic Prospectus. Any preliminary form of the
Prospectus filed with the Commission pursuant to Rule 424 shall be referred to
as a preliminary prospectus. The Basic Prospectus as supplemented by the
prospectus supplement specifically relating to the Securities,
<PAGE>
including any preliminary prospectus, is hereinafter called the Final
Prospectus. All references to the Registration Statement, the Basic Prospectus,
a preliminary prospectus and the Final Prospectus include the documents
incorporated therein by reference.
I.
The Company hereby agrees to sell to the several Underwriters named in
Schedule I hereto, 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 Securities set forth in Schedule I hereto
opposite their names at _____% of their principal amount [plus accrued interest
and/or original issue discount, if any, from __________, 199_] - the purchase
price.
The Company hereby agrees that, without your prior written consent, it will
not offer, sell, contract to sell or otherwise dispose of any debt securities of
the Company which are substantially similar to the Securities until the business
day following the Closing Date, other than the Securities to be sold hereunder.
[The Company hereby agrees that, without your prior written consent, it
will not offer, sell, contract to sell or otherwise dispose of any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for such Common Stock for a period of ____ days after the date of the initial
public offering of the Securities, other than (i) the Securities to be sold
hereunder and (ii) any shares of such Common Stock sold by the Company upon the
exercise of an option or warrant or the conversion of a security outstanding on
the date hereof.]
II.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Securities as soon after
this Agreement has become effective as in your judgment is advisable. The
Company is further advised by you that the Securities are to be offered to the
public initially at ______% of their principal amount [plus accrued interest
and/or original issue discount, if any, from _________, 199_] - the public
offering price - 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.
III.
Payment for the Securities shall be made by certified or official bank
check or checks payable (or wire transfer) to the order of the Company in
immediately available
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(same day) funds at the office of Winston & Strawn, Chicago, Illinois, at 10:00
A.M., New York time, on _________, 199_, or at such other time on the same or
such other date, not later than _________, 199_, 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 Securities shall be made against delivery to you in New
York City for the respective accounts of the several Underwriters of the
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
Securities to the Underwriters duly paid.
IV.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) (i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission;
(ii) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential
downgrading, 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;
(iii) subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, 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 Final
Prospectus, that, in your judgment, is material and adverse and that makes
it, in your judgment, impracticable to market the Securities on the terms
and in the manner contemplated in the Final Prospectus; and
(iv) you 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 clauses (i) and (ii) above, to the effect that the
representations and warranties of the Company contained herein are true and
correct as of the Closing Date and to the effect that 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
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the Company and its subsidiaries, taken as a whole, from that set forth in
the Final Prospectus.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(b) You shall have received on the Closing Date an opinion of Winston &
Strawn, counsel for the Company, dated the Closing Date, to the effect
that:
(i) the Indenture has been duly authorized, executed and delivered by
the Company, is a valid and binding agreement of the Company and has been
duly qualified under the Trust Indenture Act of 1939, as amended [, and the
Warrant Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company];
(ii) the Securities have been duly authorized and, when executed and
authenticated in accordance with the provisions of the Indenture [and the
Warrant Agreement] and delivered to and paid for by you in accordance with
the terms of this Agreement, will be valid and binding obligations of the
Company and will be entitled to the benefits of the Indenture [and the
Warrant Agreement];
(iii) this Agreement [and the Warrant Agreement] [has] [have] been
duly authorized, executed and delivered by the Company;
(iv) the execution, delivery and performance of this Agreement, the
Securities [, the Warrant Agreement] and the Indenture by the Company, and
the issuance and sale of the Securities by the Company as provided in this
Agreement [, the Warrant Agreement] and the Indenture, will not result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, the certificate of incorporation or by-laws of the Company,
or the Credit Agreement dated as of December __, 1994 among the Company,
the lenders listed therein and _____________________, as Agent (the "Credit
Agreement"), or the Fiscal Agency Agreement dated as of January 16, 1990
between the Company and the Union Bank of Switzerland relating to the 6
3/4% Exchangeable Senior Subordinated Debentures due 2005 (the
"Exchangeable Debentures") [or other specified debt agreements];
(v) no authorization, consent, approval or order of any court or
governmental agency or body in the United States or any state or political
subdivision thereof is required for the issuance, sale or performance of
the Company's obligations with respect to the Securities, in the manner
contemplated by this Agreement, the Securities [, the Warrant Agreement]
and the Indenture, except such as are specified and have been obtained and
such as may be required
4
<PAGE>
by the securities or blue sky laws of the various states in connection with
the purchase and distribution of the Securities by the Underwriters;
(vi) the statements in the Final Prospectus under "___________,"
under "General Description of the Offered Securities," under "Description
of the Debt Securities" [, under "Description of the Warrants to Purchase
Common Stock or Preferred Stock"] [, under "Description of the Warrants to
Purchase Debt Securities"] and in the Registration Statement in Item 15,
insofar as such statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present in all
material respects the information called for with respect to such legal
matters, documents and proceedings;
[(vii) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Final Prospectus
and the issuance of the Securities is not subject to preemptive or other
similar rights;]
[(viii) upon issuance and delivery of the Securities in accordance
with this Agreement [, the Warrant Agreement] and the Indenture, the
Securities shall be convertible into or exercisable for shares of Common
Stock in accordance with the terms of the Securities [, the Warrant
Agreement] and the Indenture; and the shares of Common Stock initially
issuable upon conversion or exercise of the Securities have been duly
authorized and reserved for issuance, and when issued and delivered,
pursuant to the terms of [the Warrant Agreement] [and] the Indenture, will
be validly issued, fully paid and non-assessable;] and
(ix) such counsel is of the opinion that the Registration Statement
and the Final Prospectus and any supplements or amendments thereto (except
for financial statements and schedules and other financial data and that
part of the Registration Statement that constitutes the Form T-1
hereinafter 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.
Such counsel shall also have furnished to you a written statement, in
form and substance satisfactory to you, to the effect that nothing has come
to such counsel's attention that causes them to believe that (except for
financial statements and schedules and other financial data as to which
such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 hereinafter referred
to) the Registration Statement 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 that the Final Prospectus,
as of the Closing Date, contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
5
<PAGE>
statements therein, in light of the circumstances under which they were
made, not misleading.
(c) You shall have received on the Closing Date an opinion of the General
Counsel or Assistant General Counsel for the Company, dated the Closing
Date, to the effect that:
[(i) the shares of Common Stock outstanding prior to the issuance of
the Securities have been duly authorized and are validly issued, fully paid
and non-assessable;]
(ii) the Company is validly existing as a corporation in good
standing under the laws of Delaware and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct
of its business or the 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, and has all corporate power and
authority under its certificate of incorporation, bylaws and the laws of
the State of Delaware to own, lease and operate its properties and conduct
its business as described in the Final Prospectus;
(iii) each Significant Subsidiary (as defined in Regulation S-X
promulgated by the Commission) of the Company is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or the
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 whole;
(iv) neither the Company nor any subsidiary is in violation of its
certificate of incorporation or by-laws or, to the best of such counsel's
knowledge after due inquiry, in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note
or any other evidence of indebtedness or in any indenture, lease, loan
agreement or other instrument governing any indebtedness to which the
Company or any subsidiary is a party or by which the Company or any
subsidiary or their property or claims is bound, except to the extent that
such violation or default would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(v) such counsel is not aware after due inquiry of the Company's
failure to possess or to be in compliance with any franchises, grants,
authorizations, licenses, permits, easements, consents, certificates or
orders required for the conduct of the business of the Company or any
subsidiary, except to the extent that the failure to
6
<PAGE>
so possess or comply would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(vi) except as disclosed in the Final Prospectus, the securities of
each direct or indirect subsidiary of the Company listed on Exhibit 21 to
the Company's most recent Annual Report on Form 10-K which is a Significant
Subsidiary (as defined above) are owned by the Company or a subsidiary of
the Company to the extent described therein free and clear of all liens and
encumbrances and any other adverse claims (other than directors' qualifying
shares and shares of common stock of FMC Gold Company which are
exchangeable for the Exchangeable Debentures);
(vii) the execution, delivery and performance of this Agreement, the
Securities [, the Warrant Agreement] and the Indenture by the Company and
the issuance and sale of the Securities by the Company as provided in this
Agreement [, the Warrant Agreement] and the Indenture, will not result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, the certificate of incorporation of the Company or any
Significant Subsidiary, or any provision of applicable law or
administrative regulation known to such counsel or any agreement or other
instrument known to such counsel binding upon the Company or any subsidiary
and which is material to the Company and its subsidiaries taken as a whole
or any decree of any court known to such counsel applicable to the Company
or any subsidiaries or any of their properties;
(viii) there is no action, suit or proceeding pending or threatened
against or affecting the Company or any of its properties before or by any
court, governmental official, commission, board of other administrative
agency or arbitrator that has a reasonable probability (taking into account
the exhaustion of all appeals) of having a material adverse effect on the
business, operations, properties, consolidated financial condition,
consolidated results of operations or business prospects of the Company,
except as disclosed in the Final Prospectus, or that in any manner
questions the validity of this Agreement, [the Warrant Agreement,] the
Indenture or the Securities;
(ix) such counsel does not know of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company is
subject that is required to be described in the Registration Statement or
the Final Prospectus and is not so described or of any contract or other
document which is required to be described in the Registration Statement or
the Final Prospectus or to be filed as an exhibit to the Registration
Statement that is not described or filed as required; and
(x) such counsel is of the opinion that each document incorporated by
reference in the Registration Statement and the Final Prospectus (except
for
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<PAGE>
financial statements and schedules and other financial data as to which
such counsel need not express any opinion) complied as to form when filed
with the Commission in all material respects with the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and the rules and regulations
of the Commission thereunder.
Such counsel shall also have furnished to you a written statement, in
form and substance satisfactory to you, to the effect that nothing has come
to such counsel's attention that causes him to believe that (except for
financial statements and schedules and other financial data as to which
such counsel need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1 hereinafter referred
to) the Registration Statement at the time it 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 that the Final Prospectus, as of the Closing Date,
contains any untrue statement of a material fact or omits 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 Mayer, Brown
& Platt, counsel for the Underwriters, dated the Closing Date, covering the
matters referred to in subparagraphs (i), (ii), (iii), (vi) (but only as to
the statements in the Final Prospectus under "__________," "General
Description of the Offered Securities," "Description of the Debt
Securities" [, "Description of the Warrants to Purchase Common Stock or
Preferred Stock"] [and "Description of the Warrants to Purchase Debt
Securities"]) and (ix) (but as to the Registration Statement only as of the
date of this Agreement) of paragraph (b) above. Such counsel shall also
have furnished to you a written statement to the same effect as the last
sentence of paragraph (b) above.
With respect to the last sentence of paragraph (c) above, such counsel may
state that his opinion and belief is based upon his participation in the
preparation of the Registration Statement and Final Prospectus and any
amendments or supplements thereto and documents incorporated therein by
reference and review and discussion of the contents thereof, but is without
independent check or verification except as specified. With respect to the last
sentence of paragraph (b) above, Winston & Strawn and Mayer, Brown & Platt may
state that their opinion and belief are based upon their participation in the
preparation of the Registration Statement and Final Prospectus and any
amendments or supplements thereto (but not including documents incorporated
therein by reference) and review and discussion of the contents thereof
(including documents incorporated therein by reference), but is without
independent check or verification except as specified.
8
<PAGE>
(e) You shall have received on the Closing Date a letter dated the Closing
Date, in form and substance satisfactory to you, from KPMG Peat Marwick LLP
[and Ernst & Young LLP], independent public accountants, 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
in the Registration Statement and the Final Prospectus.
V.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) To furnish you, without charge, ____ copies of the Registration
Statement as filed with the Commission (including exhibits thereto and
documents incorporated therein by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the Final Prospectus,
any documents incorporated therein by reference, and any supplements and
amendments thereto as you may reasonably request. The terms "supplement"
and "amendment" or "amend" as used in this Agreement shall include all
documents subsequently filed by the Company with the Commission pursuant to
the Exchange Act that are deemed to be incorporated by reference in the
Final Prospectus.
(b) Before amending or supplementing the Registration Statement or the
Final Prospectus with respect to the Securities, to furnish you a copy of
each such proposed amendment or supplement, and to file no such proposed
amendment or supplement (other than quarterly and annual reports on Forms
10-Q and 10-K covering periods commencing after ________, 199_ or current
reports on Form 8-K covering events occurring after ________, 199_) to
which you reasonably object.
(c) If, during such period after the first date of the public offering of
the Securities and prior to the completion of the distribution of the
Securities, as determined by you, any event shall occur as a result of
which it is necessary to amend or supplement the Final Prospectus in order
to make the statements therein, in the light of the circumstances when the
Final Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Final Prospectus to comply with law,
forthwith to prepare 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 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 Final Prospectus so that the statements in the Final
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Final Prospectus is delivered to a purchaser, be
misleading or so that the Final Prospectus will comply with law.
9
<PAGE>
(d) To endeavor with the assistance of your counsel to qualify the
Securities [and the shares of Common Stock issuable upon conversion or
exercise of Securities] for offer and sale under the securities or Blue Sky
laws of such jurisdictions as you shall reasonably request and to pay all
reasonable expenses (including fees and disbursements of counsel) in
connection with such qualification and in connection with the determination
of the eligibility of the Securities for investment under the laws of such
jurisdictions as you may designate, as well as all filing fees payable in
connection with the review (if any) of the offering of the Securities by
the National Association of Securities Dealers, Inc.; provided, however,
that in connection therewith the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified, to file a general consent to service of process in any
jurisdiction or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise subject.
(e) To make generally available to the Company's security holders as soon
as practicable an earnings statement covering the twelve-month period
ending _________, 199_, that satisfies the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission
thereunder.
[(f) To use its best efforts to have the shares of Common Stock issuable
upon conversion or exercise of Securities listed on each exchange upon
which the Common Stock is listed on the date hereof.]
[(g) To reserve and keep available at all times, free of preemptive
rights, shares of Common Stock for the purpose of enabling the Company to
satisfy any obligations to issue Common Stock upon conversion or exercise
of the Securities.]
VI.
The Company represents and warrants to each Underwriter that (i) each
document filed or to be filed pursuant to the Exchange Act, and incorporated by
reference in the Final Prospectus complied or will comply when so filed in all
material respects with the Exchange Act, and the rules and regulations
thereunder, (ii) the Registration Statement complied when filed in all material
respects with the Securities Act and the rules and regulations of the Commission
thereunder, (iii) each preliminary prospectus 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 and
(iv) the Registration Statement and Final Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) will
comply in all material respects with the Securities Act and the rules and
regulations of the Commission thereunder and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
except that the
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foregoing representations and warranties shall not apply to (a) that part of the
Registration Statement that constitutes the Statement of Eligibility (Form T-1)
under the Trust Indenture Act of 1939 of _____________________________, Trustee
under the Indenture, and (b) statements or omissions in the Registration
Statement, Basic Prospectus or the Final Prospectus based upon information
furnished to the Company in writing by any Underwriter through you expressly for
use therein and (v) the Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida).
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any 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 the Final
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by
any omission or alleged omission to state therein a material fact 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 furnished to the Company in writing by any Underwriter
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 Securities, or any person controlling
such Underwriter, if a copy of the Final 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 Securities to such person, and if the Final
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, claim, damage or liability.
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 each 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, the Final Prospectus, any amendment or supplement
thereto, or any preliminary prospectus.
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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 (hereinafter
called the indemnified party) shall promptly notify the person against whom such
indemnity may be sought (hereinafter called 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 reasonable 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 reasonable 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 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 indemnified
pursuant to the second paragraph of this Article VI and by the Company in the
case of parties indemnified pursuant to the third paragraph of this Article VI.
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 to the extent set forth above 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 second or third paragraph of
this Article VI is, as a matter of applicable law, unavailable to an indemnified
party in respect of any losses, claims, damages or liabilities for which
indemnification is provided 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 and the
Underwriters from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the
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relative fault of the Company and of the Underwriters 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 and the Underwriters shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(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 Final Prospectus, bear to the aggregate
public offering price of the Securities. The relative fault of the Company and
the Underwriters 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 Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VI 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 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 VI, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
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 Underwriters' obligations to
contribute pursuant to this Article VI are several in proportion to the
respective principal amount of Securities purchased by each Underwriter and not
joint.
The indemnity and contribution agreements contained in this Article VI 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 other person controlling the
Company and (iii) acceptance of and payment for any of the Securities.
13
<PAGE>
VII.
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 or the National Association of Securities
Dealers, Inc., (ii) trading of the Securities or the Common Stock 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 major hostilities or any
significant change in financial markets or any calamity or crises 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
Securities substantially on the terms and in the manner contemplated in the
Final Prospectus. Any such termination shall be without liability on the part
of any Underwriter or the Company.
VIII.
This Agreement shall become effective upon execution and delivery hereof by
the parties hereto.
If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase Securities that it or they have agreed to purchase hereunder
on such date, and the aggregate principal amount of 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 Securities
to be purchased on such date, the other Underwriters shall be obligated
severally in the proportions that the principal amount of Securities set forth
opposite their respective names in Schedule I bears to the principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as you may specify, to purchase the 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 Securities that any Underwriter has agreed to purchase pursuant to Article I
be increased pursuant to this Article VIII by an amount in excess of one-ninth
of such principal amount of Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Securities and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such
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
14
<PAGE>
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 Final
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 reasonable fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with this
Agreement or the offering contemplated hereunder.
The Underwriters agree to advise the Company promptly of the completion of
the distribution of the Securities.
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.
15
<PAGE>
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
Very truly yours,
FMC CORPORATION
By:_____________________________
[Name]
[Title]
Accepted, _________, 199_
MORGAN STANLEY & CO. INCORPORATED
[Names of Other Co-Managers]
Acting on behalf of themselves
and the several Underwriters
named in Schedule I hereto
By Morgan Stanley & Co. Incorporated
By:__________________________
[Name]
[Title]
16
<PAGE>
SCHEDULE I
Principal Amount Amount of
of Securities Warrants
Underwriter to be Purchased to be Purchased
- ----------- ---------------- ---------------
Morgan Stanley & Co. Incorporated $__________ $__________
[Names of Other Underwriters] __________ __________
Total
17
<PAGE>
EXHIBIT 4.5
================================================================================
FMC CORPORATION
AND
HARRIS TRUST AND SAVINGS BANK
Trustee
______________________
Senior Debt Securities
_______________________
INDENTURE
Dated as of _________, 1995
_______________________
================================================================================
<PAGE>
CROSS REFERENCE SHEET*
between
Provisions of Sections 310 through 318(a) inclusive of the Trust
Indenture Act of 1939, as amended, and the Indenture dated as of ______, 1995
between FMC Corporation and Harris Trust and Savings Bank, as Trustee.
SECTION OF ACT SECTION OF INDENTURE
- ---------------- ------------------------
[S] [C]
310(a)(1)....... 6.10
310(a)(2)....... 6.10
310(a)(3)....... N/A
310(a)(4)....... N/A
310(a)(5)....... 6.10
310(b).......... 6.10
310(c).......... N/A
311(a).......... 6.11
311(b).......... 6.11
311(b)(2)....... 6.11
311(c).......... N/A
312(a).......... 4.1
312(b).......... 4.2(b)
312(c).......... 4.2(c)
313(a).......... 6.6
313(b).......... 6.6
313(c).......... 6.6
313(d).......... 6.6
314(a).......... 4.3
314(b).......... N/A
314(c)(1)....... 2.4 and 11.5
314(c)(2)....... 2.4 and 11.5
314(c)(3)....... N/A
314(d).......... N/A
314(e).......... 11.5
315(a).......... 6.1(b)
315(b).......... 6.5
315(c).......... 6.1(a)
315(d)(1)....... 6.1(b)(1) and (2)
315(d)(2)....... 6.1(c)(2)
315(d)(3)....... 6.1(c)(3)
315(e).......... 5.10
316(a)(1)(A).... 5.8
316(a)(1)(B).... 5.9
316(a)(2)....... N/A
316(b).......... 5.6
316(c).......... 2.7
317(a)(1)....... 5.2
317(a)(2)....... 5.2
317(b).......... 3.2 and 3.3
318(a).......... 11.7
<PAGE>
* This cross reference sheet shall not, for any purpose, be deemed to be
a part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act of 1939, as amended, which provides that the provisions of
Sections 310 through 317 of such Act are a part of and govern every qualified
indenture, whether or not physically contained therein.
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TABLE OF CONTENTS
PARTIES..................................................................... 1
RECITALS.................................................................... 1
Authorization of Indenture................................................ 1
Compliance with Legal Requirements........................................ 1
Purpose of and Consideration for Indenture................................ 1
A R T I C L E O N E
DEFINITIONS.................................................................. 1
SECTION 1.1 Certain Terms Defined....................................... 1
Attributable Debt.................................................. 1
Board of Directors................................................. 2
Business Day....................................................... 2
Commission......................................................... 2
Company............................................................ 2
Company Notice..................................................... 2
Consolidated Net Tangible Assets................................... 2
Corporate Trust Office............................................. 3
Covenant defeasance................................................ 3
Defaulted interest................................................. 3
Depository......................................................... 3
Depository Security................................................ 3
defeasance......................................................... 3
Dollar............................................................. 3
Event of Default................................................... 3
Funded Debt........................................................ 4
Government Obligations............................................. 4
Holder,............................................................ 4
Holder of Securities,.............................................. 4
Indenture.......................................................... 4
Officers' Certificate.............................................. 4
Opinion of Counsel................................................. 4
Original issue date................................................ 4
Outstanding........................................................ 5
Paying Agent....................................................... 5
Person............................................................. 5
person............................................................. 5
Place of Payment,.................................................. 6
Principal.......................................................... 6
Principal Property................................................. 6
Responsible Officer................................................ 6
Restricted Subsidiary.............................................. 6
Sale and leaseback transaction..................................... 7
Security........................................................... 7
Securities......................................................... 7
Series............................................................. 7
Series of Securities............................................... 7
Subsidiary......................................................... 7
Trustee............................................................ 7
Trust Indenture Act of 1939........................................ 7
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TIA..................................................................... 7
United States of America................................................ 7
vice president.......................................................... 7
A R T I C L E T W O
SECURITIES.................................................................. 8
SECTION 2.1 Forms Generally.............................................. 8
SECTION 2.2 Form of Trustee's Certificate of Authentication.............. 8
SECTION 2.3 Amount Unlimited; Issuable in Series......................... 9
SECTION 2.4 Authentication and Delivery of Securities.................... 11
SECTION 2.5 Execution of Securities...................................... 12
SECTION 2.6 Certificate of Authentication................................ 12
SECTION 2.7 Denomination and Date of Securities; Payments
of Interest.................................................. 13
SECTION 2.8 Registration, Transfer and Exchange.......................... 15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.... 16
SECTION 2.10 Cancellation of Securities; Destruction Thereof.............. 17
SECTION 2.11 Temporary Securities......................................... 17
SECTION 2.12 Securities in Global Form.................................... 18
A R T I C L E T H R E E
COVENANTS OF THE COMPANY.................................................... 19
SECTION 3.1 Payment of Principal and Interest............................ 19
SECTION 3.2 Offices for Payment, etc..................................... 19
SECTION 3.3 Paying Agents................................................ 19
SECTION 3.4 Written Statement to Trustee................................. 20
SECTION 3.5 Limitation Upon Liens........................................ 20
SECTION 3.6 Limitation Upon Sales and Leasebacks......................... 23
SECTION 3.7 Waiver of Certain Covenants.................................. 24
SECTION 3.8 Seniority of Securities...................................... 25
A R T I C L E F O U R
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE........... 25
SECTION 4.1 Company to Furnish Trustee Information as to
Names and Addresses of Securityholders....................... 25
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists........ 26
SECTION 4.3 Reports by the Company....................................... 27
A R T I C L E F I V E
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT............. 28
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default............................................ 28
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SECTION 5.2 Collection of Indebtedness By Trustee; Trustee
May Prove Debt.............................................. 30
SECTION 5.3 Application of Proceeds..................................... 32
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings......... 33
SECTION 5.5 Limitations on Suits by Securityholders..................... 33
SECTION 5.6 Unconditional Right of Securityholders to Institute
Certain Suits............................................... 34
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default....................................... 34
SECTION 5.8 Control by Securityholders.................................. 34
SECTION 5.9 Waiver of Past Defaults..................................... 35
SECTION 5.10 Right of Court to Require Filing of Undertaking
to Pay Costs................................................ 35
SECTION 5.11 Suits for Enforcement....................................... 36
A R T I C L E S I X
CONCERNING THE TRUSTEE...................................................... 36
SECTION 6.1 Duties of Trustee........................................... 36
SECTION 6.2 Rights of Trustee........................................... 37
SECTION 6.3 Individual Rights of Trustee................................ 39
SECTION 6.4 Trustee's Disclaimer........................................ 39
SECTION 6.5 Notice of Defaults.......................................... 39
SECTION 6.6 Reports by Trustee to Holders............................... 39
SECTION 6.7 Compensation and Indemnity.................................. 40
SECTION 6.8 Replacement of Trustee...................................... 41
SECTION 6.9 Successor Trustee by Merger................................. 41
SECTION 6.10 Eligibility; Disqualification............................... 42
SECTION 6.11 Preferential Collection of Claims Against Company........... 42
A R T I C L E S E V E N
CONCERNING THE SECURITYHOLDERS.............................................. 42
SECTION 7.1 Evidence of Action Taken by Securityholders................. 42
SECTION 7.2 Proof of Execution of Instruments........................... 42
SECTION 7.3 Holders to Be Treated as Owners............................. 42
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding.......... 43
SECTION 7.5 Right of Revocation of Action Taken......................... 43
A R T I C L E E I G H T
SUPPLEMENTAL INDENTURES..................................................... 44
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders............................................. 44
SECTION 8.2 Supplemental Indentures With Consent of
Securityholders............................................. 45
SECTION 8.3 Effect of Supplemental Indenture............................ 46
SECTION 8.4 Documents to Be Given to Trustee............................ 46
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SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures..................................... 46
A R T I C L E N I N E
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.................................. 47
SECTION 9.1 Company May Consolidate, etc. on Certain Terms............. 47
SECTION 9.2 Successor Corporation Substituted.......................... 47
SECTION 9.3 Opinion of Counsel to Trustee.............................. 48
A R T I C L E T E N
SATISFACTION AND DISCHARGE OF INDENTURE:
UNCLAIMED MONEYS.......................................................... 48
SECTION 10.1 Satisfaction and Discharge of Indenture..................... 48
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities....................................... 52
SECTION 10.3 Repayment of Moneys Held by Paying Agent.................... 52
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and
Paying Agent................................................ 52
SECTION 10.5 Reinstatement of Company's Obligations...................... 53
A R T I C L E E L E V E N
MISCELLANEOUS PROVISIONS.................................................... 53
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Company Exempt from Individual Liability....... 53
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders................................. 53
SECTION 11.3 Successors and Assigns of Company Bound by Indenture........ 54
SECTION 11.4 Notices and Demands on Company, Trustee and
Securityholders............................................. 54
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein.......................... 54
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays............. 56
SECTION 11.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939................................. 56
SECTION 11.8 Illinois Law to Govern...................................... 56
SECTION 11.9 Counterparts................................................ 56
SECTION 11.10 Effect of Headings; Gender.................................. 56
A R T I C L E T W E L V E
REDEMPTION OF SECURITIES AND SINKING FUNDS.................................. 56
SECTION 12.1 Applicability of Article.................................... 56
SECTION 12.2 Notice of Redemption; Partial Redemptions................... 56
SECTION 12.3 Payment of Securities Called for Redemption................. 58
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SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption................................... 59
SECTION 12.5 Mandatory and Optional Sinking Fund........................ 59
SECTION 12.6 Repayment at the Option of the Holder...................... 62
SECTION 12.7 Conversion Arrangement on Call for Redemption.............. 62
A R T I C L E T H I R T E E N
CONVERSION OF SECURITIES.................................................... 63
SECTION 13.1 Applicability of Article................................... 63
SECTION 13.2 Right of Holders to Convert Securities into
Common Shares.............................................. 63
SECTION 13.3 Issuance of Common Shares on Conversions................... 64
SECTION 13.4 No Payment or Adjustment for Interest or Dividends......... 65
SECTION 13.5 Adjustment of Conversion Price............................. 66
SECTION 13.6 No Fractional Shares to be Issued.......................... 70
SECTION 13.7 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Conveyance................................. 70
SECTION 13.8 Notice to Holders of the Securities of a Series Prior
to Taking Certain Types of Action.......................... 71
SECTION 13.9 Covenant to Reserve Shares for Issuance on
Conversion of Securities................................... 72
SECTION 13.10 Compliance with Governmental Requirements.................. 72
SECTION 13.11 Payment of Taxes upon Certificates for Shares
Issued upon Conversion..................................... 72
SECTION 13.12 Trustee's Duties with Respect to Conversion
Provisions................................................. 73
SECTION 13.13 Conversion of Securities Into Preferred Stock.............. 73
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<PAGE>
THIS INDENTURE, dated as of ___________, 1995 between FMC CORPORATION,
a Delaware corporation (the "Company"), and HARRIS TRUST AND SAVINGS BANK, an
Illinois banking corporation (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issue from time to time
of its unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued in one or more Series; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually agreed for the equal and proportionate
benefit of the Holders from time to time of the Securities or of Series thereof
as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939, as
amended, or the definitions of which in the Securities Act of 1933, as amended,
are referred to in the Trust Indenture Act of 1939, as amended, including terms
defined therein by reference to the Securities Act of 1933, as amended (except
as herein otherwise expressly provided or unless the context otherwise clearly
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole, as supplemented and amended
from time to time, and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"Attributable Debt" shall mean, as of any date upon which a
determination of the amount thereof shall be computed, an amount
<PAGE>
determined by multiplying the greater, at the time a sale and leaseback
transaction was entered into, of (i) the fair value of the property, plant or
facility subject to such arrangement (as determined by the Company) or (ii) the
net proceeds of the sale of such property, plant or facility to the lender or
investor, by a fraction of which the numerator shall be the unexpired initial
term of the lease of such real property as of the date of determination of such
computation and of which the denominator shall be the full initial term of such
lease. Attributable Debt shall not include any such arrangement for financing
air, water or noise pollution control facilities or sewage or solid waste
disposal facilities or involving industrial development bonds which are tax
exempt pursuant to Section 103 of the United States Internal Revenue Code, as
amended (or which receive similar tax treatment under any subsequent amendments
thereto or successor laws thereof).
"Board of Directors" means either the Board of Directors of the
Company or any duly authorized committee of that Board or any duly authorized
committee created by that Board.
"Business Day" means, except as may otherwise be provided in the form
of Securities of any particular Series, with respect to any Place of Payment or
place of publication, any day, other than a Saturday or Sunday, or a day on
which banking institutions are authorized or required by law or regulation to
close in that Place of Payment, place of publication or where the principal
corporate trust office of the Trustee is located.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution and delivery of this Indenture
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.
"Common Shares" means the shares of common stock, par value $0.10 per
share, of the Company as they exist on the date of this Indenture, or any other
shares of capital stock of the Company into which such shares shall be
reclassified or changed.
"Company" means FMC Corporation, a Delaware corporation, 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 Notice" means the confirmation of the Company, signed by an
officer, received by the Trustee, of the terms of the issuance of any
Securities.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current
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<PAGE>
liabilities (excluding any thereof constituting Funded Debt by reason of being
extendible or renewable), and (b) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles, all
as set forth on the books and records of the Company and its consolidated
subsidiaries and computed in accordance with generally accepted accounting
principles.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Indenture
is located at 311 West Monroe Street, Chicago, Illinois 60606.
"covenant defeasance" has the meaning specified in Section 10.1(B).
"defaulted interest" has the meaning specified in Section 2.7.
"Depository" shall mean, with respect to Securities of any Series for
which the Company shall determine that such Securities will be issued as a
Depository Security, The Depository Trust Company, New York, New York, or
another clearing agency or any successor registered under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation,
which, in each case, shall be designated by the Company pursuant to Sections 2.3
and 2.12.
"Depository Security" shall mean, with respect to any Series of
Securities, a Security executed by the Company and authenticated and delivered
by the Trustee to the Depository or pursuant to the Depository's instruction,
all in accordance with this Indenture and pursuant to a resolution of the Board
of Directors as contemplated by Section 2.3, which (i) shall be registered as to
principal and interest in the name of the Depository or its nominee and (ii)
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such Series.
"defeasance" has the meaning specified in Section 10.1(B).
"Dollar" means the coin or currency of the United States of America
which as of the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Funded Debt" means all indebtedness, whether or not evidenced by a
bond, debenture, note or similar instrument or agreement, for the repayment of
money borrowed, having a maturity
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<PAGE>
of more than 12 months from the date of its creation or having a maturity of
less than 12 months from the date of its creation but by its terms being
renewable or extendible beyond 12 months from such date at the option of the
borrower. For the purpose of determining "Funded Debt" of any corporation,
there shall be excluded any particular indebtedness if, on or prior to the
maturity thereof, there shall have been deposited with the proper depository in
trust the necessary funds for the payment, redemption or satisfaction of such
indebtedness.
"Government Obligations" means, unless otherwise specified pursuant
to Section 2.3, securities which are (i) direct obligations of the United States
government or (ii) obligations of a Person controlled or supervised by, or
acting as an agency or instrumentality of, the United States government, the
payment of which obligations is unconditionally guaranteed by such government,
and which, in either case, are full faith and credit obligations of such
government, and which are not callable or redeemable at the option of the issuer
thereof.
"Holder," "Holder of Securities," "Registered Holder,"
"Securityholder" or other similar terms mean the Person in whose name at the
time a particular Security is registered in the Security register.
"Indenture" means this instrument as originally executed or as it may
from time to time be amended or supplemented as herein provided, as so amended
or supplemented or both, and shall include the forms and terms of particular
Series of Securities established as contemplated by Section 2.3.
"Officers' Certificate" means a certificate signed on behalf of the
Company by the chairman of the Board of Directors or the vice chairman or the
president or any vice president and by the treasurer, the controller, any
assistant treasurer, the secretary or any assistant secretary of the Company and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 11.5.
"Opinion of Counsel" means a written opinion of legal counsel who may
be an employee of or counsel to the Company and who shall be reasonably
acceptable to the Trustee. Each Opinion of Counsel shall include the statements
provided for in Section 11.5, if and to the extent required hereby.
"Original issue date" of any Security (or portion thereof) means the
date set forth as such on such Security.
"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 thereof pursuant to Section 5.1.
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<PAGE>
"Outstanding," when used with reference to Securities, shall, subject
to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of
which moneys in the necessary amount and in the required currency shall
have been deposited in trust with the Trustee or with any Paying Agent
(other than the Company) or shall have been set aside, segregated and held
in trust by the Company for the holders of such Securities (if the Company
shall act as its own Paying Agent), provided that if such securities, or
portions thereof, are to be redeemed prior to the maturity thereof, notice
of such redemption shall have been given as herein provided, or provision
satisfactory to the Trustee shall have been made for giving such notice;
(c) Securities in substitution for which other Securities shall have
been authenticated and delivered, or which shall have been paid, pursuant
to the terms of Section 2.9 (except with respect to any such Security as to
which proof satisfactory to the Trustee and the Company is presented that
such Security is held by a person in whose hands such Security is a legal,
valid and binding obligation of the Company);
(d) Securities converted into Common Shares or Preferred Shares in
accordance with or as contemplated by this Indenture; and
(e) Securities with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Ten.
"Paying Agent" means any Person (which may include the Company)
authorized by the Company to pay the principal of or interest, if any, on any
Security on behalf of the Company.
"Person" or "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 any
Series, means the place or places where the principal of and interest, if any,
on the Securities of that Series are payable as specified pursuant to Section
3.2.
"Preferred Shares" means, any shares of capital stock issued by the
Company that are entitled to a preference or priority
-5-
<PAGE>
over the Common Shares upon any distribution of the Company's assets, whether by
dividend or upon liquidation.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"Principal Property" means any manufacturing or processing plant or
facility (other than any pollution control facility) or any mineral producing
property which is located within the continental United States of America and is
owned by the Company or any Subsidiary, whether owned at or acquired after the
date hereof, the gross book value on the books of the Company or such Subsidiary
(without deduction of any depreciation reserve) of which on the date as of which
the determination is being made exceeds 1% of the Consolidated Net Tangible
Assets, except (i) any such property, plant or facility which the Board of
Directors by resolution declares is not of material importance to the total
business conducted by the Company and its Restricted Subsidiaries as an
entirety, (ii) any portion of such property, plant or facility which the Board
of Directors by resolution declares is not of material importance to the total
business conducted by the Company and its Restricted Subsidiaries as an entirety
or (iii) any such property, plant or facility which is financed by industrial
development bonds which are tax exempt pursuant to Section 103 of the United
States Internal Revenue Code, as amended (or which receive similar tax treatment
under any subsequent amendments thereto or successor laws thereof).
"Responsible Officer" when used with respect to the Trustee shall
mean any officer within the corporate trust department (or any successor
department) of the Trustee including any vice president, assistant vice
president, assistant secretary, senior trust officer, trust officer or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred at the
Corporate Trust Office because of his or her knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary (other than FMC Gold
Company) (i) substantially all the property of which is located within the
continental United States of America or Canada and (ii) which owns or leases a
Principal Property.
"Sale and leaseback transaction" has the meaning specified in
Section 3.6.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any securities
authenticated and delivered under this Indenture.
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"Series" or "Series of Securities" means all Securities of a similar
tenor authorized by a particular resolution of the Board of Directors.
"Subsidiary" means (i) a corporation, a majority of whose capital
stock with voting power, under ordinary circumstances, to elect directors is, at
the date of determination, directly or indirectly owned by the Company, by one
or more Subsidiaries of the Company or by the Company and one or more
Subsidiaries of the Company, (ii) a partnership in which the Company or a
Subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a Subsidiary of the Company or the Company
and one or more Subsidiaries of the Company, directly or indirectly, at the date
of determination, has (x) at least a majority ownership interest or (y) the
power to elect or direct the election of a majority of the directors or other
governing body of such person.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof until a successor Trustee shall have become such pursuant to
the provision hereof, and thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any Series shall
mean the Trustee with respect to Securities of that Series.
"Trust Indenture Act of 1939" or "TIA" (except as otherwise provided
in Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended, as
in force at the date as of which this Indenture was originally executed.
"United States of America" means the United States of America
(including the states and the District of Columbia), its territories,
possessions, the Commonwealth of Puerto Rico and other areas subject to its
jurisdiction.
"vice president" when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title of "vice president."
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each Series shall be
substantially in such form (including temporary or definitive global form) as
shall be established by or pursuant to a resolution of the Board of Directors or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture (the provisions of which shall be
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appropriate to reflect the terms of the Series of Securities represented
thereby) and may have imprinted or otherwise reproduced thereon such legend or
legends, not inconsistent with the provisions of this Indenture, as may be
required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities as
evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the Series designated herein and
referred to in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK, as
Trustee
By:_______________________________
Authorized Signatory
or
HARRIS TRUST AND SAVINGS BANK, as
Trustee
By:______________________________,
as Authentication Agent
By:_______________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more Series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any Series,
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(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from all other Securities issued
by the Company);
(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 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than 100% of their principal amount, the percentage of
their principal amount at which the Securities of the Series will be
offered for sale to the public;
(4) the date or dates on which the principal of the Securities of the
Series is payable or the method of determination thereof;
(5) the rate or rates (which may be fixed or variable), or the method
or methods of determination thereof, at which the Securities of the Series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable and the record dates for the determination of Holders to whom
interest is payable;
(6) the place or places where the principal and interest, if any, on
Securities of the Series shall be payable (if other than as provided in
Section 3.2);
(7) the price or prices at which, the period or periods within which
and the terms and conditions upon which Securities of the Series may be
redeemed, in whole or in part, at the option of the Company;
(8) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 5.1
or provable in bankruptcy pursuant to Section 5.2;
(9) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the Series whether pursuant to any sinking fund or
analogous provisions or pursuant to other provisions set forth therein or
at the option of a Holder thereof and the price or prices at which and the
period or periods within which and the terms and conditions upon which
Securities of the Series shall be redeemed, purchased or repaid, in whole
or in part;
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(10) if other than denominations of $1,000, and any integral multiple
thereof, the denominations in which Securities of the Series shall be
issuable;
(11) the form of the Securities, including such legends as required by
law or as the Company deems necessary or appropriate and the form of any
temporary global security which may be issued;
(12) whether, and under what circumstances, the Securities of any
Series shall be convertible into Securities of any other Series and, if so,
the terms and conditions upon which such conversion will be effected
including the initial conversion price or rate, the conversion period and
other provisions in addition to or in lieu of those described herein;
(13) if other than the Trustee, any trustees, authenticating or Paying
Agents, transfer agents or registrars or any other agents with respect to
the Securities of such Series;
(14) if the Securities of such Series do not bear interest, the
applicable dates for purposes of Section 4.1 hereof;
(15) whether the Securities of such Series are to be issuable in whole
or in part in the form of one or more Depository Securities, and, in such
case, the Depository for such Securities;
(16) the application, if any, of either or both of Section 10.1(B)(ii)
or 10.1(B)(iii) to the Securities of the Series;
(17) the obligation, if any, of the Company to permit the conversion
of the Securities of such Series into the Company's Common Shares or
Preferred Shares (and the class thereof), as the case may be, and the terms
and conditions upon which such conversion shall be effected (including,
without limitation, the initial conversion price or rate, the conversion
period, any adjustment of the applicable conversion price or rate and any
requirements relative to reservation of shares for purposes of conversion;
and
(18) any other terms or conditions upon which the Securities of the
Series are to be issued (which terms shall not be inconsistent with the
provisions of this Indenture).
All Securities of any one Series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto. All
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Securities of any one Series need not be issued at the same time, and unless
otherwise provided, a Series may be reopened for issuances of additional
Securities of such Series.
SECTION 2.4 Authentication and Delivery of Securities. At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series executed by the Company to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
make available for delivery such Securities to or upon the written order of the
Company, signed by both (a) the chairman of its Board of Directors, or its
president or any vice president and (b) its treasurer or any assistant
treasurer, secretary or any assistant secretary without any further action by
the Company. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive and (subject to Section 6.1) shall be fully
protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors
relating to such Series, in each case certified by the secretary or an
assistant secretary of the Company;
(2) a supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and terms of the
Securities of such Series as required pursuant to Sections 2.1 and 2.3,
respectively, and prepared in accordance with Section 11.5; and
(4) an Opinion of Counsel, prepared in accordance with Section 11.5,
which shall state
(a) that the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors
or by a supplemental indenture as permitted by Sections 2.1 and 2.3 in
conformity with the provisions of this Indenture and in conformity
with such resolution; and
(b) that such Securities have been duly authorized, and, when
authenticated and delivered by the Trustee and issued by the Company
in the manner and subject to any conditions specified in such opinion
of counsel, will constitute valid and binding obligations of the
Company enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or other laws relating to or affecting the enforcement
of creditors' rights generally and by general equitable principles,
regardless of whether such enforceability is considered in a
proceeding in equity or at law.
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The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under this Indenture in a manner not reasonably acceptable to the
Trustee.
SECTION 2.5 Execution of Securities. The Securities shall be signed
on behalf of the Company by both (a) the chairman of its Board of Directors or
its president or any vice president and (b) its treasurer or any assistant
treasurer or its secretary or any assistant secretary, under its corporate seal
which may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of such officers. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited and executed by the Trustee by the manual signature of one
of its authorized signatories shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement (which need not
comply with Section 11.5 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 the Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of the Indenture.
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SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities shall be issuable in denominations as shall be
specified as contemplated by Section 2.3. In the absence of any such
specification with respect to the Securities of any Series, Securities shall be
issuable in denominations of $1,000 and any integral multiple thereof, and
interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Securities shall be numbered, lettered, or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Company
executing the same may determine with the approval of the Trustee as evidenced
by the execution and authentication thereof.
Each Security shall be dated the date of its authentication.
Unless otherwise provided as contemplated by Section 2.3, interest on
any Security which is payable, and is punctually paid or duly provided for, on
any interest payment date shall be paid to the person in whose name that
Security (or one or more predecessor securities) is registered at the close of
business on the regular record date for the payment of such interest.
The term "record date" as used with respect to any interest payment
date (except for a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular Series, or,
if no such date is so specified, the close of business on the fifteenth day
preceding such interest payment date, whether or not such record date is a
Business Day.
Any interest on any Security of any Series which is payable, but is
not punctually paid or duly provided for, on any interest payment date (called
"defaulted interest" for purposes of this Section) shall forthwith cease to be
payable to the Registered Holder on the relevant record date by virtue of his
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 clause (2) below:
(1) The Company may elect to make payment of any defaulted interest to
the persons in whose names any such Securities (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
Security of such Series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
defaulted interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed
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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 in respect of Securities of such Series which shall
be not more than 15 nor 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 thereof to be mailed, first class
postage prepaid, to each Registered Holder 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 in respect of Securities of such Series shall be paid to
the persons in whose names such Securities (or their respective predecessor
Securities) are registered on such special record date and such defaulted
interest shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any defaulted interest on the
Securities of any Series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of that
Series 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 payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon 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 2.8 Registration, Transfer and Exchange. The Company will
cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.2 a register or registers in which, subject to such
reasonable regulations as it may prescribe, the Company will provide for the
registration and the registration of the transfer of, the Securities. The
Trustee is hereby appointed Security registrar for purposes of registering, and
registering transfers of, the Securities.
Upon surrender for registration of transfer of any Security of any
Series at any such office or agency to be maintained for the purpose as provided
in Section 3.2, the Company shall execute and the Trustee shall authenticate and
make available for delivery in the name of the transferee or transferees a new
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Security or Securities of the same Series and of a like tenor and containing the
same terms (other than the principal amount thereof, if more than one Security
is executed, authenticated and delivered with respect to any security so
presented, in which case the aggregate principal amount of the executed,
authenticated and delivered Securities shall equal the principal amount of the
Security presented in respect thereof) and conditions.
All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by 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.
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 transfer or exchange of Securities, other than exchanges pursuant to
Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a 15-day period prior to the day of mailing
of the relevant notice of redemption or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except, in
the case of any Security to be redeemed in part, the portion thereof not
redeemed.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated
or defaced or be destroyed, lost or stolen, the Company shall execute, and upon
the written request of any officer of the Company, the Trustee shall
authenticate and make available for delivery a new Security of the same Series
and of like tenor and principal amount and with the same terms and conditions,
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated or defaced Security or in lieu of and substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Company and to the Trustee and to any
agent of the Company or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and,
in every case of destruction, loss or theft, evidence to their satisfaction of
the destruction, loss or theft of such Security and of the ownership thereof.
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Upon the issuance of any substitute Security, 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. In case any Security
which has matured or is about to mature or has been called for redemption in
full shall become mutilated or defaced or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
or defaced Security); provided, however, that unless otherwise provided pursuant
to Section 2.3, the applicant for such payment shall furnish to the Company and
to the Trustee and any agent of the Company or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee and any agent of the Company or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security of any Series issued pursuant to the
provisions of this Section by virtue of the fact that any Security is destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such Series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, shall, if surrendered to the Company or any agent of the Company or the
Trustee, be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu
thereof, except as expressly permitted by any of the provisions of this
Indenture. The Company may at any time deliver 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. The Trustee shall return cancelled Securities held by it to the
Company. If the Company shall acquire any of the Securities, such acquisition
shall not
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operate as a redemption or satisfaction of the indebtedness represented by such
Securities unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any Series, the Company may execute and the Trustee
shall authenticate and make available for delivery temporary Securities for such
Series (printed, lithographed, typewritten or otherwise reproduced, in each case
in form reasonably acceptable to the Trustee). Temporary Securities of any
Series may be issued of any authorized denomination, and substantially in the
form of the definitive Securities of such Series but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company with the reasonable concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed by
the Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Company shall execute and shall
furnish definitive securities of such Series and thereupon temporary Securities
of such Series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Company for that purpose pursuant to
Section 3.2, and the Trustee shall authenticate and make available for delivery
in exchange for such temporary Securities of such Series a like aggregate
principal amount of definitive Securities of the same Series of authorized
denominations. Until so exchanged, the temporary Securities of any Series shall
be entitled to the same benefits under this Indenture as definitive Securities
of such Series.
SECTION 2.12 Securities in Global Form. If Securities of a Series
are issuable in global form, as specified as contemplated by Section 2.3, then,
notwithstanding clause (10) of Section 2.3 and the provisions of Section 2.7,
such Security shall represent such of the Outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby may 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 2.4. Subject to the provisions of Section 2.4, the
Trustee shall deliver and redeliver any Security in definitive global form in
the manner and upon written instructions given by the Person or Persons
specified therein or in the applicable company order. If a company order
pursuant to Section 2.4 has been, or simultaneously is, delivered,
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any instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 11.5 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.6 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 11.5 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 2.6.
Notwithstanding the provisions of Sections 2.3 and 2.7, unless
otherwise specified as contemplated by Section 2.3, payment of principal of and
any interest on any Security in definitive global form shall be made to the
Person or Persons specified therein.
Except as provided in the preceding paragraph, the Company, the
Trustee and any agent of the Company and the Trustee shall treat a Person as the
Holder of such principal amount of outstanding Securities represented by a
definitive global Security as shall be specified in a written statement of the
Holder of such definitive global Security.
ARTICLE THREE
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest. The Company covenants
and agrees for the benefit of each particular Series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such Series in accordance with the terms of the
Securities of such Series and this Indenture.
SECTION 3.2 Offices for Payment, etc. So long as any of the
Securities remain outstanding, the Company will maintain the following for each
Series: an office or agency (a) where the Securities may be presented for
payment or conversion, (b) where the Securities may be presented for
registration of transfer and for exchange as in this Indenture provided, and (c)
where notices and demands to or upon the Company in respect of the Securities or
of this Indenture may be served. The Company will give to the Trustee written
notice of the location of any such office or agency and of any change of
location thereof. In case the Company shall fail to so designate or maintain
any such office or agency or shall fail to give such notice of the location or
of any change in the location thereof, presentations and demands may be made and
notices may be served at the Corporate Trust Office. Unless otherwise
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specified pursuant to Section 2.3, the Trustee is hereby appointed Paying Agent.
SECTION 3.3 Paying Agents. Whenever the Company shall appoint a
Paying Agent other than the Trustee with respect to the Securities of any
Series, it will cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such Agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such Agent for the
payment of the principal of or interest on the Securities of such Series
(whether such sums have been paid to it by the Company or by any other obligor
on the Securities of such Series) in trust for the benefit of the Holders of the
Securities of such Series or of the Trustee, and upon the occurrence of an Event
of Default and upon the written request of the Trustee, pay over all such sums
received by it to the Trustee, and
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such Series when the same
shall be due and payable.
The Company will, on or prior to each due date of the principal of or
interest on the Securities of such Series, deposit in a timely manner with the
Paying Agent a sum sufficient to pay such principal or interest so becoming due,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such Series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such Series a sum
sufficient to pay such principal or interest so becoming due. The Company will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such Series by the Company or any Paying Agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
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SECTION 3.4 Written Statement to Trustee. The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, a brief certificate (which need not comply with
Section 11.5) from the principal executive, financial or accounting officer of
the Company as to his or her knowledge, after due inquiry, of the Company's
compliance with all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of grace or requirement
of notice provided under the Indenture).
SECTION 3.5 Limitation Upon Liens. So long as any Securities of any
Series have been issued and remain Outstanding, the Company will not itself, and
will not permit any Restricted Subsidiary to, incur, issue, assume or guarantee
any indebtedness, whether or not evidenced by notes, bonds, debentures or other
similar instruments for money borrowed (being hereinafter in this Section 3.5
and Section 3.6 called "Debt"), secured by pledge of, or mortgage or other lien
(including lease purchase, installment purchase and other title retention
financing arrangements) on or in respect of any Principal Property owned by the
Company or any Restricted Subsidiary, or on any shares of stock or Debt of any
Restricted Subsidiary (such pledges, mortgages and other liens being hereinafter
in this Section 3.5 and in Section 3.6 called "Liens"), without effectively
providing that the Securities (together with, if the Company shall so determine,
any other Debt of the Company or such Restricted Subsidiary then existing or
thereafter created which is not subordinate to the Securities) shall be secured
equally and ratably with (or prior to) such secured Debt (for the purpose of
providing such equal and ratable security, the principal amount of any
Securities which are Original Issue Discount Securities shall mean and shall not
be less than that principal amount which could be declared to be due and payable
pursuant to Section 5.1 on the date of the making of such effective provision,
and the extent of such equal and ratable security shall be adjusted to the
extent permitted by law, as and when said principal amount changes over time
pursuant to Section 5.1 and any other provision hereof), so long as such secured
Debt shall be so secured, unless, after giving effect thereto, the aggregate
principal amount of all such secured Debt then outstanding plus all Attributable
Debt of the Company and its Restricted Subsidiaries in respect of sale and
leaseback transactions (as defined in Section 3.6) entered into after the date
of the first issuance of any Securities of such Series this Indenture (other
than sale and leaseback transactions permitted by Section 3.6(b)) would not
exceed an amount equal to 10% of Consolidated Net Tangible Assets; provided,
however, that nothing contained in this Section shall prevent, restrict or apply
to, and there shall be excluded from secured Debt in any computation under this
Section, Debt secured by:
(a) With respect to each Series of Securities, Liens existing as of
the date of the issuance of Securities of such
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Series on any property or assets owned or leased by the Company or any
Restricted Subsidiary;
(b) Liens on property or assets of, or on any shares of stock or Debt
of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(c) Liens on any property or assets or shares of stock or Debt
existing at the time of acquisition thereof (including acquisition through
merger or consolidation) or to secure the payment of all or any part of the
purchase price or construction cost thereof or to secure any Debt incurred
prior to, at the time of or within 120 days after the later of acquisition
of such property or assets or shares of stock or Debt or the completion of
any such construction and the commencement of operation of such property,
for the purpose of financing all or any part of the purchase price or
construction cost thereof;
(d) Liens on any property or assets to secure all or any part of the
cost of development, operation, construction, alteration, repair or
improvement of all or any part of such property or assets, or to secure
Debt incurred prior to, at the time of or within 120 days after the
completion of such development, operation, construction, alteration, repair
or improvement, whichever is later, for the purpose of financing all or any
part of such cost;
(e) Liens in favor of, or which secure Debt owing to, the Company or a
Restricted Subsidiary;
(f) Liens arising from the assignment of moneys due and to become due
under contracts between the Company or any Restricted Subsidiary and the
United States of America, any State, Territory or possession thereof or any
agency, department, instrumentality or political subdivision of any
thereof; or Liens in favor of the United States of America, any State,
Commonwealth, Territory or possession thereof or any agency, department,
instrumentality or political subdivision of any thereof, to secure
progress, advance or other payments pursuant to any contract or provision
of any statute, or pursuant to the provisions of any contract not directly
or indirectly in connection with securing Debt;
(g) any deposit or pledge as security for the performance of any bid,
tender, contract, lease or undertaking not directly or indirectly in
connection with the securing of Debt; any deposit or pledge with any
governmental agency required or permitted to qualify the Company or any
Restricted Subsidiary to conduct business, to maintain self-insurance or to
obtain the benefits of any law pertaining to worker's compensation,
unemployment insurance, old age pensions, social security or similar
matters, or to obtain any stay or
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discharge in any legal or administrative proceedings; deposits or pledges
to obtain the release of mechanics', worker's, repairmen's, materialmen's
or warehousemen's liens on the release of property in the possession of a
common carrier; any security interest created in connection with the sale,
discount or guarantee of notes, chattel mortgages, leases, accounts
receivable, trade acceptances or other paper, or contingent repurchase
obligations, arising out of sales of merchandise in the ordinary course of
business; liens for taxes not yet due and payable or being contested in
good faith; or other deposits or pledges similar to those referred to in
this subparagraph (g);
(h) Liens arising by reason of any attachment, judgment, decree or
order of any court or other governmental authority, so long as any
appropriate legal proceedings which may have been initiated for review of
such attachment, judgment, decree or order shall not have been finally
terminated or so long as the period within which such proceedings may be
initiated shall not have expired;
(i) Liens created after the date of this Indenture on property leased
to or purchased by the Company or any Restricted Subsidiary after that date
and securing, directly or indirectly, obligations issued by a State, a
Territory or a possession of the United States of America, or any political
subdivision of any of the foregoing, or the District of Columbia, to
finance the cost of acquisition or cost of construction of such property;
and
(j) any extension, renewal, substitution or replacement (or successive
extensions, renewals, substitutions or replacements), as a whole or in
part, of any Lien referred to in subparagraphs (a) through (i) above or the
Debt secured thereby; provided that (1) such extension, renewal,
substitution or replacement Lien shall be limited to all or any part of the
same property or assets, shares of stock or Debt that secured the Lien
extended, renewed, substituted or replaced (plus improvements on such
property and any other property or assets not then constituting a Principal
Property) and (2) to the extent, if any, that the Debt secured by such Lien
at such time is increased, the amount of such increase shall not be
excluded from secured Debt under any computation under this Section.
Debt created by the Company or any Restricted Subsidiary shall not be
cumulated with a guarantee of the same Debt by the Company or any other
Restricted Subsidiary for the same financial obligation.
SECTION 3.6 Limitation Upon Sales and Leasebacks. As long as any
Securities of a Series have been issued and are Outstanding, the Company will
not itself, and will not permit any
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Restricted Subsidiary to, enter into any arrangement after the date of this
Indenture with any bank, insurance company or other lender or investor (not
including the Company or any Restricted Subsidiary) providing for the leasing by
the Company or any such Restricted Subsidiary for a period, including renewals,
in excess of three years of any Principal Property which was or is owned by the
Company or such Restricted Subsidiary which has been or is to be sold or
transferred, more than 120 days after such property has been owned by the
Company or such Restricted Subsidiary and completion of construction and
commencement of full operation thereof, to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
on the security of such Principal Property (herein referred to as a "sale and
leaseback transaction") unless either:
(a) The Attributable Debt of the Company and its Restricted
Subsidiaries in respect of such sale and leaseback transaction and all
other sale and leaseback transactions entered into after the date of the
first issuance of any Securities of such Series (other than sale and
leaseback transactions permitted by Section 3.6(b))plus the aggregate
principal amount of Debt secured by Liens on Principal Properties then
outstanding (excluding any such Debt secured by Liens covered in
subparagraphs (a) through (j) of the first paragraph of Section 3.5)
without equally and ratably securing the Securities of any Series then
outstanding, would not exceed 10% of Consolidated Net Tangible Assets, or
(b) The Company, within 120 days after the sale or transfer, applies
an amount equal to the value of the Principal Property so sold and leased
back at the time of entering into such arrangement (as determined by the
Company) to (x) the retirement of Funded Debt (including Securities of any
Series constituting Funded Debt) of the Company (and any redemption of
Securities of any Series pursuant to this provision shall, if provided in
the terms of such particular Series of Securities, not be deemed to
constitute a refunding operation or anticipated refunding operation
pursuant to any redemption provision of such Series otherwise prohibiting
redemption when such would constitute a refunding operation or anticipated
refunding operation) or (y) the acquisition of properties, facilities or
equipment used for general operating purposes for the Company or any
Restricted Subsidiary; provided, that the amount to be applied to the
retirement of Funded Debt of the Company pursuant to this subparagraph (b)
shall be reduced by (i) the principal amount of any Securities (the
principal amount of any Securities which are Original Issue Discount
Securities shall mean and shall not be less than that principal amount
which could then be declared to be due and payable pursuant to Section 5.1)
delivered within 120 days after such sale or transfer to the Trustee for
redemption and cancellation, and (ii) the principal amount of Funded Debt
(similarly determined with respect to Funded Debt that would
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constitute an Original Issue Discount Security within the meaning of this
Indenture), other than Securities, voluntarily retired by the Company
within 120 days after such sale, whether or not any such retirement of
Funded Debt covered by subclause (i) or (ii) above shall be specified as
being made pursuant to this subparagraph (b). Notwithstanding the
foregoing, no retirement referred to in this subparagraph (b) may be
effected by payment at maturity or pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision.
Notwithstanding the foregoing, where the Company or any Restricted
Subsidiary is the lessee in any sale and leaseback transaction, Attributable
Debt shall not include any Debt resulting from the guarantee by the Company or
any other Restricted Subsidiary of the lessee's obligation thereunder.
SECTION 3.7 Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 3.5 or 3.6 with respect to the Securities of any Series if before the
time for such compliance the Holders of at least a majority in principal amount
of the Outstanding Securities of such Series shall either waive such compliance
in such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
SECTION 3.8 Seniority of Securities. The Company covenants and
agrees that the indebtedness represented by the Securities is hereby expressly
made senior to any indebtedness represented by any securities now outstanding or
ever issued or to be issued pursuant to (a) the Indenture, dated as of May 15,
1986, between the Company and the United States Trust Company of New York, as
trustee, or any amendment or supplement thereto, (b) the Indenture, dated as of
May 15, 1986, between the Company and J. Henry Schroder Bank & Trust Company, as
trustee, or any amendment or supplement thereto, (c) the Fiscal Agency
Agreement, dated as of January 16, 1990, between the Company and Union Bank of
Switzerland, as fiscal agent, or any amendment or supplement thereto, (d) the
Indenture, dated as of May 1, 1991, between the Company and Morgan Guaranty
Trust Company of New York, as trustee, or any amendment or supplement thereto
and (e) the Indenture, dated as of September __, 1995, between the Company and
Harris Trust and Savings Bank, as trustee, in respect of subordinated debt
securities, or any amendment or supplement thereto.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
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COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of
the Securities of each Series:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Securities, as hereinabove specified, as of
such record date, and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request,
such list to be as of a date not more than 15 days prior to the time such
information is furnished,
provided that if and so long as the Trustee shall be the Security registrar for
such Series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Security-holders' Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders
of each Series of Securities contained in the most recent list furnished to
it as provided in Section 4.1 or maintained by the Trustee in its capacity
as Security registrar for such Series, if so acting. The Trustee may
destroy any list furnished to it as provided in Section 4.1 upon receipt of
a new list so furnished.
(b) In case three or more Holders of Securities of any Series
(hereinafter referred to as "applicants") apply in writing to the Trustee
and furnish to the Trustee reasonable proof that each such applicant has
owned a Security for a period of at least six months preceding the date of
such application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular Series (in
which case the applicants must all hold Securities of such Series) or with
Holders of all Securities with respect to their rights under this Indenture
or under such Securities and such application is accompanied by a copy of
the form of proxy or other communication which such applicants propose to
transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 4.2, or
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(ii) inform such applicants as to the approximate number of Holders
of Securities of such Series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such Series or all Securities,
as the case may be, whose name and address appear in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section, a copy of the form of proxy or other
communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and
of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail
to such applicants and file with the Commission together with a copy of the
material to be mailed, a written statement to the effect that, in the
opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities of such Series or all Securities, as
the case may be, or could be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the written
statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of such order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity
for hearing, that all the objections so sustained have been met, and shall
enter an order so declaring, the Trustee shall mail copies of such material
to all such Securityholders with reasonable promptness after the entry of
such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any agent of the Company or the Trustee shall be held
accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with the
provisions of subsection (b) of this Section, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under such subsection (b).
SECTION 4.3 Reports by the Company. The Company covenants:
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(a) to 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, as amended, or if the Company is not
required to file information, documents, or reports pursuant to either of
such Sections, then to file with the Trustee and 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, as amended, or in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(b) to file with the Trustee and the 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 provided for in this
Indenture as may be required from time to time by such rules and
regulations; and
(c) to transmit by mail to the Holders of Securities in the manner and
to the extent required by Sections 6.6 and 11.4, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents, and reports required to be filed by the Company pursuant to
subsections (a) and (b) of this Section as may be required to be
transmitted to such Holders by rules and regulations prescribed from time
to time by the Commission.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any Series
wherever used herein, means any one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless it is either
inapplicable to a particular Series or it is specifically deleted or modified in
or pursuant to the supplemental indenture or resolution of the Board of
Directors
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establishing such Series of Securities or in the form of Security for such
Series:
(a) default in the payment of any installment of interest upon any of
the Securities of such Series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any
of the Securities of such Series as and when the same shall become due and
payable, either at maturity, upon any redemption, by declaration or
otherwise; or
(c) default in the performance, or breach of any covenant or warranty
of the Company contained in the Securities of such Series or in this
Indenture (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the benefit
of a Series of Securities other than that Series), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that Series, a written notice specifying
such default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(d) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(e) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State
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bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors; or
(f) any other Event of Default provided with respect to Securities of
such Series in the supplemental indenture or resolution of the Board of
Directors establishing such Series.
If an Event of Default occurs and is continuing with respect to the Securities
of any Series, then and in each and every such case, unless the principal of all
Securities of such Series shall have already become due and payable, either the
Trustee for such Series or the Holders of not less than 25% in aggregate
principal amount at maturity of the Securities of such Series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
such Holders), may declare the principal of all the Securities of such Series to
be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable. This provision, however, is
subject to the condition that if at any time after the principal of the
Securities of such Series shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest, if any, upon all the Securities of such Series and the principal of
any and all Securities of such Series which shall have become due otherwise than
by such acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, upon overdue
installments of interest, at the rate borne by the Securities of such Series to
the date of such payment or deposit) and in Dollars such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel and all other expenses and liabilities incurred, and all
advances made, by the Trustee, its agents, attorneys and counsel and any and all
defaults under this Indenture, other than the nonpayment of the principal of
Securities of such Series which shall have become due by such acceleration,
shall have been remedied, then and in every such case the Holders of a majority
in aggregate principal amount at maturity of the Securities of such Series then
Outstanding, by written notice to the Company and to the Trustee for the
Securities of such Series, may waive all defaults and rescind and annul such
declaration and its consequences; but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
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SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May Prove
Debt. The Company covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any Series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days, or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon maturity of
the Securities of such Series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee for the Securities of such Series,
the Company will pay to the Trustee for the Securities of such Series for the
benefit of the Holders of the Securities of such Series the whole amount that
then shall have become due and payable on all Securities of such Series for
principal of or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest specified in the Securities of
such Series); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to, and all expenses and liabilities incurred and all advances made
by, the Trustee and each predecessor Trustee and their respective agents,
attorneys and counsel.
Until such demand is made by the Trustee, the Company may pay the
principal of and interest on the Securities of any Series to the persons
entitled thereto, whether or not the principal of and interest on the Securities
of such Series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Securities of such series, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon such Securities and collect in the manner provided
by law out of the property of the Company or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
other obligor under the Securities of any Series, or to the creditors or
property of the Company or such
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other obligor, the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed (or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Securities of any
Series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for reasonable compensation to, and all expenses and liabilities incurred
and all advances made by, the Trustee and each predecessor Trustee, and
their respective agents, attorneys and counsel) and of the Securityholders
allowed in any judicial proceedings relative to the Company or other
obligor upon all Securities of any Series, or to the creditors or property
of the Company or such other obligor, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Holders to make
payments to the Trustee for the Securities of such Series, and, in the
event that such Trustee shall consent to the making of payments directly to
the Securityholders, to pay to such Trustee such amounts as shall be
sufficient to cover reasonable compensation to, and all expenses and
liabilities incurred and all advances made by, such Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel and
all other amounts due to such Trustee or any predecessor Trustee pursuant
to Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any Series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee for the Securities
of such Series without the possession of any of the Securities of such Series or
the production thereof at any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the Trustee,
each predecessor Trustee and their
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respective agents and attorneys, shall be for the ratable benefit of the Holders
of the Securities in respect of which such action was taken.
In any proceedings brought by the Trustee for the Securities of such
Series (and also any proceedings involving the interpretation of any provision
of this Indenture to which the Trustee shall be a party), the Trustee shall be
held to represent all the Holders of the Securities in respect of which such
action was taken, and it shall not be necessary to make any Holders of such
Securities parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the
Trustee for the Securities of such Series pursuant to this Article in respect of
the Securities of any series shall be applied in the following order at the date
or dates fixed by such Trustee and, in case of the distribution of such moneys
on account of principal or interest, upon presentation of the several Securities
in respect of which moneys have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such Series in reduced
principal amounts in exchange for the presented Securities of like Series if
only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such Series
in respect of which moneys have been collected, including reasonable
compensation to, and all expenses and liabilities incurred and all advances
made by, the Trustee and each predecessor Trustee and their respective
agents and attorneys and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities of such Series in respect of
which moneys have been collected, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference, according
to the amounts then due and payable on such Securities for principal and
interest; and
THIRD: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee for the Securities of any Series shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case, subject to the
determination in any such proceeding, the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company, the Trustee and the
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Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.5 Limitations on Suits by Securityholders. No Holder of
any Security of any Series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal amount of the Securities of
such Series then Outstanding shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee indemnity reasonable to it as it may require,
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action or proceeding and no
direction inconsistent with such written request shall have been given to the
Trustee during such 60-day period by Holders of a majority in principal amount
of the Securities of such Series then Outstanding; it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security with every other taker and Holder of a Security and the Trustee, that
no one or more Holders of Securities of any Series shall have any right in any
manner whatever, by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any other such Holder of Securities,
or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner herein
provided and for the equal, ratable and common benefit of all Holders of
Securities of the applicable Series.
SECTION 5.6 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and (subject to Section 2.7) interest on such Security at the
respective rates, in the respective amount on or after the respective due dates
expressed in such Security, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 2.9 and Section 5.5, no right
or remedy herein conferred upon or reserved to the Trustee or to the
Securityholders 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
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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.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.5, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
the Securityholders.
SECTION 5.8 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each Series affected (with each
Series treated as a separate class) at the time Outstanding 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 by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that the Trustee shall
have the right to decline to follow any such direction if the Trustee shall
determine that the action or proceedings so directed would involve the Trustee
in personal liability or if the Trustee in good faith shall so determine that
the actions or forbearances specified in or pursuant to such direction would be
unduly prejudicial to the interests of Holders of the Securities of all Series
so affected not joining in the giving of said direction, it being understood
that the Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
SECTION 5.9 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities of such Series at the time
outstanding may on behalf of the Holders of all the Securities of such Series
waive any past default hereunder or its consequences, except a default in the
payment of the principal of or interest on any of the Securities of such Series.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred 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 5.10 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and
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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 and expenses, 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
Securityholder or group of Securityholders of any Series holding in the
aggregate more than 10% in aggregate principal amount of the Securities of such
Series, or to any suit instituted by any Securityholder for the enforcement of
the payment of the principal of or interest on any Security on or after the due
date expressed in such Security.
SECTION 5.11 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at
law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in
aid of the exercise of any power granted in this Indenture or to enforce
any other legal or equitable right vested in the Trustee by this Indenture
or by law.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing with respect
to the Securities of any Series, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in its exercise as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Securities of any Series:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be
read into the document against the Trustee; and
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(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 any statements, certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.8.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 6.1.
(e) No provision of this Indenture shall require the Trustee to extend
or risk its own funds or otherwise incur any financial liability unless it
receives indemnity satisfactory to it against any loss, liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 6.2 Rights of Trustee.
(a) The Trustee may rely, and shall be protected in relying upon, on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to
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take in good faith in reliance on such Officers' Certificate or Opinion of
Counsel.
(c) Subject to the provisions of Section 6.1(c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
(d) Before the Trustee acts or refrains from acting the Trustee may
consult with counsel of its selection 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 in accordance with such advice or Opinion of Counsel.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee indemnity reasonable to it against the costs, expenses
and liabilities which might be incurred by it in compliance with such request or
direction.
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(g) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
Officer's Certificate, or other certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in writing
so to do by the Holders or not less than a majority in aggregate principal
amount of the Notes then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Company or,
if advanced by the Trustee, shall be repaid by the Company upon demand.
(h) the Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
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(i) the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on the part
of the Company, except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to examine the books, records and premises of the Company.
(j) the permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful default.
(k) except for (i) a default under Sections 5.1(a) or (b) hereof, or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or the passage of time or both, would
constitute an Event of Default under this Indenture, the Trustee shall not be
deemed to have notice of any default or event unless specifically notified in
writing of such event by the Company or the Holders of not less than 25% in
aggregate principal amount of the Notes Outstanding; as used herein, the term
"actual knowledge" means the actual fact or statement of knowing, without any
duty to make any investigation with regard thereto.
SECTION 6.3 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, registrar or co-
registrar may do the same with like rights. However, the Trustee must comply
with Sections 6.10 and 6.11.
SECTION 6.4 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, it shall not be responsible for any statement in the
registration statement for the Securities under the Securities Act of 1933, as
amended, or in the Indenture or the Securities (other than its certificate of
authentication).
SECTION 6.5 Notice of Defaults. If a default occurs and is
continuing with respect to any Securities of any Series and if the Trustee has
actual knowledge of such default, the Trustee shall give to each Securityholder
of such Series notice of the default within 90 days after such default occurs.
Except in the case of a default described in Section 5.1(a) or (b), the Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of Securityholders of such Series.
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SECTION 6.6 Reports by Trustee to Holders. Within 60 days after each
November 1 beginning with the November 1 following the date of this Indenture,
the Trustee shall mail to each Securityholder of any Series and each other
person specified in TIA Section 313(c) a brief report dated as of such November
1 that complies with TIA Section 313(a) to the extent required thereby. The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders of
any Series shall be filed with the Commission and each securities exchange on
which the Securities of any Series are listed. The Company agrees promptly to
notify the Trustee whenever the Securities of any Series become listed on any
securities exchange and of any delisting thereof.
SECTION 6.7 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, in Dollars such compensation as shall be agreed to in writing
between the Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except to the extent any such expense, disbursement or advance
may be attributable to its negligence or willful misconduct; and
(c) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection
with the acceptance or administration of this trust or the performance of
its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to
the extent that any such loss, liability or expense may be attributable to
its negligence or willful misconduct.
As security for the performance of the obligations of the Company in
this Section 6.7, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in trust to
pay the principal of or interest, if any, on particular Securities.
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"Trustee" for purpose of this Section 6.7 includes any predecessor
trustee, provided that the negligence or bad faith of any Trustee shall not be
attributable to any other Trustee.
The Company's payment obligations pursuant to this Section 6.7 shall
constitute additional indebtedness hereunder and shall survive the discharge of
this Indenture. When the Trustee incurs expenses after the occurrence of a
default specified in Sections 5.1(d) and 5.1(e), such expenses (including
reasonable fees and expenses of its counsel) are intended to constitute expenses
of administration under bankruptcy law.
SECTION 6.8 Replacement of Trustee. The Trustee may resign at any
time with respect to Securities of one or more Series by so notifying the
Company; provided, however, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 6.8.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of any Series may remove the Trustee with respect to such Series at
the time outstanding by so notifying the Trustee and the Company. The Company
shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or more
Series, the Company shall promptly appoint, by resolution of its Board of
Directors, a successor Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture with respect to the Securities of such Series. The
successor Trustee shall mail a notice of its succession to Securityholders so
affected. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in Section
6.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding may
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petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section 310(a)(1). The Trustee shall have
a combined capital and surplus of at least $50,000,000 as set forth in its most
recent published annual report of condition. Neither the Company nor any person
directly or indirectly controlling, controlled by or under common control with
the Company shall serve as Trustee hereunder. The Trustee shall comply with TIA
Section 310(b).
SECTION 6.11 Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Securityholders of any or all
Series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Sections 6.1 and 6.2)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
(b) The ownership of Securities shall be proved by the Security
register.
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SECTION 7.2 Proof of Execution of Instruments. Subject to Sections
6.1 and 6.2, the execution of any instrument by a Securityholder or his agent or
proxy may be proved in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
SECTION 7.3 Holders to Be Treated as Owners. The Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security register
for such Series as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of and interest on such Security and for all other purposes; and
neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary. All such payments so made to
any such person, or upon his order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Company or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are 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
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all Series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which
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have consented to such action may, by filing written notice at the Corporate
Trust Office and upon proof of holding as provided in this Article, revoke such
action so far as concerns such Security. Except as aforesaid any such action
taken by the Holder of any Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor, irrespective of whether
or not any notation in regard thereto is made upon any such Security. Any
action taken by the Holders of the percentage in aggregate principal amount of
the Securities of any or all Series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Company, the Trustee and the Holders of all the Securities affected by such
action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Company, when authorized by a resolution of its Board of
Directors, and the Trustee for the Securities of any and all Series may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof), in form satisfactory to such
Trustee, for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more Series any property or assets;
(b) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to
Article Nine;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
Securities of any or all Series and, if such additional covenants are to be
for the benefit of less than all the Series of Securities, stating that
such covenants are being added solely for the benefit of such Series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors may deem necessary or desirable and
which shall not materially and
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adversely affect the interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any Series as
permitted by Sections 2.1 and 2.3; or
(f) 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 the one Trustee, pursuant to the
requirements of Section 6.8.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental indenture (voting as
one class), the Company, when authorized by a resolution of its Board of
Directors, and the Trustee for such Series of Securities may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Securities of each such Series; provided, however,
that no such supplemental indenture shall (a) extend the final maturity of any
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof, or impair or affect the right of any
Securityholder to institute suit for payment thereof or, if the Securities
provide therefor, any right of repayment at the option of the Securityholder
without the consent of the Holder of each Security so affected, or (b) reduce
the aforesaid percentage of Securities of any Series, the consent of the Holders
of which is required for any such supplemental
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indenture, without the consent of the Holders of each Security so affected.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee for such Series of Securities of evidence of
the consent of securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee for such Series of Securities shall join
with the Company in the execution of such supplemental indenture unless such
supplemental indenture affects such Trustee's own rights, duties or immunities
under this Indenture or otherwise, in which case such Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice in the manner and to the extent provided in Section 11.4 to
the Holders of Securities of each Series affected thereby at their addresses as
they shall appear on the Security register of the Company, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of Securities
of each Series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject
to the provisions of Sections 6.1 and 6.2, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture.
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SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any Series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear, upon the direction of the Company, a notation in form
satisfactory to the Trustee for the Securities of such Series as to any matter
provided for by such supplemental indenture. If the Company or the Trustee
shall so determine, new Securities of any Series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by
the Company, authenticated by the Trustee and delivered in exchange for the
Securities of such Series then outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc. on Certain Terms. The
Company may consolidate with, or sell, convey or lease all or substantially all
of its assets to, or merge with or into, any other corporation, provided that in
any such case, (i) either the Company shall be the continuing corporation, or
the successor corporation shall be organized and validly existing under the laws
of the United States of America or any State thereof or the District of Columbia
and shall expressly assume the due and punctual payment of the principal of and
interest on all the securities according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) the Company or such successor corporation, as the
case may be, shall not, immediately after such merger or consolidation, or such
sale, conveyance or lease, be in material default in the performance or
observance of any such covenant or condition.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Company prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall make available for delivery any Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be
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signed and delivered to the Trustee for that purpose. All of the Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had been issued at
the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance the Company (or any
successor corporation which shall theretofore have become such in the manner
described in this Article) shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be liquidated and
dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall receive an Opinion of Counsel,
prepared in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE: UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Company shall have paid or caused to be
paid the principal of and interest on all the Securities of any Series
Outstanding hereunder (other than Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.9) as and
when the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all Securities of any Series
theretofore authenticated (other than any Securities of such Series which have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.9) or (c) (i) all the Securities of such Series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and (ii) the Company shall
have irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount (other than moneys repaid by the Trustee or any Paying
Agent to the Company in accordance with Section 10.4) or Government Obligations
maturing as to principal and interest in such amounts and at such times as will
ensure the availability of cash sufficient to pay at
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maturity or upon redemption all Securities of such Series (other than any
Securities of such Series which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.9) not
theretofore delivered to the Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, the Company shall also pay or cause to be paid all other
sums payable hereunder by the Company with respect to Securities of such Series,
then this Indenture shall cease to be of further effect with respect to
Securities of such Series (except as to (i) rights of registration of transfer
and exchange, and the Company's right of optional redemption (provided the
Company provides sufficient funds to effect such optional redemption), (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii)
rights of Holders to receive payments of principal thereof and interest thereon
upon the original stated due dates therefor (but not upon acceleration) and
remaining rights of the Holders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations and immunities of the Trustee hereunder and
(v) the rights of the Securityholders of such Series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any
of them), and, subject to Section 10.5, the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such Series;
provided, that the rights of Holders of the Securities to receive amounts in
respect of principal of and interest on the Securities held by them shall not be
delayed longer than required by then-applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed. The Company
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture and the Securities of such Series.
(B) (i) In addition to the provisions of Section 10.1(A), the
Company may, at its option by or pursuant to, or otherwise in a manner or by
such Persons as may be authorized pursuant to, one or more resolutions duly
adopted by the Board of Directors, at any time with respect to the Securities of
any Series, elect to have defeasance under subsection (ii) or covenant
defeasance under subsection (iii) of this Section 10.1(B) be applied to the
Outstanding Securities of such Series provided that provision therefor is made
for such application pursuant to Section 2.3 and the applicable conditions
thereto as set forth in this Section 10.1(B) have been satisfied.
(ii) Upon the Company's exercise of the option referenced in
Section 10.1(B)(i) applicable to this subsection, the Company may terminate its
obligations under the Outstanding Securities of any Series and this Indenture
with respect to such
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Series on the date the conditions set forth below are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such Series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities
are concerned (and the Trustee, at the expense and request of the Company, shall
execute proper instruments acknowledging the same), except for the following:
(1) the rights of Holders of Outstanding Securities of such Series to receive
payments in respect of the principal of and interest on such Securities when
such payments are due, (2) the Company's obligations with respect to such
Securities under Sections 2.8, 2.9, 3.2, 6.7, 10.4 and 10.5, (3) the rights,
powers, trusts, duties and immunities of the Trustee hereunder, and (4) this
Section 10.1(B).
(iii) Upon the Company's exercise of the option referenced in
Section 10.1(B)(i) applicable to this subsection, the Company shall be released
from its obligations under Sections 3.5 and 3.6 with respect to the Outstanding
Securities of such Series on and after the date the conditions set forth below
are satisfied (hereinafter "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of
such Series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section,
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or by reason of any reference in any such Section to any other
provision herein or in any other document (including, without limitation, the
form of Securities of such Series), but the remainder of this Indenture and the
rights of each Holder of such Securities shall be unaffected thereby.
(iv) The following shall be the conditions to the application of
Section 10.1(B) (ii) or (iii) to the Outstanding Securities of such Series:
(1) The Company shall have irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.10 who shall agree to comply with the provisions of this
Section 10.1(B) applicable to it) under the terms of an irrevocable trust
agreement, as trust funds in trust solely for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of Securities of such Series, (I)
cash in the currency or currency unit required, or (II) Government
Obligations maturing as to principal and interest in such amounts (payable
in the currency in which the Securities of such Series are payable) and at
such times as are sufficient, to pay the principal of and interest on the
Outstanding Securities of such Series to maturity or redemption, as the
case may
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be, or (III) a combination thereof, in each case 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, (x) the principal of and each installment of
principal of and interest, if any, on the Outstanding Securities of such
Series on the stated maturity of such principal or installment of principal
or interest, if any, and (y) any mandatory sinking fund payments or
analogous payments applicable to the Outstanding Securities of such Series
on the day on which such payments are due and payable in accordance with
the terms of this Indenture and of such Securities. Such irrevocable trust
agreement shall include, among other things, (a) provision for the payments
referenced in clauses (x) and (y) of the immediately preceding sentence,
(b) the payment of the reasonable expenses of the Trustee incurred or to be
incurred in connection with carrying out such trust provisions, (c) rights
of registration, transfer, substitution and exchange of Securities of such
Series in accordance with the terms stated in this Indenture and (d)
continuation of the rights and obligations and immunities of the Trustee as
against the Holders of Securities of such Series as stated in this
Indenture.
(2) No Event of Default or event which with notice or lapse of time or
both would constitute an Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit or, insofar as Sections 5.1(d) and 5.1(e) are concerned, at any
time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such 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.
(4) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Securityholders of such Series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit and discharge and will be subject to Federal income tax on
the same amounts and in the same manner and at the same time as would have
been the case if such deposit and defeasance or covenant defeasance, as the
case may be, had not occurred.
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(5) The Company shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the deposit and defeasance or
covenant defeasance, as the case may be, contemplated by this Section
10.1(B) have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the Trustee
pursuant to Section 10.1 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the particular Securities of
such Series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any Series, all moneys then held by any Paying Agent (other than the Company)
under the provisions of this Indenture with respect to such Series of Securities
shall, upon demand of the Company, be paid to the Trustee and thereupon such
Paying Agent shall be released from all further liability with respect to such
moneys.
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying
Agent. Any moneys deposited with or paid to the Trustee or any Paying Agent
(including the Company acting as its own Paying Agent) for the payment of the
principal of or interest on any Security of any Series and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Company, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, promptly be repaid to the
Company by the Trustee for such Series or such Paying Agent (except that with
respect to any amounts then held by the Company in trust as its own Paying Agent
no such request need be given and at such time the Company shall be discharged
from its duty to hold such moneys in trust as Paying Agent), and the Holder of
the Security of such Series shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Company for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease. Anything in this Article Ten to
the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the written request of the Company any money or
Government Obligations held by it as provided in Section 10.1(B)(iv) which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
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Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect such defeasance or covenant defeasance, as the case may be,
in accordance with the provisions of this Indenture.
SECTION 10.5 Reinstatement of Company's Obligations. If the Trustee
is unable to apply any funds or Government Obligations in accordance with
Section 10.1 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
indenture and the Securities of any Series for which such application is
prohibited shall be revived and reinstated as if no deposit had occurred
pursuant to Section 10.1 until such time as the Trustee is permitted to apply
all such funds or Government Obligations in accordance with Section 10.1;
provided, however, that if the Company has made any payment of interest on or
principal of any of such Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Securityholders of such Securities to receive such payment from the funds or
Government Obligations held by the Trustee.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Security,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders thereof
and as part of the consideration for the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any Person, firm or
corporation, other than the parties hereto, any Paying Agent and their
successors hereunder and the Holders of the Securities any legal or equitable
right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit
of the parties hereto and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and
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agreements in this Indenture contained by or on behalf of the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 11.4 Notices and Demands on Company, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Company may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Company is filed by the Company
with the Trustee) to FMC Corporation, 200 East Randolph Drive, Chicago, Illinois
60601, Attention: Corporate Secretary. Any notice, direction, request or demand
by the Company or any Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made at the
Corporate Trust Office.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first-class mail, postage prepaid to such Holders as
their names and addresses appear in the Security register within the time
prescribed. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
reasonably acceptable to the Trustee shall be deemed to be a sufficient giving
of such notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, 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
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of any such application or demand as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel, unless such officer knows that the certificate
or opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters or information with respect to which is in the possession of
the Company, upon the certificate, statement or opinion of or representations by
an officer or officers of the Company, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. Unless
otherwise specified in a Security, if the date of maturity of interest on or
principal of the Securities of any Series or the date fixed for redemption or
repayment of any such Security shall not be a Business Day, then payment of
interest or
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principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no interest shall accrue for the period
after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in this
Indenture which is required by the Trust Indenture Act of 1939, as amended, such
required provision shall control. If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act of 1939, as amended, that
may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 11.8 Illinois Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the internal laws of the State
of Illinois (without regard to conflicts of laws provisions thereof), and for
all purposes shall be construed in accordance with the laws of such State.
SECTION 11.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings; Gender. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof. The use of the masculine, feminine or neuter
gender herein shall not limit in any way the applicability of any term or
provision hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any Series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a Series except as otherwise specified as contemplated by Section 2.3 for
Securities of such Series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any Series required to be redeemed or
to be redeemed as a whole or in part at the option of the Company shall be given
by giving notice of such redemption as provided in Section 11.4, at least 15
days and not more than forty-five days prior to the date fixed for redemption to
such Holders of Securities of such Series. Failure to give notice by mail, or
any defect in the notice to the Holder of any Security of a Series designated
for redemption as a whole or in part shall
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not affect the validity of the proceedings for the redemption of any other
Security of such Series.
The notice of redemption to each such Holder shall specify the date
fixed for redemption, the "CUSIP" number or numbers for such Securities, the
redemption price, the Place or Places of Payment, that payment will be made upon
presentation and surrender of such Securities, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified in
such notice, that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue and, if applicable, that a Holder of
Securities who desires to convert Securities for redemption must satisfy the
requirements for conversion contained in such Securities, the then existing
conversion price or rate and the date and time when the option to convert shall
expire. If less than all of the Securities of any Series are to be redeemed,
the notice of redemption shall specify the numbers of the Securities of such
Series to be redeemed. In case any Security of a Series is to be redeemed in
part, the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such Series in principal amount equal to the unredeemed Portion thereof will be
issued.
The notice of redemption of Securities of any Series to be redeemed at
the option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. If such
notice is to be given by the Trustee, the Company shall provide notice of such
redemption to the Trustee at least forty-five days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee). If
such notice is given by the Company, the Company shall provide a copy of such
notice given to the Holders of such redemption to the Trustee at least 3
Business Days prior to the date such notice is given to such Holders, but in any
event at least 15 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not later than the
redemption date specified in the notice of redemption given as provided in this
Section, the Company will have on 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 3.4) in funds available on
such date an amount of money sufficient to redeem on the redemption date all the
Securities of such Series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less
than all the Outstanding Securities of a Series are to be redeemed, the Company
will deliver to the Trustee at least forty-five days prior
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to the date fixed for redemption an Officers' Certificate stating the aggregate
principal amount of Securities to be redeemed.
If less than all the Securities of a Series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part and the Trustee
shall promptly notify the Company in writing of the Securities of such Series
selected for redemption and, in the case of any Securities of such Series
selected for partial redemption, the principal amount thereof to be redeemed.
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 forty-five days prior to
the relevant redemption date. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such Series or
any multiple thereof. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any Series 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 12.3 Payment of Securities Called for Redemp-tion. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and, except as provided in Sections 6.1 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a Place of Payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that if for any Securities
the date fixed for redemption is a regular interest payment date, payment of
interest becoming due on such date shall be payable to the Holders of such
Securities registered as such on the relevant record date subject to the terms
and provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall,
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until paid or duly provided for, bear interest from the date fixed for
redemption at the rate of interest borne by the Security.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 30 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any Series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of Securities
of any Series is herein referred to as an "optional sinking fund payment." The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Series of Securities in cash, the Company may at its
option (a) deliver to the Trustee securities of such Series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such Series (not previously so credited)
redeemed by the Company through any optional redemption provision contained in
the terms of such Series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the forty-fifth day next preceding each sinking fund
payment date for any Series of Securities, the Company will deliver to the
Trustee a written statement (which need not contain the statements required by
Section 11.5) signed by an
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authorized officer of the Company (a) specifying the portion of the mandatory
sinking fund payment to be satisfied by payment of cash (except as otherwise
specified pursuant to Section 2.3 for the Securities of such Series), and the
portion to be satisfied by delivery or credit of Securities of such Series, (b)
stating that none of the Securities of such Series for which credit is sought
has theretofore been so credited, (c) stating that no defaults in the payment of
interest or Events of Default with respect to such Series have occurred (which
have not been waived or cured) and are continuing, (d) stating whether or not
the Company intends to exercise its right to make an optional sinking fund
payment with respect to such Series and, if so, specifying the amount of such
optional sinking fund payment which the Company intends to pay on or before the
next succeeding sinking fund payment date and (e) specifying such sinking fund
payment date. Any Securities of such Series to be credited and required to be
delivered on the Trustee in order for the Company to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with
such written statement. Such written statement shall be irrevocable and upon
its receipt by the Trustee the Company shall become unconditionally obligated to
make all the cash payments or payments therein referred to, if any, on or before
the next succeeding sinking fund payment date. Failure of the Company, on or
before any such forty-fifth day, to deliver such written statement and
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Company (i) that the mandatory sinking fund payment for such Series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such Series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to
such Series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $100,000 (or a lesser sum if the Company shall so request) with respect
to the Securities of any particular Series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such Series at the sinking fund redemption price together with accrued interest
to the date fixed for redemption. If such amount shall be $100,000 or less and
the Company makes no such request then it shall be carried over until a sum in
excess of $100,000 is available. The Trustee shall select, in the manner
provided in Section 12.2 and giving effect to any exclusions required pursuant
to Section 12.4, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such Series to absorb said cash, as nearly as
may be possible, and shall (if requested in writing by the Company) inform the
Company of the serial numbers of the Securities of such Series (or portions
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thereof) so selected. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so notify the Trustee in writing), shall
cause notice of redemption of the Securities of such Series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such Series at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such Series shall be added to the
next cash sinking fund payment for such Series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such Series shall
be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities of
such Series at maturity.
Unless otherwise specified pursuant to Section 2.3, not later than the
sinking fund payment date, the Company shall have paid to the Trustee in cash or
shall otherwise provide in funds available on such date for the payment of all
principal and interest accrued to the date fixed for redemption on Securities to
be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a Series with sinking fund moneys or mail or publish any notice of redemption of
Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing or publication of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Company a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such Series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.9 or the default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
SECTION 12.6 Repayment at the Option of the Holders. Securities of
any Series which are repayable at the option of the Holders thereof before their
stated maturity shall be repaid in accordance with the terms of the Securities
of such Series.
The repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of
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Securities before their stated maturity, for purposes of Section 10.1, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented
by such Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled.
SECTION 12.7 Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Trustee or the Paying Agent in trust for the Holders
of Securities, on or before 10:00 a.m. Chicago time on the redemption date, an
amount not less than the redemption price, together with interest, if any,
accrued to the redemption date of such Securities, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Twelve, the obligation of the Company to pay the redemption price of such
Securities, including all accrued interest, if any, 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, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and surrendered by such purchasers for conversion,
all as of immediately prior to the close of business on the last day on which
Securities of such series called for redemption may be converted in accordance
with this Indenture and the terms of such Securities, subject to payment to the
Trustee or Paying Agent of the above-described amount. The Trustee or the
Paying Agent shall hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it in the same manner as it would pay moneys
deposited with it by the Company for the redemption of Securities. Without the
Trustee's and the Paying Agent's prior written consent, no arrangement between
the Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee and the Paying Agent as set forth
in this Indenture, and the Company agrees to indemnify the Trustee and the
Paying Agent from, and hold them harmless against, any loss, liability or
expense arising out of or in connection with any such arrangement for the
purchase and conversion of any Securities between the Company and such
purchasers, including the costs and expenses incurred by the Trustee and the
Paying Agent (including the fees and expenses of their agents and counsel) in
the defense of any claim or liability arising out of or in connection with the
exercise or performance of any of their powers, duties, responsibilities or
obligations under this Indenture.
ARTICLE THIRTEEN
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CONVERSION OF SECURITIES
SECTION 13.1 Applicability of Article. Securities of any series
which are convertible into Common Shares at the option of the Holder of such
Securities shall be convertible in accordance with their terms and (unless
otherwise specified as contemplated by Section 2.3 for the Securities of any
series) in accordance with this Article. Each reference in this Article
Thirteen to "a Security" or "the Securities" refers to the Securities of the
particular Series that is convertible into Common Shares. If more than one
Series of Securities with conversion privileges are Outstanding at any time, the
provisions of this Article Thirteen shall be applied separately to each such
series.
SECTION 13.2 Right of Holders to Convert Securities into Common
Shares. Subject to and upon compliance with the terms of the Securities and the
provisions of Section 12.7 and this Article Thirteen, at the option of the
Holder thereof, any Security of any series of any authorized denomination which
is convertible into Common Shares, or any portion of the principal amount
thereof which is $1,000 or any integral multiple of $1,000, may, at any time
during the period specified in the Securities of such series, or in case such
Security or portion thereof shall have been called for redemption, then in
respect of such Security or portion thereof until and including, but not after
(unless the Company shall default in payment due upon the redemption thereof)
the close of business on the redemption date (except that in the case of
repayment at the option of the Holder, if specified in the terms of the relevant
Security, such right shall terminate upon the Company's receipt of written
notice of the exercise of such option), be converted into duly authorized,
validly issued, fully paid and nonassessable Common Shares, as specified in such
Security, at the conversion price or conversion rate for each $1,000 principal
amount of Securities (such initial conversion rate reflecting an initial
conversion price specified in such Security) in effect on the conversion date,
or, in case an adjustment in the conversion price has taken place pursuant to
the provisions of this Article Thirteen, then at the applicable conversion price
as so adjusted, upon surrender of the Security or Securities, the principal
amount of which is so to be converted, to the Company at any time during usual
business hours at the office or agency to be maintained by it in accordance with
the provisions of Section 3.2, accompanied by a written notice of election to
convert as provided in Section 13.3 and, if the Holder requests that the Common
Shares be registered in a name other than that of the Holder, by a written
instrument or instruments of transfer in form satisfactory to the Company and/or
the Trustee, as applicable, duly executed by the Holder thereof or his attorney
duly authorized in writing. All Securities surrendered for conversion shall, if
surrendered to the Company or any conversion agent, be delivered to the Trustee
for cancellation and cancelled by it, or shall, if surrendered to the Trustee,
be cancelled by it, as provided in Section 2.10.
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The initial conversion price or conversion rate in respect of a Series of
Securities shall be as specified in the Securities of such Series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 13.5 or such other or different terms, if any, as may be
specified by Section 2.3 for Securities of such Series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of any portion of it.
SECTION 13.3 Issuance of Common Shares on Conversions. As promptly as
practicable after the surrender, as herein provided, of any Security or
Securities for conversion into Common Shares, the Company shall deliver or cause
to be delivered at its said office or agency to or upon the written order of the
Holder of the Security or Securities so surrendered a certificate or
certificates representing the number of duly authorized, validly issued, fully
paid and nonassessable Common Shares into which such Security or Securities may
be converted in accordance with the terms thereof and the provisions of this
Article Thirteen. Prior to delivery of such certificate or certificates, the
Company shall require written notice at its said office or agency from the
Holder of the Security or Securities so surrendered stating that the Holder
irrevocably elects to convert such Security or Securities, or, if less than the
entire principal amount thereof is to be converted, stating the portion thereof
to be converted. Such notice shall also state the name or names (with address
and social security or other taxpayer identification number) in which said
certificate or certificates are to be issued. Such conversion shall be deemed
to have been made at the time that such Security or Securities shall have been
surrendered for conversion and such notice shall have been received by the
Company or the Trustee, the rights of the Holder of such Security or Securities
as a Holder shall cease at such time, the Person or Persons entitled to receive
the Common Shares upon conversion of such Security or Securities shall be
treated for all purposes as having become either record holder or holders of
such Common Shares at such time and such conversion shall be at the conversion
price in effect at such time. In the case of any Security of any Series which
is converted in part only, upon such conversion, the Company shall execute and,
upon the Company's request and at the Company's expense, the Trustee or an
authenticating agent shall authenticate and deliver to the Holder thereof, as
requested by such Holder, a new Security or Securities of such Series of
authorized denominations in aggregate principal amount equal to the unconverted
portion of such Security.
If the last day on which such Security may be converted is not a Business
Day in a place where the conversion agent for that Security is located, such
Security may be surrendered to that conversion agent on the next succeeding day
that is a Business Day.
The Company shall not be required to deliver certificates for Common Shares
upon conversion while its stock transfer books are closed for a meeting of
shareholders or for the payment of
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dividends or for any other purpose, but certificates for Common Shares shall be
delivered as soon as the stock transfer books shall again be opened.
SECTION 13.4 No Payment or Adjustment for Interest or Dividends.
Unless otherwise specified as contemplated by Section 2.3 for Securities of such
Series, Securities surrendered for conversion into Common Shares during the
period from the close of business on any regular record date (or special record
date) next preceding any interest payment date to the opening of business on
such interest payment date (except Securities called for redemption on a
redemption date within such period) when surrendered for conversion must be
accompanied by payment (by certified or official bank check to the order of the
Company payable in clearing house funds at the location where the Securities are
surrendered) of an amount equal to the interest thereon which the Holder is
entitled to receive on such interest payment date. Payment of interest shall be
made, on such interest payment date or such other payment date (as set forth in
Section 2.7), as the case may be, to the Holder of the Securities as of such
regular record date or special record date, as applicable. Except where
Securities surrendered for conversion must be accompanied by payment as
described above, no interest on converted Securities will be payable by the
Company on any interest payment date subsequent to the date of conversion. No
other payment or adjustment for interest or dividends is to be made upon
conversion. Notwithstanding the foregoing, upon conversion of any Original
Issue Discount Security, the fixed number of Common Shares into which such
Security is convertible delivered by the Company to the Holder thereof shall be
applied, first, to the portion attributable to the accrued original issue
discount relating to the period from the date of issuance to the date of
conversion of such Security, and, second, to the portion attributable to the
balance of the principal amount of such Security.
SECTION 13.5 Adjustment of Conversion Price. Unless otherwise
specified as contemplated by Section 2.3 for Securities of such Series, the
conversion price for Securities convertible into Common Shares shall be adjusted
from time to time as follows:
(a) In case the Company shall (x) pay a dividend or make a distribution on
Common Shares in Common Shares, (y) subdivide the outstanding Common Shares into
a greater number of shares or (z) combine the outstanding Common Shares into a
smaller number of shares, the conversion price for the Securities of such Series
shall be adjusted so that the Holder of any such Security thereafter surrendered
for conversion shall be entitled to receive the number of Common Shares which he
would have owned or have been entitled to receive after the happening of any of
the events described above had such Security been converted immediately prior to
the record date in the case of a dividend or the effective date in the case of
subdivision or combination. An adjustment made pursuant to
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this subsection (a) shall become effective immediately after the record date in
the case of a dividend, except as provided in subsection (h) below, and shall
become effective immediately after the effective date in the case of a
subdivision or combination.
(b) In case the Company shall issue rights or warrants to all holders of
Common Shares entitling them (for a period expiring within 45 days after the
record date mentioned below) to subscribe for or purchase Common Shares at a
price per share less than the current market price per share of Common Shares
(as defined for purposes of this subsection (b) in subsection (e) below), at the
record date for the determination of stockholders entitled to receive such
rights or warrants, 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 such record date
by a fraction, the numerator of which shall be the number of Common Shares
outstanding on such record date plus the number of Common Shares which the
aggregate offering price of the total number of Common Shares so offered would
purchase at such current market price, and the denominator of which shall be the
number of Common Shares outstanding on such record date plus the number of
additional Common Shares receivable upon exercise of such rights or warrants.
Such adjustment shall be made successively whenever any such rights or warrants
are issued, and shall become effective immediately, except as provided in
subsection (h) below, after such record date. In determining whether any rights
or warrants entitle the Holders of the Securities of such Series to subscribe
for or purchase Common Shares at less than such current market price, and in
determining the aggregate offering price of such Common Shares, there shall be
taken into account any consideration received by the Company for such rights or
warrants plus the exercise price thereof, the value of such consideration or
exercise price, as the case may be, if other than cash, to be determined by the
Board of Directors.
(c) In case the Company shall distribute to all holders of Common Shares
any shares of capital stock of the Company (other than Common Shares) or
evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Company) or rights or warrants
to subscribe for or purchase any of its securities (excluding those rights or
warrants referred to in subsection (b) above) (any of the foregoing being herein
in this subsection (c) called the "Special Securities"), then, in each such
case, unless the Company elects to reserve such Special Securities for
distribution to the Holders of Securities of such Series upon the conversion so
that any such Holder converting such Securities will receive upon such
conversion, in addition to the Common Shares to which such Holder is entitled,
the amount
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and kind of Special Securities which such Holder would have received if such
Holder had, immediately prior to the record date for the distribution of the
Special Securities, converted Securities into Common Shares, the conversion
price shall be adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to such record date
by a fraction the numerator of which shall be the current market price per share
(as defined for purposes of this subsection (c) in subsection (e) below) of
Common Shares on the record date mentioned above less the then fair market value
(as determined by the Board of Directors, whose determination shall, if made in
good faith, be conclusive) of the portion of the Special Securities so
distributed applicable to one Common Share, and the denominator of which shall
be the current market price per Common Shares (as defined in subsection (e)
below); provided, however, that in the event the then fair market value (as so
determined) of the portion of the Special Securities so distributed applicable
to one Common Share is equal to or greater than the current market price per
Common Share (as defined in subsection (e) below) on the record date mentioned
above, in lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder of Securities of such Series shall have the right to receive
the amount and kind of Special Securities such holder would have received had he
converted such Securities immediately prior to the record date for the
distribution of the Special Securities. Such adjustment shall become effective
immediately, except as provided in subsection (h) below, after the record date
for the determination of stockholders entitled to receive such distribution.
(d) If, pursuant to subsection (b) or (c) above, the conversion price shall
have been adjusted because the Company has declared a dividend, or made a
distribution, on the outstanding Common Shares in the form of any right or
warrant to purchase securities of the Company, or the Company has issued any
such right or warrant, then, upon the expiration of any such unexercised right
or unexercised warrant, the conversion price shall forthwith be adjusted to
equal the conversion price that would have applied had such right or warrant
never been declared, distributed or issued.
(e) For the purpose of any computation under subsection (b) above, the
current market price per Common Share on any date shall be deemed to be the
average of the reported last sales prices for the thirty consecutive Trading
Days (as defined below) commencing forty-five Trading Days before the date in
question. For the purpose of any computation under subsection (c) above, the
current market price per Common Share on any date shall be deemed to be the
average of the reported last sales prices for the ten consecutive Trading Days
before the date in question. The reported last sales price for each day
(whether for purposes of subsection (b) or
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subsection (c)) shall be the reported last sales price, regular way, or, in case
no sale takes place on such day, the average of the reported closing bid and
asked prices, regular way, in either case as reported on the New York Stock
Exchange Composite Tape or, if the Common Shares are not listed or admitted to
trading on the New York Stock Exchange, on the principal national securities
exchange on which the Common Shares are listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on the
National Market System of the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or, if the Common Shares are not quoted
on such National Market System, the average of the closing bid and asked prices
on such day in the over-the-counter market as reported by NASDAQ or, if bid and
asked prices for the Common Shares on each such day shall not have been reported
through NASDAQ, the average of the bid and asked prices for such day as
furnished by any New York Stock Exchange member firm regularly making a market
in the Common Shares selected for such purpose by the Board of Directors or a
committee thereof or, if no such quotations are available, the fair market value
of the Common Shares as determined by a New York Stock Exchange member firm
regularly making a market in the Common Shares selected for such purpose by the
Board of Directors or a committee thereof. As used herein, the term "Trading
Day" with respect to the Common Shares means (x) if the Common Shares are listed
or admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock Exchange or such other
national securities exchange is open for business or (y) if the Common Shares
are quoted on the National Market System of the NASDAQ, a day on which trades
may be made on such National Market System or (z) otherwise, any day other than
a Saturday or Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to close.
(f) 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 (f)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment; and, provided, further, that adjustment shall be
required and made in accordance with the provisions of this Article Thirteen
(other than this subsection (f)) not later than such time as may be required in
order to preserve the tax free nature of a distribution to the holders of Common
Shares. All calculations under this Article Thirteen shall be made to the
nearest cent or to the nearest 1/100 of a share, as the case may be, with one-
half cent and 1/200 of a share, respectively, being rounded upward. Anything in
this Section 13.5 to the contrary notwithstanding, the Company shall be entitled
to make such reductions in the
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<PAGE>
conversion price, in addition to those required by this Section 13.5, as it in
its discretion shall determine to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights or warrants to purchase stock or
securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its shareholders shall not be taxable.
(g) Whenever the conversion price is adjusted, as herein provided, the
Company shall promptly file with the Trustee, at the Corporate Trust Office of
the Trustee, and with the office or agency maintained by the Company for the
conversion of Securities of such Series pursuant to Section 3.2, an Officers'
Certificate, setting forth the conversion price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment, which
certificate shall be conclusive evidence of the correctness of such adjustment.
Neither the Trustee nor any conversion agent shall be under any duty or
responsibility with respect to any such certificate or any facts or computations
set forth therein, except to exhibit said certificate from time to time to any
Holder of a Security of such Series desiring to inspect the same. The Company
shall promptly cause a notice setting forth the adjusted conversion price to be
mailed to the Holders of Securities of such Series, as their names and addresses
appear upon the Security register of the Company.
(h) In any case in which this Section 13.5 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 (y) issuing to the Holder of any
Security of such Series converted after such record date and before the
occurrence of such event the additional Common Shares issuable upon such
conversion by reason of the adjustment required by such event over and above the
Common Shares issuable upon such conversion before giving effect to such
adjustment and (z) paying to such holder any amount in cash in lieu of any
fractional Common Shares pursuant to Section 13.6 hereof.
SECTION 13.6 No Fractional Shares to be Issued. No fractional Common
Shares shall be issued upon any conversion of Securities. If more than one
Security of any Series shall be surrendered for conversion at one time by the
same Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities of such Series (or specified portions thereof to the extent permitted
hereby) so surrendered. Instead of a fraction of a share of Common Stock which
would otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment (computed
to the nearest cent, with one-half cent being rounded upward) in respect of such
fraction of a share in an amount
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equal to the same fractional interest of the reported last sales price (as
defined in Section 13.5(e)) of the Common Shares on the Trading Day (as defined
in Section 13.5(e)) next preceding the day of conversion.
SECTION 13.7 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Conveyance. In case of any consolidation of the Company with,
or merger of the Company into, any other corporation (other than a consolidation
or merger in which the Company is the continuing corporation), or in the case of
any sale or transfer of all or substantially all of the assets of the Company,
the corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, in accordance with the provisions of Articles Eight and
Nine as they relate to supplemental indentures, providing that the Holder of
each Security then Outstanding of a Series which was convertible into Common
Shares shall have the right thereafter to convert such Security into the kind
and amount of shares of stock and other securities and property, including cash,
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of Common Shares of the Company into which such Securities might have
been converted immediately prior to such consolidation, merger, sale or
transfer. Such supplemental indenture shall conform to the provisions of the
Trust Indenture Act of 1939 as then in effect and shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Thirteen. Neither the Trustee nor any conversion
agent shall have any liability or responsibility for determining the correctness
of any provision contained in any such supplemental indenture relating either to
the kind or amount of shares of stock or other securities or property receivable
by Holders of the Securities upon the conversion of their Securities after any
such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect thereto and, subject to the provisions of Section 313 of the Trust
Indenture Act of 1939, may accept as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon, an Officers'
Certificate with respect thereto and an Opinion of Counsel with respect to legal
matters related thereto. If in the case of any such consolidation, merger, sale
or transfer, the stock or other securities and property receivable by a Holder
of the Securities includes stock or other securities and property of a
corporation other than the successor or purchasing corporation, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Securities as the Board of Directors shall reasonably consider necessary.
The above provisions of this Section 13.7 shall similarly apply to successive
consolidations, mergers, sales or transfers.
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<PAGE>
SECTION 13.8 Notice to Holders of the Securities of a Series Prior to
Taking Certain Types of Action. With respect to the Securities of any Series,
in case:
(a) the Company shall authorize the issuance to all holders of Common
Shares of rights or warrants to subscribe for or purchase shares of its capital
stock or of any other right;
(b) the Company shall authorize the distribution to all holders of Common
Shares of evidences of indebtedness or assets (except for cash dividends or
distributions paid from retained earnings of the Company);
(c) of any subdivision or combination of Common Shares or of any
consolidation or merger to which the Company is a party and for which approval
by the 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;
then the Company shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such Series
pursuant to Section 3.2, and shall cause to be mailed to the Holders of
Securities of such Series, at their last addresses as they shall appear on the
Security register of the Company, at least ten days prior to the applicable
record date hereinafter specified, a notice stating (i) the date as of which the
holders of Common Shares to be entitled to receive any such rights, warrants or
distribution are to be determined, or (ii) the date on which any such
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become effective, and the
date as of which it is expected that holders of record of Common Shares shall be
entitled to exchange their Common Shares for securities or other property, if
any, deliverable upon such subdivision, combination, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action. The
failure to give the notice required by this Section 13.8 or any defect therein
shall not affect the legality or validity of any distribution, right, warrant,
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action, or the vote upon any of the foregoing.
SECTION 13.9 Covenant to Reserve Shares for Issuance on Conversion of
Securities. The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Common Shares, free from
preemptive rights, solely for the purpose of issue upon conversion of Securities
of any Series as herein provided, such number of Common Shares as shall then be
issuable upon the conversion of all Outstanding Securities of such
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Series. The Company covenants that all Common Shares which shall be so issuable
shall, when issued or delivered, be duly and validly issued Common Shares into
which Securities of such Series are convertible, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of the
Company will be duly credited.
SECTION 13.10 Compliance with Governmental Requirements. The Company
covenants that if any Common Shares required to be reserved for purposes of
conversion of Securities hereunder require registration or listing with or
approval of any governmental authority under any Federal or State law, pursuant
to the Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended, or any national or regional securities exchange on which the
Common Shares are listed at the time of delivery of any Common Shares, before
such shares may be issued upon conversion, the Company will use its best efforts
to cause such shares to be duly registered, listed or approved, as the case may
be.
SECTION 13.11 Payment of Taxes upon Certificates for Shares Issued
upon Conversion. The issuance of certificates for Common Shares upon the
conversion of Securities shall be made without charge to the converting Holders
for any tax (including, without limitation, all documentary and stamp taxes) in
respect of the issuance and delivery of such certificates, and such certificates
shall be issued in the respective names of, or in such names as may be directed
by, the holders of the Securities converted; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security converted, and the Company shall
not be required to issue or deliver such certificate unless or until the Person
or Persons requesting the issuance 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 13.12 Trustee's Duties with Respect to Conversion Provisions.
The Trustee and any conversion agent shall have no duty, responsibility or
liability to any Holder to determine whether any facts exist which may require
any adjustment of the conversion rate, or with respect to the nature or extent
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. Neither the Trustee nor any conversion agent shall be accountable with
respect to the registration under securities laws, listing, validity or value
(or the kind or amount) of any Common Shares, or of any other securities or
property, which may at any time be issued or delivered upon the conversion of
any Security, and neither the Trustee nor any conversion agent makes any
representation with
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respect thereto. Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to make any cash payment or to issue,
transfer or deliver any shares of stock or stock certificates or other
securities or property upon the surrender of any Security for the purpose of
conversion; and the Trustee and any conversion agent, subject to the provisions
of Section 313 of the TIA, shall not be responsible for any failure of the
Company to comply with any of the covenants of the Company contained in this
Article Thirteen.
SECTION 13.13 Conversion of Securities Into Preferred Stock.
Notwithstanding anything to the contrary in this Article Thirteen, the Company
may issue Securities that are convertible into Preferred Shares, including
Preferred Shares convertible into Common Shares, in which case all terms and
conditions relating to the conversion of Securities into Preferred Shares,
including any terms similar to those provided in Sections 13.1 through 13.12,
shall be as provided in or pursuant to an appropriate resolution of the Board of
Directors or in any indenture supplemental hereto or as otherwise contemplated
by Section 2.3.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereto affixed and
attested, all as of the day and year first above written.
FMC CORPORATION
By:___________________________
Name:
Title:
ATTEST:
By:_________________________
Name:
Title:
[CORPORATE SEAL]
HARRIS TRUST AND SAVINGS BANK,
as Trustee
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By:___________________________
Name:
Title:
ATTEST:
By:_________________________
Name:
Title:
[CORPORATE SEAL]
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EXHIBIT 4.6
================================================================================
FMC CORPORATION
AND
HARRIS TRUST AND SAVINGS BANK
Trustee
______________________
Subordinated Debt Securities
_______________________
INDENTURE
Dated as of _________, 1995
_______________________
================================================================================
<PAGE>
CROSS REFERENCE SHEET*
between
Provisions of Sections 310 through 318(a) inclusive of the Trust
Indenture Act of 1939, as amended, and the Indenture dated as of ______, 1995
between FMC Corporation and Harris Trust and Savings Bank, as Trustee.
<TABLE>
<CAPTION>
SECTION OF ACT SECTION OF INDENTURE
- ---------------- ---------------------------
<S> <C>
310(a)(1)........................... 6.10
310(a)(2)........................... 6.10
310(a)(3)........................... N/A
310(a)(4)........................... N/A
310(a)(5)........................... 6.10
310(b).............................. 6.10
310(c).............................. N/A
311(a).............................. 6.11
311(b).............................. 6.11
311(b)(2)........................... 6.11
311(c).............................. N/A
312(a).............................. 4.1
312(b).............................. 4.2(b)
312(c).............................. 4.2(c)
313(a).............................. 6.6
313(b).............................. 6.6
313(c).............................. 6.6
313(d).............................. 6.6
314(a).............................. 4.3
314(b).............................. N/A
314(c)(1)........................... 2.4 and 11.5
314(c)(2)........................... 2.4 and 11.5
314(c)(3)........................... N/A
314(d).............................. N/A
314(e).............................. 11.5
315(a).............................. 6.1(b)
315(b).............................. 6.5
315(c).............................. 6.1(a)
315(d)(1)........................... 6.1(b)(1) and 6.1(b)(2)
315(d)(2)........................... 6.1(c)(2)
315(d)(3)........................... 6.1(c)(3)
315(e).............................. 5.10
316(a)(1)(A)........................ 5.8
316(a)(1)(B)........................ 5.9
316(a)(2)........................... N/A
316(b).............................. 5.6
316(c).............................. 2.7
317(a)(1)........................... 5.2
317(a)(2)........................... 5.2
317(b).............................. 3.2 and 3.3
318(a).............................. 11.7
</TABLE>
* This cross reference sheet shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
Attention should also be directed to Section 318(c) of the Trust
Indenture Act of 1939, as amended, which provides that the provisions of
Sections 310 through 317 of such Act are a part of and govern every qualified
indenture, whether or not physically contained therein.
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<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
A R T I C L E O N E
<S> <C>
DEFINITIONS............................................................. 1
SECTION 1.1 Certain Terms Defined...................................... 1
Board of Directors................................................. 2
Business Day....................................................... 2
Commission......................................................... 2
Company............................................................ 2
Company Notice..................................................... 2
Corporate Trust Office............................................. 2
defaulted interest................................................. 2
Depository......................................................... 2
Depository Security................................................ 3
defeasance......................................................... 3
Dollar............................................................. 3
Event of Default................................................... 3
Government Obligations............................................. 3
Holder,............................................................ 3
Holder of Securities,.............................................. 3
Indenture.......................................................... 3
Officers' Certificate.............................................. 3
Opinion of Counsel................................................. 3
original issue date................................................ 4
Outstanding........................................................ 4
Paying Agent....................................................... 4
Person............................................................. 5
person............................................................. 5
Place of Payment,.................................................. 5
principal.......................................................... 5
Responsible Officer................................................ 5
Security........................................................... 5
Securities......................................................... 5
Series............................................................. 6
Series of Securities............................................... 6
Subsidiary......................................................... 6
Trustee............................................................ 6
Trust Indenture Act of 1939........................................ 6
TIA................................................................ 6
United States of America........................................... 6
vice president..................................................... 6
A R T I C L E T W O
SECURITIES......................................................... 6
SECTION 2.1 Forms Generally...................................... 6
SECTION 2.2 Form of Trustee's Certificate of Authentication...... 7
SECTION 2.3 Amount Unlimited; Issuable in Series................. 7
SECTION 2.4 Authentication and Delivery of Securities............10
</TABLE>
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<PAGE>
<TABLE>
<S> <C> <C>
SECTION 2.5 Execution of Securities.................................... 11
SECTION 2.6 Certificate of Authentication.............................. 11
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.. 12
SECTION 2.8 Registration, Transfer and Exchange........................ 13
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities.. 14
SECTION 2.10 Cancellation of Securities; Destruction Thereof............ 15
SECTION 2.11 Temporary Securities....................................... 16
SECTION 2.12 Securities in Global Form.................................. 16
A R T I C L E T H R E E
COVENANTS OF THE COMPANY................................................. 17
SECTION 3.1 Payment of Principal and Interest.......................... 17
SECTION 3.2 Offices for Payment, etc................................... 17
SECTION 3.3 Paying Agents.............................................. 18
SECTION 3.4 Written Statement to Trustee............................... 19
A R T I C L E F O U R
SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE........ 19
SECTION 4.1 Company to Furnish Trustee Information as to
Names and Addresses of Securityholders..................... 19
SECTION 4.2 Preservation and Disclosure of Security-holders' Lists..... 19
SECTION 4.3 Reports by the Company..................................... 21
A R T I C L E F I V E
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT.......... 22
SECTION 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default................................ 22
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee
May Prove Debt............................................. 24
SECTION 5.3 Application of Proceeds.................................... 26
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings........ 27
SECTION 5.5 Limitations on Suits by Securityholders................... 27
SECTION 5.6 Unconditional Right of Securityholders to
Institute Certain Suits.................................... 28
SECTION 5.7 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default............................. 28
SECTION 5.8 Control by Securityholders................................. 28
SECTION 5.9 Waiver of Past Defaults.................................... 29
SECTION 5.10 Right of Court to Require Filing of
Undertaking to Pay Costs................................... 29
SECTION 5.11 Suits for Enforcement...................................... 30
</TABLE>
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<TABLE>
<CAPTION>
A R T I C L E S I X
<S> <C> <C>
CONCERNING THE TRUSTEE.................................................. 30
SECTION 6.1 Duties of Trustee......................................... 30
SECTION 6.2 Rights of Trustee......................................... 31
SECTION 6.3 Individual Rights of Trustee.............................. 33
SECTION 6.4 Trustee's Disclaimer...................................... 33
SECTION 6.5 Notice of Defaults........................................ 33
SECTION 6.6 Reports by Trustee to Holders............................. 33
SECTION 6.7 Compensation and Indemnity................................ 34
SECTION 6.8 Replacement of Trustee.................................... 34
SECTION 6.9 Successor Trustee by Merger............................... 35
SECTION 6.10 Eligibility; Disqualification............................. 35
SECTION 6.11 Preferential Collection of Claims Against Company......... 36
A R T I C L E S E V E N
CONCERNING THE SECURITYHOLDERS.......................................... 36
SECTION 7.1 Evidence of Action Taken by Securityholders............... 36
SECTION 7.2 Proof of Execution of Instruments......................... 36
SECTION 7.3 Holders to Be Treated as Owners........................... 36
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding........ 37
SECTION 7.5 Right of Revocation of Action Taken....................... 37
A R T I C L E E I G H T
SUPPLEMENTAL INDENTURES................................................. 38
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders........................................... 38
SECTION 8.2 Supplemental Indentures With Consent of Securityholders... 39
SECTION 8.3 Effect of Supplemental Indenture.......................... 40
SECTION 8.4 Documents to Be Given to Trustee.......................... 40
SECTION 8.5 Notation on Securities in Respect of
Supplemental Indentures................................... 40
A R T I C L E N I N E
CONSOLIDATION, MERGER, SALE OR CONVEYANCE............................... 41
SECTION 9.1 Company May Consolidate, etc. on Certain Terms............ 41
SECTION 9.2 Successor Corporation Substituted......................... 41
SECTION 9.3 Opinion of Counsel to Trustee............................. 42
</TABLE>
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<PAGE>
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE: UNCLAIMED MONEYS............. 42
SECTION 10.1 Satisfaction and Discharge of Indenture............... 42
SECTION 10.2 Application by Trustee of Funds Deposited for
Payment of Securities................................. 45
SECTION 10.3 Repayment of Moneys Held by Paying Agent.............. 45
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and
Paying Agent.......................................... 46
SECTION 10.5 Reinstatement of Company's Obligations................ 46
ARTICLE ELEVEN MISCELLANEOUS PROVISIONS.................................... 47
SECTION 11.1 Incorporators, Stockholders, Officers and
Directors of Company Exempt from Individual
Liability............................................. 47
SECTION 11.2 Provisions of Indenture for the Sole Benefit
of Parties and Securityholders........................ 47
SECTION 11.3 Successors and Assigns of Company Bound by Indenture.. 47
SECTION 11.4 Notices and Demands on Company, Trustee and
Securityholders....................................... 47
SECTION 11.5 Officers' Certificates and Opinions of
Counsel; Statements to Be Contained Therein........... 48
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays....... 49
SECTION 11.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939........................... 49
SECTION 11.8 Illinois Law to Govern................................ 49
SECTION 11.9 Counterparts.......................................... 50
SECTION 11.10 Effect of Headings; Gender............................ 50
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS............................ 50
SECTION 12.1 Applicability of Article.............................. 50
SECTION 12.2 Notice of Redemption; Partial Redemptions............. 50
SECTION 12.3 Payment of Securities Called for Redemption........... 52
SECTION 12.4 Exclusion of Certain Securities from
Eligibility for Selection for Redemption.............. 52
SECTION 12.5 Mandatory and Optional Sinking Fund................... 53
SECTION 12.6 Repayment at the Option of the Holder................. 55
SECTION 12.7 Conversion Arrangement on Call for Redemption......... 55
ARTICLE THIRTEEN
CONVERSION OF SECURITIES.............................................. 56
SECTION 13.1 Applicability of Article.............................. 56
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<PAGE>
SECTION 13.2 Right of Holders to Convert Securities into
Common Shares......................................... 56
SECTION 13.3 Issuance of Common Shares on Conversions.............. 57
SECTION 13.4 No Payment or Adjustment for Interest or
Dividends............................................. 58
SECTION 13.5 Adjustment of Conversion Price........................ 59
SECTION 13.6 No Fractional Shares to be Issued..................... 63
SECTION 13.7 Preservation of Conversion Rights upon
Consolidation, Merger, Sale or Conveyance............. 64
SECTION 13.8 Notice to Holders of the Securities of a
Series Prior to Taking Certain Types of
Action................................................ 64
SECTION 13.9 Covenant to Reserve Shares for Issuance on
Conversion of Securities.............................. 65
SECTION 13.10 Compliance with Governmental Requirements............. 66
SECTION 13.11 Payment of Taxes upon Certificates for Shares
Issued upon Conversion................................ 66
SECTION 13.12 Trustee's Duties with Respect to Conversion
Provisions............................................ 66
SECTION 13.13 Conversion of Securities Into Preferred Stock......... 67
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES........................................... 67
SECTION 14.1 Securities Subordinated to Senior Indebtedness........ 67
SECTION 14.2 Subrogation........................................... 69
SECTION 14.3 Obligation of the Company Unconditional............... 69
SECTION 14.4 Payments on Securities Permitted...................... 70
SECTION 14.5 Effectuation of Subordination by Trustee.............. 70
SECTION 14.6 Knowledge of Trustee.................................. 70
SECTION 14.7 Trustee May Hold Senior Indebtedness.................. 71
SECTION 14.8 Rights of Holders of Senior Indebtedness Not
Impaired.............................................. 71
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<PAGE>
THIS INDENTURE, dated as of ___________, 1995 between FMC CORPORATION,
a Delaware corporation (the "Company"), and HARRIS TRUST AND SAVINGS BANK, an
Illinois banking corporation (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Company has duly authorized the issue from time to time
of its unsecured subordinated debentures, notes or other evidences of
indebtedness (the "Securities") to be issued in one or more Series; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchase of the Securities by
the Holders thereof, it is mutually agreed for the equal and proportionate
benefit of the Holders from time to time of the Securities or of Series thereof
as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939, as
amended, or the definitions of which in the Securities Act of 1933, as amended,
are referred to in the Trust Indenture Act of 1939, as amended, including terms
defined therein by reference to the Securities Act of 1933, as amended (except
as herein otherwise expressly provided or unless the context otherwise clearly
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. The words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole, as supplemented and amended
from time to time, and not to any particular Article, Section or other
subdivision. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
<PAGE>
"Board of Directors" means either the Board of Directors of the
Company or any duly authorized committee of that Board or any duly authorized
committee created by that Board.
"Business Day" means, except as may otherwise be provided in the form
of Securities of any particular Series, with respect to any Place of Payment or
place of publication, any day, other than a Saturday or Sunday, or a day on
which banking institutions are authorized or required by law or regulation to
close in that Place of Payment, place of publication or where the principal
corporate trust office of the Trustee is located.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or if at any time after the execution and delivery of this Indenture
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.
"Common Shares" means the shares of common stock, par value $0.10 per
share, of the Company as they exist on the date of this Indenture, or any other
shares of capital stock of the Company into which such shares shall be
reclassified or changed.
"Company" means FMC Corporation, a Delaware corporation, 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 Notice" means the confirmation of the Company, signed by an
officer, received by the Trustee, of the terms of the issuance of any
Securities.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Indenture
is located at 311 West Monroe Street, Chicago, Illinois 60606.
"defaulted interest" has the meaning specified in Section 2.7.
"Depository" shall mean, with respect to Securities of any Series for
which the Company shall determine that such Securities will be issued as a
Depository Security, The Depository Trust Company, New York, New York, or
another clearing agency or any successor registered under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation,
which, in each case, shall be designated by the Company pursuant to Sections 2.3
and 2.12.
-2-
<PAGE>
"Depository Security" shall mean, with respect to any Series of
Securities, a Security executed by the Company and authenticated and delivered
by the Trustee to the Depository or pursuant to the Depository's instruction,
all in accordance with this Indenture and pursuant to a resolution of the Board
of Directors as contemplated by Section 2.3, which (i) shall be registered as to
principal and interest in the name of the Depository or its nominee and (ii)
shall represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such Series.
"defeasance" has the meaning specified in Section 10.1(B).
"Dollar" means the coin or currency of the United States of America
which as of the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 5.1.
"Government Obligations" means, unless otherwise specified pursuant
to Section 2.3, securities which are (i) direct obligations of the United States
government or (ii) obligations of a Person controlled or supervised by, or
acting as an agency or instrumentality of, the United States government, the
payment of which obligations is unconditionally guaranteed by such government,
and which, in either case, are full faith and credit obligations of such
government, and which are not callable or redeemable at the option of the issuer
thereof.
"Holder," " Holder of Securities," "Registered Holder,"
"Securityholder" or other similar terms mean the Person in whose name at the
time a particular Security is registered in the Security register.
"Indenture" means this instrument as originally executed or as it may
from time to time be amended or supplemented as herein provided, as so amended
or supplemented or both, and shall include the forms and terms of particular
Series of Securities established as contemplated by Section 2.3.
"Officers' Certificate" means a certificate signed on behalf of the
Company by the chairman of the Board of Directors or the vice chairman or the
president or any vice president and by the treasurer, the controller, any
assistant treasurer, the secretary or any assistant secretary of the Company and
delivered to the Trustee. Each such certificate shall include the statements
provided for in Section 11.5.
"Opinion of Counsel" means a written opinion of legal counsel who may
be an employee of or counsel to the Company and who
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shall be reasonably acceptable to the Trustee. Each Opinion of Counsel shall
include the statements provided for in Section 11.5, if and to the extent
required hereby.
"original issue date" of any Security (or portion thereof) means the
date set forth as such on such Security.
"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 5.1.
"Outstanding," when used with reference to Securities, shall, subject
to the provisions of Section 7.4, mean, as of any particular time, all
Securities authenticated and delivered under this Indenture, except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount and in the required
currency shall have been deposited in trust with the Trustee or with any
Paying Agent (other than the Company) or shall have been set aside,
segregated and held in trust by the Company for the holders of such
Securities (if the Company shall act as its own Paying Agent), provided
that if such securities, or portions thereof, are to be redeemed prior to
the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been
made for giving such notice;
(c) Securities in substitution for which other Securities shall
have been authenticated and delivered, or which shall have been paid,
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee and the Company is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Company);
(d) Securities converted into Common Shares or Preferred Shares
in accordance with or as contemplated by this Indenture; and
(e) Securities with respect to which the Company has effected
defeasance as provided in Article Ten.
"Paying Agent" means any Person (which may include the Company)
authorized by the Company to pay the principal of or interest, if any, on any
Security on behalf of the Company.
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"Person" or " 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 any
Series, means the place or places where the principal of and interest, if any,
on the Securities of that Series are payable as specified pursuant to Section
3.2.
"Preferred Shares" means any shares of capital stock issued by the
Company that are entitled to a preference or priority over the Common Shares
upon any distribution of the Company's assets, whether by dividend or upon
liquidation.
"principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any."
"Responsible Officer" when used with respect to the Trustee shall
mean any officer within the corporate trust department (or any successor
department) of the Trustee including any vice president, assistant vice
president, assistant secretary, senior trust officer, trust officer or any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred at the
Corporate Trust Office because of his or her 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 securities
authenticated and delivered under this Indenture.
"Senior Indebtedness" means (i) the principal of and premium, if any,
and unpaid interest on indebtedness for money borrowed, (ii) purchase money and
similar obligations, (iii) obligations under capital leases, (iv) guarantees,
assumptions or purchase commitments relating to, or other transactions as a
result of which the Company is responsible for the payment of, such indebtedness
of others, (v) renewals, extensions and refunding of any such indebtedness, (vi)
interest or obligations in respect of any such indebtedness accruing after the
commencement of any insolvency or bankruptcy proceedings; and (vii) obligations
associated with derivative products such as interest rate and currency exchange
contracts, foreign exchange contracts, commodity contracts, and similar
arrangements, unless, in each case, the instrument by which the Company
incurred, assumed or guaranteed the indebtedness or obligations described in
clauses (i) through (vii) hereof expressly provides that such indebtedness or
obligation is not senior in right of payment to the Securities.
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"Series" or " Series of Securities" means all Securities of a similar
tenor authorized by a particular resolution of the Board of Directors.
"Subsidiary" means (i) a corporation, a majority of whose capital
stock with voting power, under ordinary circumstances, to elect directors is, at
the date of determination, directly or indirectly owned by the Company, by one
or more Subsidiaries of the Company or by the Company and one or more
Subsidiaries of the Company, (ii) a partnership in which the Company or a
Subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a Subsidiary of the Company or the Company
and one or more Subsidiaries of the Company, directly or indirectly, at the date
of determination, has (x) at least a majority ownership interest or (y) the
power to elect or direct the election of a majority of the directors or other
governing body of such person.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof until a successor Trustee shall have become such pursuant to
the provision hereof, and thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any Series shall
mean the Trustee with respect to Securities of that Series.
"Trust Indenture Act of 1939" or " TIA" (except as otherwise provided
in, Sections 8.1 and 8.2) means the Trust Indenture Act of 1939, as amended as
in force at the date as of which this Indenture was originally executed.
"United States of America" means the United States of America
(including the states and the District of Columbia), its territories,
possessions, the Commonwealth of Puerto Rico and other areas subject to its
jurisdiction.
"vice president" when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title of "vice president."
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each Series shall be
substantially in such form (including temporary or definitive global form) as
shall be established by or pursuant to a resolution of the Board of Directors or
in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or
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permitted by this Indenture (the provisions of which shall be appropriate to
reflect the terms of the Series of Securities represented thereby) and may have
imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant thereto, or with any
rules of any securities exchange or to conform to general usage, all as may be
determined by the officers executing such Securities as evidenced by their
execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
(determined by the officers executing such Securities as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the Series designated herein and
referred to in the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK, as Trustee
By:________________________________
Authorized Signatory
or
HARRIS TRUST AND SAVINGS BANK, as Trustee
By:________________________________,
as Authentication Agent
By:________________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more Series. There shall be
established in or pursuant to a resolution of the Board of Directors and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any Series,
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(1) the title of the Securities of the Series (which title shall
distinguish the Securities of the Series from all other Securities issued by the
Company);
(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
2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than 100% of their principal amount, the percentage of their
principal amount at which the Securities of the Series will be offered for sale
to the public;
(4) the date or dates on which the principal of the Securities of the
Series is payable or the method of determination thereof;
(5) the rate or rates (which may be fixed or variable), or the method or
methods of determination thereof, at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest shall accrue,
the interest payment dates on which such interest shall be payable and the
record dates for the determination of Holders to whom interest is payable;
(6) the place or places where the principal and interest, if any, on
Securities of the Series shall be payable (if other than as provided in Section
3.2);
(7) the price or prices at which, the period or periods within which and
the terms and conditions upon which Securities of the Series may be redeemed, in
whole or in part, at the option of the Company;
(8) if other than the principal amount thereof, the portion of the
principal amount of Securities of the Series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 5.1 or
provable in bankruptcy pursuant to Section 5.2;
(9) the obligation, if any, of the Company to redeem, purchase or repay
Securities of the Series whether pursuant to any sinking fund or analogous
provisions or pursuant to other provisions set forth therein or at the option of
a Holder thereof and the price or prices at which and the period or periods
within which and the terms and conditions upon which Securities of the Series
shall be redeemed, purchased or repaid, in whole or in part;
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(10) if other than denominations of $1,000, and any integral multiple
thereof, the denominations in which Securities of the Series shall be issuable;
(11) the form of the Securities, including such legends as required by law
or as the Company deems necessary or appropriate and the form of any temporary
global security which may be issued;
(12) whether, and under what circumstances, the Securities of any Series
shall be convertible into Securities of any other Series and, if so, the terms
and conditions upon which such conversion will be effected including the initial
conversion price or rate, the conversion period and other provisions in addition
to or in lieu of those described herein;
(13) if other than the Trustee, any trustees, authenticating or Paying
Agents, transfer agents or registrars or any other agents with respect to the
Securities of such Series;
(14) if the Securities of such Series do not bear interest, the applicable
dates for purposes of Section 4.1 hereof;
(15) whether the Securities of such Series are to be issuable in whole or
in part in the form of one or more Depository Securities, and, in such case, the
Depository for such Securities;
(16) the application, if any, of Section 10.1(B)(ii) to the Securities of
the Series;
(17) the obligation, if any, of the Company to permit the conversion of the
Securities of such Series into the Company's Common Shares or Preferred Shares
(and the class thereof), as the case may be, and the terms and conditions upon
which such conversion shall be effected (including, without limitation, the
initial conversion price or rate, the conversion period, any adjustment of the
applicable conversion price or rate and any requirements relative to reservation
of shares for purposes of conversion); and
(18) any other terms or conditions upon which the Securities of the Series
are to be issued (which terms shall not be inconsistent with the provisions of
this Indenture).
All Securities of any one Series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such resolution of the Board of Directors or in any such indenture
supplemental hereto. All
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Securities of any one Series need not be issued at the same time, and unless
otherwise provided, a Series may be reopened for issuances of additional
Securities of such Series.
SECTION 2.4 Authentication and Delivery of Securities. At any time
and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities of any Series executed by the Company to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
make available for delivery such Securities to or upon the written order of the
Company, signed by both (a) the chairman of its Board of Directors, or its
president or any vice president and (b) its treasurer or any assistant
treasurer, secretary or any assistant secretary without any further action by
the Company. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive and (subject to Section 6.1) shall be fully
protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of Directors
relating to such Series, in each case certified by the secretary or an
assistant secretary of the Company;
(2) a supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and terms of the
Securities of such Series as required pursuant to Sections 2.1 and 2.3,
respectively, and prepared in accordance with Section 11.5; and
(4) an Opinion of Counsel, prepared in accordance with Section 11.5,
which shall state
(a) that the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board of Directors or
by a supplemental indenture as permitted by Sections 2.1 and 2.3 in
conformity with the provisions of this Indenture and in conformity with
such resolution; and
(b) that such Securities have been duly authorized, and, when
authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in such opinion of
counsel, will constitute valid and binding obligations of the Company
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or other
laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
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The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under this Indenture in a manner not reasonably acceptable to the
Trustee.
SECTION 2.5 Execution of Securities. The Securities shall be signed
on behalf of the Company by both (a) the chairman of its Board of Directors or
its president or any vice president and (b) its treasurer or any assistant
treasurer or its secretary or any assistant secretary, under its corporate seal
which may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of such officers. The seal of the Company may be in the
form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Securities. Typographical and other minor errors or
defects in any such reproduction of the seal or any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Company, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Company; and any Security may be signed on behalf of the Company by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Company, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited and executed by the Trustee by the manual signature of one
of its authorized signatories shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Company shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been duly
authenticated and delivered hereunder but never issued and sold by the Company,
the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 2.10 together with a written statement (which need not
comply with Section 11.5 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 the Indenture such Security shall be deemed never
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to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of the Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities shall be issuable in denominations as shall be
specified as contemplated by Section 2.3. In the absence of any such
specification with respect to the Securities of any Series, Securities shall be
issuable in denominations of $1,000 and any integral multiple thereof, and
interest shall be computed on the basis of a 360-day year of twelve 30-day
months. The Securities shall be numbered, lettered, or otherwise distinguished
in such manner or in accordance with such plan as the officers of the Company
executing the same may determine with the approval of the Trustee as evidenced
by the execution and authentication thereof.
Each Security shall be dated the date of its authentication.
Unless otherwise provided as contemplated by Section 2.3, interest on
any Security which is payable, and is punctually paid or duly provided for, on
any interest payment date shall be paid to the person in whose name that
Security (or one or more predecessor securities) is registered at the close of
business on the regular record date for the payment of such interest.
The term "record date" as used with respect to any interest payment
date (except for a date for payment of defaulted interest) shall mean the date
specified as such in the terms of the Securities of any particular Series, or,
if no such date is so specified, the close of business on the fifteenth day
preceding such interest payment date, whether or not such record date is a
Business Day.
Any interest on any Security of any Series which is payable, but is
not punctually paid or duly provided for, on any interest payment date (called
"defaulted interest" for purposes of this Section) shall forthwith cease to be
payable to the Registered Holder on the relevant record date by virtue of his
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 clause (2) below:
(1) The Company may elect to make payment of any defaulted interest to
the persons in whose names any such Securities (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 Security of
such Series and the date of the proposed payment, and at the same time the
Company
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shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such defaulted interest or shall
make arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in trust
for the benefit of the persons entitled to such defaulted interest as in
this clause provided. Thereupon the Trustee shall fix a special record date
for the payment of such defaulted interest in respect of Securities of such
Series which shall be not more than 15 nor 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 thereof to be mailed,
first class postage prepaid, to each Registered Holder 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 in respect of Securities of such Series
shall be paid to the person in whose names such Securities (or their
respective predecessor Securities) are registered on such special record
date and such defaulted interest shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any defaulted interest on the
Securities of any Series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of that
Series 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 payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon 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 2.8 Registration, Transfer and Exchange. The Company will
cause to be kept at each office or agency to be maintained for the purpose as
provided in Section 3.2 a register or registers in which, subject to such
reasonable regulations as it may prescribe, the Company will provide for the
registration and the registration of the transfer of, the Securities. The
Trustee is hereby appointed Security registrar for purposes of registering, and
registering transfers of, the Securities.
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Upon surrender for registration of transfer of any Security of any
Series at any such office or agency to be maintained for the purpose as provided
in Section 3.2, the Company shall execute and the Trustee shall authenticate and
make available for delivery in the name of the transferee or transferees a new
Security or Securities of the same Series and of a like tenor and containing the
same terms (other than the principal amount thereof, if more than one Security
is executed, authenticated and delivered with respect to any security so
presented, in which case the aggregate principal amount of the executed,
authenticated and delivered Securities shall equal the principal amount of the
Security presented in respect thereof) and conditions.
All Securities issued upon any transfer or exchange of Securities
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Every Security presented or surrendered for registration of transfer
or exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by 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.
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 transfer or exchange of Securities, other than exchanges pursuant to
Sections 2.11, 8.5 or 12.3 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a 15-day period prior to the day of mailing
of the relevant notice of redemption or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except, in
the case of any Security to be redeemed in part, the portion thereof not
redeemed.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become mutilated
or defaced or be destroyed, lost or stolen, the Company shall execute, and upon
the written request of any officer of the Company, the Trustee shall
authenticate and make available for delivery a new Security of the same Series
and of like tenor and principal amount and with the same terms and conditions,
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated or defaced Security or in lieu of and substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security
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shall furnish to the Company and to the Trustee and to any agent of the Company
or the Trustee such security or indemnity as may be required by them to
indemnify and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Upon the issuance of any substitute Security, 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. In case any Security
which has matured or is about to mature or has been called for redemption in
full shall become mutilated or defaced or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
or defaced Security); provided, however, that unless otherwise provided pursuant
to Section 2.3, the applicant for such payment shall furnish to the Company and
to the Trustee and any agent of the Company or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and the Trustee and any agent of the Company or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security of any Series issued pursuant to the
provisions of this Section by virtue of the fact that any Security is destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone and shall be entitled to all the benefits of (but
shall be subject to all the limitations of rights set forth in) this Indenture
equally and proportionately with any and all other Securities of such Series
duly authenticated and delivered hereunder. All Securities shall be held and
owned upon the express condition that, to the extent permitted by law, the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Destruction Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, shall, if surrendered to the Company or any agent of the Company or the
Trustee, be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no
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Securities shall be issued in lieu thereof, except as expressly permitted by any
of the provisions of this Indenture. The Company may at any time deliver 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. The Trustee shall return cancelled
Securities held by it to the Company. If the Company shall acquire any of the
Securities, such acquisition shall not operate as a redemption or satisfaction
of the indebtedness represented by such Securities unless and until the same are
delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any Series, the Company may execute and the Trustee
shall authenticate and make available for delivery temporary Securities for such
Series (printed, lithographed, typewritten or otherwise reproduced, in each case
in form reasonably acceptable to the Trustee). Temporary Securities of any
Series may be issued of any authorized denomination, and substantially in the
form of the definitive Securities of such Series but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as
may be determined by the Company with the reasonable concurrence of the Trustee.
Temporary Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Security shall be executed by
the Company and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Company shall execute and shall
furnish definitive securities of such Series and thereupon temporary Securities
of such Series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Company for that purpose pursuant to
Section 3.2, and the Trustee shall authenticate and make available for delivery
in exchange for such temporary Securities of such Series a like aggregate
principal amount of definitive Securities of the same Series of authorized
denominations. Until so exchanged, the temporary Securities of any Series shall
be entitled to the same benefits under this Indenture as definitive Securities
of such Series.
SECTION 2.12 Securities in Global Form. If Securities of a Series
are issuable in global form, as specified as contemplated by Section 2.3, then,
notwithstanding clause (10) of Section 2.3 and the provisions of Section 2.7,
such Security shall represent such of the Outstanding Securities of such series
as shall be specified therein and may provide that it shall represent the
aggregate amount of Outstanding Securities from time to time endorsed thereon
and that the aggregate amount of Outstanding Securities represented thereby may
from time to time be reduced to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of
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Outstanding Securities represented thereby may 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 2.4. Subject to the provisions of Section 2.4, the Trustee
shall deliver and redeliver any Security in definitive global form in the manner
and upon written instructions given by the Person or Persons specified therein
or in the applicable company order. If a company order pursuant to Section 2.4
has been, or simultaneously is, delivered, any instructions by the Company with
respect to endorsement or delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 11.5 and need not be
accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 2.6 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 11.5 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 2.6.
Notwithstanding the provisions of Sections 2.3 and 2.7, unless
otherwise specified as contemplated by Section 2.3, payment of principal of and
any interest on any Security in definitive global form shall be made to the
Person or Persons specified therein.
Except as provided in the preceding paragraph, the Company, the
Trustee and any agent of the Company and the Trustee shall treat a Person as the
Holder of such principal amount of outstanding Securities represented by a
definitive global Security as shall be specified in a written statement of the
Holder of such definitive global Security.
ARTICLE THREE
COVENANTS OF THE COMPANY
SECTION 3.1 Payment of Principal and Interest. The Company covenants
and agrees for the benefit of each particular Series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such Series in accordance with the terms of the
Securities of such Series and this Indenture.
SECTION 3.2 Offices for Payment, etc. So long as any of the
Securities remain outstanding, the Company will maintain the following for each
Series: an office or agency (a) where the Securities may be presented for
payment or conversion, (b) where
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the Securities may be presented for registration of transfer and for exchange as
in this Indenture provided, and (c) where notices and demands to or upon the
Company in respect of the Securities or of this Indenture may be served. The
Company will give to the Trustee written notice of the location of any such
office or agency and of any change of location thereof. In case the Company
shall fail to so designate or maintain any such office or agency or shall fail
to give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the Corporate
Trust Office. Unless otherwise specified pursuant to Section 2.3, the Trustee
is hereby appointed Paying Agent.
SECTION 3.3 Paying Agents. Whenever the Company shall appoint a
Paying Agent other than the Trustee with respect to the Securities of any
Series, it will cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such Agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such Agent for the
payment of the principal of or interest on the Securities of such Series
(whether such sums have been paid to it by the Company or by any other obligor
on the Securities of such Series) in trust for the benefit of the Holders of the
Securities of such Series or of the Trustee, and upon the occurrence of an Event
of Default and upon the written request of the Trustee, pay over all such sums
received by it to the Trustee, and
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Securities of such series) to make any payment
of the principal of or interest on the Securities of such Series when the same
shall be due and payable.
The Company will, on or prior to each due date of the principal of or
interest on the Securities of such Series, deposit in a timely manner with the
Paying Agent a sum sufficient to pay such principal or interest so becoming due,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of any failure to take such action.
If the Company shall act as its own Paying Agent with respect to the
Securities of any Series, it will, on or before each due date of the principal
of or interest on the Securities of such Series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such Series a sum
sufficient to pay such principal or interest so becoming due. The Company will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Company
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all
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series of Securities hereunder, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust for any such Series by the Company or any
Paying Agent hereunder, as required by this Section, such sums to be held by the
Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 10.3 and 10.4.
SECTION 3.4 Written Statement to Trustee. The Company shall deliver
to the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, a brief certificate (which need not comply with
Section 11.5) from the principal executive, financial or accounting officer of
the Company as to his or her knowledge, after due inquiry, of the Company's
compliance with all conditions and covenants under the Indenture (such
compliance to be determined without regard to any period of grace or requirement
of notice provided under the Indenture).
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.1 Company to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Company covenants and agrees that it will
furnish or cause to be furnished to the Trustee a list in such form as the
Trustee may reasonably require of the names and addresses of the Holders of the
Securities of each Series:
(a) semiannually and not more than 15 days after each record date for
the payment of interest on such Securities, as hereinabove specified, as of
such record date, and
(b) at such other times as the Trustee may reasonably request in
writing, within 30 days after receipt by the Company of any such request,
such list to be as of a date not more than 15 days prior to the time such
information is furnished,
provided that if and so long as the Trustee shall be the Security registrar for
such Series, such list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Security-holders' Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
each Series of Securities contained in the most recent list furnished to it as
provided in Section 4.1 or maintained by the Trustee in its capacity as Security
registrar
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for such Series, if so acting. The Trustee may destroy any list furnished to it
as provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities of any Series
(hereinafter referred to as "applicants") apply in writing to the Trustee and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security for a period of at least six months preceding the date of such
application, and such application states that the applicants desire to
communicate with other Holders of Securities of a particular Series (in which
case the applicants must all hold Securities of such Series) or with Holders of
all Securities with respect to their rights under this Indenture or under such
Securities and such application is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at its
election, either
(i) afford to such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of subsection
(a) of this Section 4.2, or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such Series or all Securities, as the case may be,
whose names and addresses appear in the information preserved at the time by
the Trustee, in accordance with the provisions of subsection (a) of this
Section, and as to the approximate cost of mailing to such Securityholders
the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford to such applicants access to
such information, the Trustee shall, upon the written request of such
applicants, mail to each Securityholder of such Series or all Securities, as the
case may be, whose name and address appear in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section, a copy of the form of proxy or other communication which is specified
in such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission together with
a copy of the material to be mailed, a written statement to the effect that, in
the opinion of the Trustee, such mailing would be contrary to the best interests
of the Holders of Securities of such Series or all Securities, as the case may
be, or could be in violation of applicable law. Such written statement shall
specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of
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such objections or if, after the entry of such order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met, and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of the Company or the Trustee shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders of Securities in accordance with the provisions of subsection (b)
of this Section, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Company. The Company covenants:
(a) to 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, as amended, or if the Company is not
required to file information, documents, or reports pursuant to either of
such Sections, then to file with the Trustee and 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, as amended, or in respect of a security listed and
registered on a national securities exchange as may be prescribed from time
to time in such rules and regulations;
(b) to file with the Trustee and the 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 provided for in this Indenture
as may be required from time to time by such rules and regulations; and
(c) to transmit by mail to the Holders of Securities in the manner and
to the extent required by Sections 6.6 and
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11.4, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents, and reports required to be filed by
the Company pursuant to subsections (a) and (b) of this Section as may be
required to be transmitted to such Holders by rules and regulations
prescribed from time to time by the Commission.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity;
Waiver of Default. "Event of Default" with respect to Securities of any Series
wherever used herein, means any one of the following events which shall have
occurred and be continuing (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless it is either
inapplicable to a particular Series or it is specifically deleted or modified in
or pursuant to the supplemental indenture or resolution of the Board of
Directors establishing such Series of Securities or in the form of Security for
such Series:
(a) default in the payment of any installment of interest upon any of
the Securities of such Series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of any
of the Securities of such Series as and when the same shall become due and
payable, either at maturity, upon any redemption, by declaration or
otherwise; or
(c) default in the performance, or breach of any covenant or warranty
of the Company contained in the Securities of such Series or in this
Indenture (other than a covenant or warranty a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or
which has expressly been included in this Indenture solely for the benefit
of a Series of Securities other than that Series), and continuance of such
default or breach for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that Series, a written notice specifying
such default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
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(d) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(e) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or
order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy
or insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of
the Company or of any substantial part of its property, or the making by it
of an assignment for the benefit of creditors; or
(f) any other Event of Default provided with respect to Securities of
such Series in the supplemental indenture or resolution of the Board of
Directors establishing such Series.
If an Event of Default occurs and is continuing with respect to the Securities
of any Series, then and in each and every such case, unless the principal of all
Securities of such Series shall have already become due and payable, either the
Trustee for such Series or the Holders of not less than 25% in aggregate
principal amount at maturity of the Securities of such Series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
such Holders), may declare the principal of all the Securities of such Series to
be due and payable immediately, and upon any such declaration the same shall
become and shall be immediately due and payable. This provision, however, is
subject to the condition that if at any time after the principal of the
Securities of such Series shall have been so declared due and
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payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest, if any, upon all the Securities of such Series and the
principal of any and all Securities of such Series which shall have become due
otherwise than by such acceleration (with interest upon such principal and, to
the extent that payment of such interest is enforceable under applicable law,
upon overdue installments of interest, at the rate borne by the Securities of
such Series to the date of such payment or deposit) and in Dollars such amount
as shall be sufficient to cover reasonable compensation to the Trustee, its
agents, attorneys and counsel and all other expenses and liabilities incurred,
and all advances made, by the Trustee, its agents, attorneys and counsel and any
and all defaults under this Indenture, other than the nonpayment of the
principal of Securities of such Series which shall have become due by such
acceleration, shall have been remedied, then and in every such case the Holders
of a majority in aggregate principal amount at maturity of the Securities of
such Series then Outstanding, by written notice to the Company and to the
Trustee for the Securities of such Series, may waive all defaults and rescind
and annul such declaration and its consequences; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
SECTION 5.2 Collection of Indebtedness By Trustee; Trustee May Prove
Debt. The Company covenants that (a) in case default shall be made in the
payment of any installment of interest on any of the Securities of any Series
when such interest shall have become due and payable, and such default shall
have continued for a period of 30 days, or (b) in case default shall be made in
the payment of all or any part of the principal of any of the Securities of any
Series when the same shall have become due and payable, whether upon maturity of
the Securities of such Series or upon any redemption or by declaration or
otherwise, then upon demand of the Trustee for the Securities of such Series,
the Company will pay to the Trustee for the Securities of such Series for the
benefit of the Holders of the Securities of such Series the whole amount that
then shall have become due and payable on all Securities of such Series for
principal of or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest specified in the Securities of
such Series); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including reasonable
compensation to, and all expenses and liabilities incurred and all advances made
by, the Trustee and each predecessor Trustee and their respective agents,
attorneys and counsel.
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Until such demand is made by the Trustee, the Company may pay the
principal of and interest on the Securities of any Series to the persons
entitled thereto, whether or not the principal of and interest on the Securities
of such Series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee for the Securities of such series, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceedings to judgment or
final decree, and may enforce any such judgment or final decree against the
Company or other obligor upon such Securities and collect in the manner provided
by law out of the property of the Company or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or its property or such other obligor, or in
case of any other comparable judicial proceedings relative to the Company or
other obligor under the Securities of any Series, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of any Securities shall then be due and payable as therein
expressed (or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of this Section,
shall be entitled and empowered, by intervention in such proceedings or
otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Securities of any
Series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim
for reasonable compensation to, and all expenses and liabilities incurred
and all advances made by, the Trustee and each predecessor Trustee, and
their respective agents, attorneys and counsel) and of the Securityholders
allowed in any judicial proceedings relative to the Company or other obligor
upon all Securities of any Series, or to the creditors or property of the
Company or such other obligor, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with
respect to the claims of the Securityholders and of the Trustee on their
behalf; and any trustee, receiver, or liquidator, custodian or other similar
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official is hereby authorized by each of the Holders to make payments to the
Trustee for the Securities of such Series, and, in the event that such
Trustee shall consent to the making of payments directly to the
Securityholders, to pay to such Trustee such amounts as shall be sufficient
to cover reasonable compensation to, and all expenses and liabilities
incurred and all advances made by, such Trustee, each predecessor Trustee
and their respective agents, attorneys and counsel and all other amounts due
to such Trustee or any predecessor Trustee pursuant to Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Securities of any Series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities, may be enforced by the Trustee for the Securities
of such Series without the possession of any of the Securities of such Series or
the production thereof at any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment, subject
to the payment of the expenses, disbursements and compensation of the Trustee,
each predecessor Trustee and their respective agents and attorneys, shall be for
the ratable benefit of the Holders of the Securities in respect of which such
action was taken.
In any proceedings brought by the Trustee for the Securities of such
Series (and also any proceedings involving the interpretation of any provision
of this Indenture to which the Trustee shall be a party), the Trustee shall be
held to represent all the Holders of the Securities in respect of which such
action was taken, and it shall not be necessary to make any Holders of such
Securities parties to any such proceedings.
SECTION 5.3 Application of Proceeds. Any moneys collected by the
Trustee for the Securities of such Series pursuant to this Article in respect of
the Securities of any series shall be applied in the following order at the date
or dates fixed by such Trustee and, in case of the distribution of such moneys
on account of principal or interest, upon presentation of the several Securities
in respect of which moneys have been collected and stamping (or otherwise
noting) thereon the payment, or issuing Securities of such Series in reduced
principal amounts in exchange for the presented Securities of like Series if
only partially paid, or upon surrender thereof if fully paid:
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FIRST: To the payment of costs and expenses applicable to such Series
in respect of which moneys have been collected, including reasonable
compensation to, and all expenses and liabilities incurred and all advances
made by, the Trustee and each predecessor Trustee and their respective
agents and attorneys and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 6.7;
SECOND: To the payment of the amounts then due and unpaid to the
holders of Senior Indebtedness, to the extent required by Article Fourteen;
THIRD: To the payment of the amounts then due and unpaid for principal
of and interest on the Securities of such Series in respect of which moneys
have been collected, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference, according to the
amounts then due and payable on such Securities for principal and interest;
and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
SECTION 5.4 Restoration of Rights on Abandonment of Proceedings. In
case the Trustee for the Securities of any Series shall have proceeded to
enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case, subject to the
determination in any such proceeding, the Company and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 5.5 Limitations on Suits by Securityholders. No Holder of
any Security of any Series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee, receiver, liquidator, custodian
or other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of an Event of Default
and of the continuance thereof, as hereinbefore provided, and unless also the
Holders of not less than 25% in aggregate principal amount of the Securities of
such Series then Outstanding shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and
shall have offered to the Trustee indemnity reasonable to it, as it may require,
against the costs, expenses and liabilities to be incurred therein or thereby
and the Trustee for 60 days after its receipt of such notice,
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request and offer of indemnity shall have failed to institute any such action or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by Holders of a majority in
principal amount of the Securities of such Series then Outstanding; it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Security with every other taker and Holder of a Security and the
Trustee, that no one or more Holders of Securities of any Series shall have any
right in any manner whatever, by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other such Holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable Series.
SECTION 5.6 Unconditional Right of Securityholders to Institute
Certain Suits. Notwithstanding any provision in this Indenture and any provision
of any Security, the right of any Holder of any Security to receive payment of
the principal of and (subject to Section 2.7) interest on such Security at the
respective rates, in the respective amount on or after the respective due dates
expressed in such Security, or to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
SECTION 5.7 Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Section 2.9 and Section 5.5, no right
or remedy herein conferred upon or reserved to the Trustee or to the
Securityholders 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.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 5.5, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee or
the Securityholders.
SECTION 5.8 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of each Series affected (with each
Series treated as a separate class)
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at the time Outstanding 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 by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that the Trustee shall have the right to decline
to follow any such direction if the Trustee shall determine that the action or
proceedings so directed would involve the Trustee in personal liability or if
the Trustee in good faith shall so determine that the actions or forbearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Securities of all Series so affected not joining in
the giving of said direction, it being understood that the Trustee shall have no
duty to ascertain whether or not such actions or forebearances are unduly
prejudicial to such Holders.
SECTION 5.9 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities of such Series at the time
outstanding may on behalf of the Holders of all the Securities of such Series
waive any past default hereunder or its consequences, except a default in the
payment of the principal of or interest on any of the Securities of such Series.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred 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 5.10 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security, by
his acceptance thereof, shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any action taken,
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 and
expenses, 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 Securityholder or group of
Securityholders of any Series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such Series, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest on any Security on or after the due date expressed in
such Security.
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SECTION 5.11 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing with respect
to the Securities of any Series, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and skill
in its exercise as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default with respect
to the Securities of any Series:
(1) the Trustee need perform only those duties that are specifically
set forth in this Indenture and the Trustee shall not be liable except for
the performance of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read
into the document 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 any statements, the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, in the case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 6.1;
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(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 5.8.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 6.1.
(e) No provision of this Indenture shall require the Trustee to extend
or risk its own funds or otherwise incur any financial liability unless it
receives indemnity satisfactory to it against any loss, liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 6.2 Rights of Trustee.
(a) The Trustee may rely, and shall be protected in relying upon, on
any document believed by it to be genuine and to have been signed or presented
by the proper person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) Subject to the provisions of Section 6.1(c), the Trustee shall not
be liable for any action it takes or omits to take in good faith which it
believes to be authorized or within its rights or powers.
(d) Before the Trustee acts or refrains from acting, the Trustee may
consult with counsel of its selection 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 in accordance with such advice or Opinion of Counsel.
(e) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this
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Indenture, unless such Holders shall have offered to the Trustee indemnity
reasonable to it against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(g) Prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into the facts or matters stated in any resolution,
Officer's Certificate, or other certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in writing
so to do by the Holders of not less than a majority in aggregate principal
amount of the Notes then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Company or,
if advanced by the Trustee, shall be repaid by the Company upon demand.
(h) The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers and duties hereunder.
(i) The Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on the part
of the Company, except as otherwise set forth herein, but the Trustee may
require of the Company full information and advice as to the performance of the
covenants, conditions and agreements contained herein and shall be entitled in
connection herewith to examine the books, records and premises of the Company.
(j) The permissive rights of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful default.
(k) Except for (i) a default under Sections 5.1(a) or (b) hereof, or
(ii) any other event of which the Trustee has "actual knowledge" and which
event, with the giving of notice or
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the passage of time or both, would constitute an Event of Default under this
Indenture, the Trustee shall not be deemed to have notice of any default or
event unless specifically notified in writing of such event by the Company or
the Holders of not less than 25% in aggregate principal amount of the Notes
Outstanding; as used herein, the term "actual knowledge" means the actual fact
or statement of knowing, without any duty to make any investigation with regard
thereto.
SECTION 6.3 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, registrar or co-
registrar may do the same with like rights. However, the Trustee must comply
with Sections 6.10 and 6.11.
SECTION 6.4 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use of the proceeds
from the Securities, it shall not be responsible for any statement in the
registration statement for the Securities under the Securities Act of 1933, as
amended, or in the Indenture or the Securities (other than its certificate of
authentication).
SECTION 6.5 Notice of Defaults. If a default occurs and is
continuing with respect to any Securities of any Series and if the Trustee has
actual knowledge of such default, the Trustee shall give to each Securityholder
of such Series notice of the default within 90 days after such default occurs.
Except in the case of a default described in Section 5.1(a) or (b), the Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the
interests of Securityholders of such Series.
SECTION 6.6 Reports by Trustee to Holders. Within 60 days after each
November 1 beginning with the November 1 following the date of this Indenture,
the Trustee shall mail to each Securityholder of any Series and each other
person specified in TIA Section 313(c) a brief report dated as of such November
1 that complies with TIA Section 313(a) to the extent required thereby. The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders of
any Series shall be filed with the Commission and each securities exchange on
which the Securities of any Series are listed. The Company agrees promptly to
notify the Trustee whenever the Securities of any Series become listed on any
securities exchange and of any delisting thereof.
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SECTION 6.7 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time, and the Trustee shall be
entitled to, in Dollars such compensation as shall be agreed to in writing
between the Company and the Trustee for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except to the extent any such expense, disbursement or advance may
be attributable to its negligence or willful misconduct; and
(c) to indemnify the Trustee in Dollars for, and to hold it harmless
against, any loss, liability or expense arising out of or in connection with
the acceptance or administration of this trust or the performance of its
duties hereunder, including the costs and expenses of defending itself
against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to
the extent that any such loss, liability or expense may be attributable to
its negligence or willful misconduct.
As security for the performance of the obligations of the Company in
this Section 6.7, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in trust to
pay the principal of or interest, if any, on particular Securities.
"Trustee" for purpose of this Section 6.7 includes any predecessor
trustee, provided that the negligence or bad faith of any Trustee shall not be
attributable to any other Trustee.
The Company's payment obligations pursuant to this Section 6.7 shall
constitute additional indebtedness hereunder and shall survive the discharge of
this Indenture. When the Trustee incurs expenses after the occurrence of a
default specified in Sections 5.1(d) and 5.1(e), such expenses (including
reasonable fees and expenses of counsel) are intended to constitute expenses of
administration under bankruptcy law.
SECTION 6.8 Replacement of Trustee. The Trustee may resign at any
time with respect to Securities of one or more Series by so notifying the
Company; provided, however, no such resignation shall be effective until a
successor Trustee has accepted its
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appointment pursuant to this Section 6.8. The Holders of a majority in
aggregate principal amount of the Outstanding Securities of any Series may
remove the Trustee with respect to such Series at the time outstanding by so
notifying the Trustee and the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of one or more
Series, the Company shall promptly appoint, by resolution of its Board of
Directors, a successor Trustee with respect to the Securities of such Series.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture with respect to the Securities of such Series. The
successor Trustee shall mail a notice of its succession to Securityholders so
affected. The retiring Trustee shall promptly transfer all property held by it
as Trustee to the successor Trustee, subject to the lien provided for in Section
6.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 6.9 Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 6.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Section
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310(a)(1). The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. Neither the Company nor any person directly or indirectly
controlling, controlled by or under common control with the Company shall serve
as Trustee hereunder. The Trustee shall comply with TIA Section 310(b).
SECTION 6.11 Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Securityholders of any or all
Series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such specified percentage of
Securityholders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee. Proof of execution
of any instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Sections 6.1 and 6.2)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
(b) The ownership of Securities shall be proved by the Security
register.
SECTION 7.2 Proof of Execution of Instruments. Subject to Sections
6.1 and 6.2, the execution of any instrument by a Securityholder or his agent or
proxy may be proved in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
SECTION 7.3 Holders to Be Treated as Owners. The Company, the
Trustee and any agent of the Company or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security register
for such Series as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on
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account of the principal of and interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any agent of the Company
or the Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, or upon his order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 7.4 Securities Owned by Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the
Company or any other obligor on the Securities with respect to which such
determination is being made or by any person directly or indirectly controlling
or controlled by or under direct or indirect common control with the Company or
any other obligor on the Securities with respect to which such determination is
being made shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, consent or
waiver only Securities which the Trustee knows are 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
person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any other obligor on the Securities.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all Series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon any such Security. Any action taken by the Holders of the
percentage in aggregate principal amount of the Securities of any or all Series,
as the case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon
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the Company, the Trustee and the Holders of all the Securities affected by such
action.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of
Securityholders. The Company, when authorized by a resolution of its Board of
Directors, and the Trustee for the Securities of any and all Series may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof), in form satisfactory to such
Trustee, for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more Series any property or assets;
(b) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to
Article Nine;
(c) to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
Securities of any or all Series and, if such additional covenants are to be
for the benefit of less than all the Series of Securities, stating that such
covenants are being added solely for the benefit of such Series;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture; or to make such other provisions in regard to
matters or questions arising under this Indenture or under any supplemental
indenture as the Board of Directors may deem necessary or desirable and
which shall not materially and adversely affect the interests of the Holders
of the Securities;
(e) to establish the form or terms of Securities of any Series as
permitted by Sections 2.1 and 2.3; or
(f) 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
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hereunder by more than the one Trustee, pursuant to the requirements of
Section 6.8.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Securityholders.
With the consent (evidenced as provided in Article Seven) of the Holders of not
less than a majority in aggregate principal amount of the Securities at the time
Outstanding of each Series affected by such supplemental indenture (voting as
one class), the Company, when authorized by a resolution of its Board of
Directors, and the Trustee for such Series of Securities may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto
(which shall conform to the provisions of the Trust Indenture Act of 1939 as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of the Securities of each such Series; provided, however,
that no such supplemental indenture shall (a) extend the final maturity of any
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of interest thereon, or reduce any
amount payable on redemption thereof, or impair or affect the right of any
Securityholder to institute suit for payment thereof or, if the Securities
provide therefor, any right of repayment at the option of the Securityholder
without the consent of the Holder of each Security so affected, or (b) reduce
the aforesaid percentage of Securities of any Series, the consent of the Holders
of which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors certified by the secretary or an assistant secretary
of the Company authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee for such Series of Securities of evidence of
the consent of securityholders as aforesaid and other documents, if any,
required by Section 7.1, the Trustee for such Series of Securities shall
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join with the Company in the execution of such supplemental indenture unless
such supplemental indenture affects such Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case such Trustee may in
its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Company
shall give notice in the manner and to the extent provided in Section 11.4 to
the Holders of Securities of each Series affected thereby at their addresses as
they shall appear on the Security register of the Company, setting forth in
general terms the substance of such supplemental indenture. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the Holders of Securities
of each Series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject
to the provisions of Sections 6.1 and 6.2, shall receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any Series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear, upon the direction of the Company, a notation in form
satisfactory to the Trustee for the Securities of such Series as to any matter
provided for by such supplemental indenture. If the Company or the Trustee
shall so determine, new Securities of any Series so modified as to conform, in
the opinion of the Trustee and the Board of Directors, to any modification of
this Indenture contained in any such
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supplemental indenture may be prepared by the Company, authenticated by the
Trustee and delivered in exchange for the Securities of such Series then
outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Company May Consolidate, etc. on Certain Terms. The
Company may consolidate with, or sell, convey or lease all or substantially all
of its assets to, or merge with or into, any other corporation, provided that in
any such case, (i) either the Company shall be the continuing corporation, or
the successor corporation shall be organized and validly existing under the laws
of the United States of America or any State thereof or the District of Columbia
and shall expressly assume the due and punctual payment of the principal of and
interest on all the securities according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed or observed by the Company by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by
such corporation, and (ii) the Company or such successor corporation, as the
case may be, shall not, immediately after such merger or consolidation, or such
sale, conveyance or lease, be in material default in the performance or
observance of any such covenant or condition.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, lease or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein. Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Company prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall make available for delivery any Securities
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, lease or conveyance
such changes in phraseology and form (but not in
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substance) may be made in the Securities thereafter to be issued as may be
appropriate.
In the event of any such sale or conveyance the Company (or any
successor corporation which shall theretofore have become such in the manner
described in this Article) shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be liquidated and
dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Sections 6.1 and 6.2, shall receive an Opinion of Counsel,
prepared in accordance with Section 11.5, as conclusive evidence that any such
consolidation, merger, sale, lease or conveyance, and any such assumption, and
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE: UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture.
(A) If at any time (a) the Company shall have paid or caused to be
paid the principal of and interest on all the Securities of any Series
Outstanding hereunder (other than Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.9) as and
when the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all Securities of any Series
theretofore authenticated (other than any Securities of such Series which have
been destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.9) or (c) (i) all the Securities of such Series not
theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and (ii) the Company shall
have irrevocably deposited or caused to be deposited with the Trustee as trust
funds the entire amount (other than moneys repaid by the Trustee or any Paying
Agent to the Company in accordance with Section 10.4) or Government Obligations
maturing as to principal and interest in such amounts and at such times as will
ensure the availability of cash sufficient to pay at maturity or upon redemption
all Securities of such Series (other than any Securities of such Series which
shall have been destroyed, lost or stolen and which shall have been replaced or
paid as provided in Section 2.9) not theretofore delivered to the Trustee for
cancellation, including principal and interest due or to become due to such date
of maturity as the case may be, and if, in any such case, the Company shall also
pay or cause to be paid all other sums payable hereunder by the Company with
respect to Securities of
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such Series, then this Indenture shall cease to be of further effect with
respect to Securities of such Series (except as to (i) rights of registration of
transfer and exchange, and the Company's right of optional redemption (provided
the Company provides sufficient funds to effect such optional redemption), (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii)
rights of Holders to receive payments of principal thereof and interest thereon
upon the original stated due dates therefor (but not upon acceleration) and
remaining rights of the Holders to receive mandatory sinking fund payments, if
any, (iv) the rights, obligations and immunities of the Trustee hereunder and
(v) the rights of the Securityholders of such Series as beneficiaries hereof
with respect to the property so deposited with the Trustee payable to all or any
of them), and, subject to Section 10.5, the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments acknowledging
such satisfaction of and discharging this Indenture with respect to such Series;
provided, that the rights of Holders of the Securities to receive amounts in
respect of principal of and interest on the Securities held by them shall not be
delayed longer than required by then-applicable mandatory rules or policies of
any securities exchange upon which the Securities are listed. The Company
agrees to reimburse the Trustee for any costs or expenses thereafter reasonably
and properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture and the Securities of such Series.
(B) (i) In addition to the provisions of Section 10.1(A), the
Company may, at its option by or pursuant to, or otherwise in a manner or by
such Persons as may be authorized pursuant to, one or more resolutions duly
adopted by the Board of Directors, at any time with respect to the Securities of
any Series, elect to have defeasance under subsection (ii) of this Section
10.1(B) be applied to the Outstanding Securities of such Series provided that
provision therefor is made for such application pursuant to Section 2.3 and the
applicable conditions thereto as set forth in this Section 10.1(B) have been
satisfied.
(ii) Upon the Company's exercise of the option referenced in Section
10.1(B)(i) applicable to this subsection, the Company may terminate its
obligations under the Outstanding Securities of any Series and this Indenture
with respect to such Series on the date the conditions set forth below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by the Outstanding Securities of such Series and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense and request of the Company, shall execute proper instruments
acknowledging the same),
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except for the following: (1) the rights of Holders of Outstanding Securities of
such Series to receive payments in respect of the principal of and interest on
such Securities when such payments are due, (2) the Company's obligations with
respect to such Securities under Sections 2.8, 2.9, 3.2, 6.7, 10.4 and 10.5, (3)
the rights, powers, trusts, duties and immunities of the Trustee hereunder, and
(4) this Section 10.1(B).
(iii) The following shall be the conditions to the application of
Section 10.1(B) (ii) to the Outstanding Securities of such Series:
(1) The Company shall have irrevocably deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 6.10 who shall agree to comply with the provisions of this
Section 10.1(B) applicable to it) under the terms of an irrevocable trust
agreement, as trust funds in trust solely for the purpose of making the
following payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of Securities of such Series, (I) cash
in the currency or currency unit required, or (II) Government Obligations
maturing as to principal and interest in such amounts (payable in the
currency in which the Securities of such Series are payable) and at such
times as are sufficient, to pay the principal of and interest on the
Outstanding Securities of such Series to maturity or redemption, as the case
may be, or (III) a combination thereof, in each case 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, (x) the principal of and each
installment of principal of and interest, if any, on the Outstanding
Securities of such Series on the stated maturity of such principal or
installment of principal or interest, if any, and (y) any mandatory sinking
fund payments or analogous payments applicable to the Outstanding Securities
of such Series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities. Such
irrevocable trust agreement shall include, among other things, (a) provision
for the payments referenced in clauses (x) and (y) of the immediately
preceding sentence, (b) the payment of the reasonable expenses of the
Trustee incurred or to be incurred in connection with carrying out such
trust provisions, (c) rights of registration, transfer, substitution and
exchange of Securities of such Series in accordance with the terms stated in
this Indenture and (d) continuation of the
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rights and obligations and immunities of the Trustee as against the Holders
of Securities of such Series as stated in this Indenture.
(2) No Event of Default or event which with notice or lapse of time or
both would constitute an Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit or, insofar as Sections 5.1(d) and 5.1(e) are concerned, at any time
during the period ending on the 91st day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(3) Such 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.
(4) The Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Securityholders of such Series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
deposit and discharge and will be subject to Federal income tax on the same
amounts and in the same manner and at the same time as would have been the
case if such deposit and defeasance had not occurred.
(5) The Company shall have delivered to the Trustee an Officers'
Certificate and Opinion of Counsel, each stating that all conditions
precedent provided for herein relating to the deposit and defeasance
contemplated by this Section 10.1(B) have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys deposited with the Trustee
pursuant to Section 10.1 shall be held in trust and applied by it to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), to the Holders of the particular Securities of
such Series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to Securities
of any Series, all moneys then held by any Paying Agent (other than the Company)
under the provisions of this Indenture with respect to such Series of Securities
shall, upon demand of the Company, be paid to the Trustee and thereupon
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such Paying Agent shall be released from all further liability with respect to
such moneys.
SECTION 10.4 Return of Unclaimed Moneys Held by Trustee and Paying
Agent. Any moneys deposited with or paid to the Trustee or any Paying Agent
(including the Company acting as its own Paying Agent) for the payment of the
principal of or interest on any Security of any Series and not applied but
remaining unclaimed for two years after the date upon which such principal or
interest shall have become due and payable, shall, upon the written request of
the Company, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, promptly be repaid to the
Company by the Trustee for such Series or such Paying Agent (except that with
respect to any amounts then held by the Company in trust as its own Paying Agent
no such request need be given and at such time the Company shall be discharged
from its duty to hold such moneys in trust as Paying Agent), and the Holder of
the Security of such Series shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Company for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or any Paying Agent with
respect to such moneys shall thereupon cease. Anything in this Article Ten to
the contrary notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon the written request of the Company any money or
Government Obligations held by it as provided in Section 10.1(B)(iii) 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 such defeasance or covenant defeasance, as the case may be, in accordance
with the provisions of this Indenture.
SECTION 10.5 Reinstatement of Company's Obligations. If the Trustee
is unable to apply any funds or Government Obligations in accordance with
Section 10.1 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
indenture and the Securities of any Series for which such application is
prohibited shall be revived and reinstated as if no deposit had occurred
pursuant to Section 10.1 until such time as the Trustee is permitted to apply
all such funds or Government Obligations in accordance with Section 10.1;
provided, however, that if the Company has made any payment of interest on or
principal of any of such Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the
Securityholders of such Securities to receive such payment from the funds or
Government Obligations held by the Trustee.
ARTICLE ELEVEN
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MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, in any Security,
or because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder,
officer or director, as such, of the Company or of any successor, either
directly or through the Company or any successor, under any rule of law, statute
or constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities by the Holders thereof
and as part of the consideration for the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any Person, firm or
corporation, other than the parties hereto, any Paying Agent and their
successors hereunder and the Holders of the Securities any legal or equitable
right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit
of the parties hereto and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by or on behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 11.4 Notices and Demands on Company, Trustee and
Securityholders. Any notice or demand which by any provision of this Indenture
is required or permitted to be given or served by the Trustee or by the Holders
of Securities to or on the Company may be given or served by being deposited
postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Company is filed by the Company
with the Trustee) to FMC Corporation, 200 East Randolph Drive, Chicago, Illinois
60601, Attention: Corporate Secretary. Any notice, direction, request or demand
by the Company or any Securityholder to or upon the Trustee shall be deemed to
have been sufficiently given or made, for all purposes, if given or made at the
Corporate Trust Office.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed by first-class mail, postage prepaid to such Holders as
their names and addresses appear in the Security register within the time
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prescribed. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders, and any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Company and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
reasonably acceptable to the Trustee shall be deemed to be a sufficient giving
of such notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, 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 demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the person
making such certificate or opinion has read such covenant or condition, (b) 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, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of or representations by counsel,
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unless such officer knows that the certificate or opinion or representations
with respect to the matters upon which his certificate, statement or opinion may
be based as aforesaid are erroneous, or in the exercise of reasonable care
should know that the same are erroneous. Any certificate, statement or opinion
of counsel may be based, insofar as it relates to factual matters or information
with respect to which is in the possession of the Company, upon the certificate,
statement or opinion of or representations by an officer or officers of the
Company, unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the exercise
of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. Unless
otherwise specified in a Security, if the date of maturity of interest on or
principal of the Securities of any Series or the date fixed for redemption or
repayment of any such Security shall not be a Business Day, then payment of
interest or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date of
maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with another provision included in this
Indenture which is required by the Trust Indenture Act of 1939, as amended, such
required provision shall control. If any provision of this Indenture modifies
or excludes any provision of the Trust Indenture Act of 1939, as amended, that
may be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 11.8 Illinois Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the internal laws of the State
of Illinois (without regard to conflicts of laws provisions thereof), and for
all purposes shall be construed in accordance with the laws of such State.
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SECTION 11.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings; Gender. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof. The use of the masculine, feminine or neuter
gender herein shall not limit in any way the applicability of any term or
provision hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any Series which are redeemable
before their maturity or to any sinking fund for the retirement of Securities of
a Series except as otherwise specified as contemplated by Section 2.3 for
Securities of such Series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any Series required to be redeemed or
to be redeemed as a whole or in part at the option of the Company shall be given
by giving notice of such redemption as provided in Section 11.4, at least 15
days and not more than forty-five days prior to the date fixed for redemption to
such Holders of Securities of such Series. Failure to give notice by mail, or
any defect in the notice to the Holder of any Security of a Series designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such Series.
The notice of redemption to each such Holder shall specify the date
fixed for redemption, the "CUSIP" number or numbers for such Securities, the
redemption price, the Place or Places of Payment, that payment will be made upon
presentation and surrender of such Securities, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that
interest accrued to the date fixed for redemption will be paid as specified in
such notice, that on and after said date interest thereon or on the portions
thereof to be redeemed will cease to accrue and, if applicable, that a Holder of
Securities who desires to convert Securities for redemption must satisfy the
requirements for conversion contained in such Securities, the then existing
conversion price or rate and the date and time when the option to convert shall
expire. If less than all of the Securities of any Series are to be redeemed,
the notice of redemption shall specify the numbers of the Securities of such
Series to be redeemed. In case any Security of a Series is to be redeemed in
part, the notice of redemption shall state the portion of the
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principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities of such Series in principal amount equal to the unredeemed Portion
thereof will be issued.
The notice of redemption of Securities of any Series to be redeemed at
the option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. If such
notice is to be given by the Trustee, the Company shall provide notice of such
redemption to the Trustee at least forty-five days prior to the date fixed for
redemption (unless a shorter notice shall be satisfactory to the Trustee). If
such notice is given by the Company, the Company shall provide a copy of such
notice given to the Holders of such redemption to the Trustee at least 3
Business Days prior to the date such notice is given to such Holders, but in any
event at least 15 days prior to the date fixed for redemption (unless a shorter
notice shall be satisfactory to the Trustee).
Unless otherwise specified pursuant to Section 2.3, not later than the
redemption date specified in the notice of redemption given as provided in this
Section, the Company will have on 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 3.4) in funds available on
such date an amount of money sufficient to redeem on the redemption date all the
Securities of such Series so called for redemption at the appropriate redemption
price, together with accrued interest to the date fixed for redemption. If less
than all the Outstanding Securities of a Series are to be redeemed, the Company
will deliver to the Trustee at least forty-five days prior to the date fixed for
redemption an Officers' Certificate stating the aggregate principal amount of
Securities to be redeemed.
If less than all the Securities of a Series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such Series to be redeemed in whole or in part and the Trustee
shall promptly notify the Company in writing of the Securities of such Series
selected for redemption and, in the case of any Securities of such Series
selected for partial redemption, the principal amount thereof to be redeemed.
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 forty-five days prior to
the relevant redemption date. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such Series or
any multiple thereof. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of
any Series shall relate, in the case of any Security redeemed or to be redeemed
only
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in part, to the portion of the principal amount of such Security which has been
or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after said
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and, except as provided in Sections 6.1 and 10.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any benefit
or security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation
and surrender of such Securities at a Place of Payment specified in said notice,
said Securities or the specified portions thereof shall be paid and redeemed by
the Company at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that if for any Securities
the date fixed for redemption is a regular interest payment date, payment of
interest becoming due on such date shall be payable to the Holders of such
Securities registered as such on the relevant record date subject to the terms
and provisions of Section 2.7 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest borne by the Security.
Upon presentation of any Security redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to or on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities, of authorized denominations, in principal amount equal
to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an authorized officer of the Company and
delivered to the Trustee at least 30 days prior to the last date on which notice
of redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
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controlled by or under direct or indirect common control with the Company.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of Securities of
any Series is herein referred to as a "mandatory sinking fund payment," and any
payment in excess of such minimum amount provided for by the terms of Securities
of any Series is herein referred to as an "optional sinking fund payment." The
date on which a sinking fund payment is to be made is herein referred to as the
"sinking fund payment date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Series of Securities in cash, the Company may at its
option (a) deliver to the Trustee securities of such Series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Company or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise acquired
(except as aforesaid) by the Company and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or (c)
receive credit for Securities of such Series (not previously so credited)
redeemed by the Company through any optional redemption provision contained in
the terms of such Series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the forty-fifth day next preceding each sinking fund
payment date for any Series of Securities, the Company will deliver to the
Trustee a written statement (which need not contain the statements required by
Section 11.5) signed by an authorized officer of the Company (a) specifying the
portion of the mandatory sinking fund payment to be satisfied by payment of cash
(except as otherwise specified pursuant to Section 2.3 for the Securities of
such Series), and the portion to be satisfied by delivery or credit of
Securities of such Series, (b) stating that none of the Securities of such
Series for which credit is sought has theretofore been so credited, (c) stating
that no defaults in the payment of interest or Events of Default with respect to
such Series have occurred (which have not been waived or cured) and are
continuing, (d) stating whether or not the Company intends to exercise its right
to make an optional sinking fund payment with respect to such Series and, if so,
specifying the amount of such optional sinking fund payment which the Company
intends to pay on or before the next succeeding sinking fund payment date and
(e) specifying such sinking fund payment date. Any Securities of such Series to
be credited and required to be delivered on the Trustee in order for the Company
to be entitled to credit therefor as aforesaid which have not theretofore been
delivered to the Trustee shall be delivered for cancellation pursuant to Section
2.10 to the
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Trustee with such written statement. Such written statement shall be
irrevocable and upon its receipt by the Trustee the Company shall become
unconditionally obligated to make all the cash payments or payments therein
referred to, if any, on or before the next succeeding sinking fund payment date.
Failure of the Company, on or before any such forty-fifth day, to deliver such
written statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such Series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
Series in respect thereof and (ii) that the Company will make no optional
sinking fund payment with respect to such Series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $100,000 (or a lesser sum if the Company shall so request) with respect
to the Securities of any particular Series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of
such Series at the sinking fund redemption price together with accrued interest
to the date fixed for redemption. If such amount shall be $100,000 or less and
the Company makes no such request then it shall be carried over until a sum in
excess of $100,000 is available. The Trustee shall select, in the manner
provided in Section 12.2 and giving effect to any exclusions required pursuant
to Section 12.4, for redemption on such sinking fund payment date a sufficient
principal amount of Securities of such Series to absorb said cash, as nearly as
may be possible, and shall (if requested in writing by the Company) inform the
Company of the serial numbers of the Securities of such Series (or portions
thereof) so selected. The Trustee, in the name and at the expense of the
Company (or the Company, if it shall so notify the Trustee in writing), shall
cause notice of redemption of the Securities of such Series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such Series at the option
of the Company. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such Series shall be added to the
next cash sinking fund payment for such Series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all
sinking fund moneys held on the stated maturity date of the Securities of any
particular series (or earlier, if such maturity is accelerated), which are not
held for the payment or redemption of particular Securities of such Series shall
be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest on, the Securities of
such Series at maturity.
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Unless otherwise specified pursuant to Section 2.3, not later than the
sinking fund payment date, the Company shall have paid to the Trustee in cash or
shall otherwise provide in funds available on such date for the payment of all
principal and interest accrued to the date fixed for redemption on Securities to
be redeemed on such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a Series with sinking fund moneys or mail or publish any notice of redemption of
Securities for such Series by operation of the sinking fund during the
continuance of a default in payment of interest on such Securities or of any
Event of Default except that, where the mailing or publication of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Company a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such Series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Five and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.9 or the default cured on or before the sixtieth
day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
SECTION 12.6 Repayment at the Option of the Holders. Securities of
any Series which are repayable at the option of the Holders thereof before their
stated maturity shall be repaid in accordance with the terms of the Securities
of such Series.
The repayment of any principal amount of Securities pursuant to such
option of the Holder to require repayment of Securities before their stated
maturity, for purposes of Section 10.1, shall not operate as a payment,
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the Company, at its option, shall deliver or surrender the same
to the Trustee with a directive that such Securities be cancelled.
SECTION 12.7 Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Trustee or the Paying Agent in trust for the Holders
of Securities, on or before 10:00 a.m. Chicago time on the redemption date, an
amount not less than the redemption price, together with interest, if any,
accrued to the redemption date of such Securities, in immediately available
funds. Notwithstanding anything to the contrary contained in this Article
Twelve, the
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obligation of the Company to pay the redemption price of such Securities,
including all accrued interest, if any, 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, any Securities not duly surrendered for conversion by
the Holders thereof may, at the option of the Company, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such Holders and
surrendered by such purchasers for conversion, all as of immediately prior to
the close of business on the last day on which Securities of such series called
for redemption may be converted in accordance with this Indenture and the terms
of such Securities, subject to payment to the Trustee or Paying Agent of the
above-described amount. The Trustee or the Paying Agent shall hold and pay to
the Holders whose Securities are selected for redemption any such amount paid to
it in the same manner as it would pay moneys deposited with it by the Company
for the redemption of Securities. Without the Trustee's and the Paying Agent's
prior written consent, no arrangement between the Company and such purchasers
for the purchase and conversion of any Securities shall increase or otherwise
affect any of the powers, duties, responsibilities or obligations of the Trustee
and the Paying Agent as set forth in this Indenture, and the Company agrees to
indemnify the Trustee and the Paying Agent from, and hold them harmless against,
any loss, liability or expense arising out of or in connection with any such
arrangement for the purchase and conversion of any Securities between the
Company and such purchasers, including the costs and expenses incurred by the
Trustee and the Paying Agent (including the fees and expenses of their agents
and counsel) in the defense of any claim or liability arising out of or in
connection with the exercise or performance of any of their powers, duties,
responsibilities or obligations under this Indenture.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
SECTION 13.1 Applicability of Article. Securities of any series
which are convertible into Common Shares at the option of the Holder of such
Securities shall be convertible in accordance with their terms and (unless
otherwise specified as contemplated by Section 2.3 for the Securities of any
series) in accordance with this Article. Each reference in this Article
Thirteen to "a Security" or "the Securities" refers to the Securities of the
particular Series that is convertible into Common Shares. If more than one
Series of Securities with conversion privileges are Outstanding at any time, the
provisions of this Article Thirteen shall be applied separately to each such
series.
SECTION 13.2 Right of Holders to Convert Securities into Common
Shares. Subject to and upon compliance with the terms of
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the Securities and the provisions of Section 12.7 and this Article Thirteen, at
the option of the Holder thereof, any Security of any series of any authorized
denomination which is convertible into Common Shares, or any portion of the
principal amount thereof which is $1,000 or any integral multiple of $1,000,
may, at any time during the period specified in the Securities of such series,
or in case such Security or portion thereof shall have been called for
redemption, then in respect of such Security or portion thereof until and
including, but not after (unless the Company shall default in payment due upon
the redemption thereof) the close of business on the redemption date (except
that in the case of repayment at the option of the Holder, if specified in the
terms of the relevant Security, such right shall terminate upon the Company's
receipt of written notice of the exercise of such option), be converted into
duly authorized, validly issued, fully paid and nonassessable Common Shares, as
specified in such Security, at the conversion price or conversion rate for each
$1,000 principal amount of Securities (such initial conversion rate reflecting
an initial conversion price specified in such Security) in effect on the
conversion date, or, in case an adjustment in the conversion price has taken
place pursuant to the provisions of this Article Thirteen, then at the
applicable conversion price as so adjusted, upon surrender of the Security or
Securities, the principal amount of which is so to be converted, to the Company
at any time during usual business hours at the office or agency to be maintained
by it in accordance with the provisions of Section 3.2, accompanied by a written
notice of election to convert as provided in Section 13.3 and, if the Holder
requests that the Common Shares be registered in a name other than that of the
Holder, by a written instrument or instruments of transfer in form satisfactory
to the Company and/or the Trustee, as applicable, duly executed by the Holder
thereof or his attorney duly authorized in writing. All Securities surrendered
for conversion shall, if surrendered to the Company or any conversion agent, be
delivered to the Trustee for cancellation and cancelled by it, or shall, if
surrendered to the Trustee, be cancelled by it, as provided in Section 2.10.
The initial conversion price or conversion rate in respect of a
Series of Securities shall be as specified in the Securities of such Series. The
conversion price or conversion rate will be subject to adjustment on the terms
set forth in Section 13.5 or such other or different terms, if any, as may be
specified by Section 2.3 for Securities of such Series. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of any portion of it.
SECTION 13.3 Issuance of Common Shares on Conversions. As promptly
as practicable after the surrender, as herein provided, of any Security or
Securities for conversion into Common Shares, the Company shall deliver or cause
to be delivered at its said office or agency to or upon the written order of the
Holder of the Security or Securities so surrendered a certificate or
certificates
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representing the number of duly authorized, validly issued, fully paid and
nonassessable Common Shares into which such Security or Securities may be
converted in accordance with the terms thereof and the provisions of this
Article Thirteen. Prior to delivery of such certificate or certificates, the
Company shall require written notice at its said office or agency from the
Holder of the Security or Securities so surrendered stating that the Holder
irrevocably elects to convert such Security or Securities, or, if less than the
entire principal amount thereof is to be converted, stating the portion thereof
to be converted. Such notice shall also state the name or names (with address
and social security or other taxpayer identification number) in which said
certificate or certificates are to be issued. Such conversion shall be deemed
to have been made at the time that such Security or Securities shall have been
surrendered for conversion and such notice shall have been received by the
Company or the Trustee, the rights of the Holder of such Security or Securities
as a Holder shall cease at such time, the Person or Persons entitled to receive
the Common Shares upon conversion of such Security or Securities shall be
treated for all purposes as having become either record holder or holders of
such Common Shares at such time and such conversion shall be at the conversion
price in effect at such time. In the case of any Security of any Series which
is converted in part only, upon such conversion, the Company shall execute and,
upon the Company's request and at the Company's expense, the Trustee or an
authenticating agent shall authenticate and deliver to the Holder thereof, as
requested by such Holder, a new Security or Securities of such Series of
authorized denominations in aggregate principal amount equal to the unconverted
portion of such Security.
If the last day on which such Security may be converted is not a
Business Day in a place where the conversion agent for that Security is located,
such Security may be surrendered to that conversion agent on the next succeeding
day that is a Business Day.
The Company shall not be required to deliver certificates for Common
Shares upon conversion while its stock transfer books are closed for a meeting
of shareholders or for the payment of dividends or for any other purpose, but
certificates for Common Shares shall be delivered as soon as the stock transfer
books shall again be opened.
SECTION 13.4 No Payment or Adjustment for Interest or Dividends.
Unless otherwise specified as contemplated by Section 2.3 for Securities of such
Series, Securities surrendered for conversion into Common Shares during the
period from the close of business on any regular record date (or special record
date) next preceding any interest payment date to the opening of business on
such interest payment date (except Securities called for redemption on a
redemption date within such period) when surrendered for conversion must be
accompanied by payment (by certified or official bank check to the order of the
Company payable in clearing house
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funds at the location where the Securities are surrendered) of an amount equal
to the interest thereon which the Holder is entitled to receive on such interest
payment date. Payment of interest shall be made, on such interest payment date
or such other payment date (as set forth in Section 2.7), as the case may be, to
the Holder of the Securities as of such regular record date or special record
date, as applicable. Except where Securities surrendered for conversion must be
accompanied by payment as described above, no interest on converted Securities
will be payable by the Company on any interest payment date subsequent to the
date of conversion. No other payment or adjustment for interest or dividends is
to be made upon conversion. Notwithstanding the foregoing, upon conversion of
any Original Issue Discount Security, the fixed number of Common Shares into
which such Security is convertible delivered by the Company to the Holder
thereof shall be applied, first, to the portion attributable to the accrued
original issue discount relating to the period from the date of issuance to the
date of conversion of such Security, and, second, to the portion attributable to
the balance of the principal amount of such Security.
SECTION 13.5 Adjustment of Conversion Price. Unless otherwise
specified as contemplated by Section 2.3 for Securities of such Series, the
conversion price for Securities convertible into Common Shares shall be adjusted
from time to time as follows:
(a) In case the Company shall (x) pay a dividend or make a
distribution on Common Shares in Common Shares, (y) subdivide the
outstanding Common Shares into a greater number of shares or (z) combine
the outstanding Common Shares into a smaller number of shares, the
conversion price for the Securities of such Series shall be adjusted so
that the Holder of any such Security thereafter surrendered for conversion
shall be entitled to receive the number of Common Shares which he would
have owned or have been entitled to receive after the happening of any of
the events described above had such Security been converted immediately
prior to the record date in the case of a dividend or the effective date in
the case of subdivision or combination. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date in
the case of a dividend, except as provided in subsection (h) below, and
shall become effective immediately after the effective date in the case of
a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all
holders of Common Shares entitling them (for a period expiring within 45
days after the record date mentioned below) to subscribe for or purchase
Common Shares at a price per share less than the current market price per
share of Common Shares (as defined for purposes of this subsection (b) in
subsection (e) below), at the record date for the
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determination of stockholders entitled to receive such rights or warrants, 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 such record date by a fraction, the numerator of
which shall be the number of Common Shares outstanding on such record date plus
the number of Common Shares which the aggregate offering price of the total
number of Common Shares so offered would purchase at such current market price,
and the denominator of which shall be the number of Common Shares outstanding on
such record date plus the number of additional Common Shares receivable upon
exercise of such rights or warrants. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and shall become effective
immediately, except as provided in subsection (h) below, after such record date.
In determining whether any rights or warrants entitle the Holders of the
Securities of such Series to subscribe for or purchase Common Shares at less
than such current market price, and in determining the aggregate offering price
of such Common Shares, there shall be taken into account any consideration
received by the Company for such rights or warrants plus the exercise price
thereof, the value of such consideration or exercise price, as the case may be,
if other than cash, to be determined by the Board of Directors.
(c) In case the Company shall distribute to all holders of Common
Shares any shares of capital stock of the Company (other than Common Shares) or
evidences of its indebtedness or assets (excluding cash dividends or
distributions paid from retained earnings of the Company) or rights or warrants
to subscribe for or purchase any of its securities (excluding those rights or
warrants referred to in subsection (b) above) (any of the foregoing being herein
in this subsection (c) called the "Special Securities"), then, in each such
case, unless the Company elects to reserve such Special Securities for
distribution to the Holders of Securities of such Series upon the conversion so
that any such Holder converting such Securities will receive upon such
conversion, in addition to the Common Shares to which such Holder is entitled,
the amount and kind of Special Securities which such Holder would have received
if such Holder had, immediately prior to the record date for the distribution of
the Special Securities, converted Securities into Common Shares, the conversion
price shall be adjusted so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to such record date
by a fraction the numerator of which shall be the current market price per share
(as defined for purposes of this subsection (c) in subsection (e) below) of
Common Shares on the record date mentioned above less the then fair market value
(as determined by the Board of Directors, whose determination shall, if made in
good faith, be conclusive) of
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the portion of the Special Securities so distributed applicable to one Common
Share, and the denominator of which shall be the current market price per Common
Shares (as defined in subsection (e) below); provided, however, that in the
event the then fair market value (as so determined) of the portion of the
Special Securities so distributed applicable to one Common Share is equal to or
greater than the current market price per Common Share (as defined in subsection
(e) below) on the record date mentioned above, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of Securities
of such Series shall have the right to receive the amount and kind of Special
Securities such holder would have received had he converted such Securities
immediately prior to the record date for the distribution of the Special
Securities. Such adjustment shall become effective immediately, except as
provided in subsection (h) below, after the record date for the determination of
stockholders entitled to receive such distribution.
(d) If, pursuant to subsection (b) or (c) above, the conversion
price shall have been adjusted because the Company has declared a dividend, or
made a distribution, on the outstanding Common Shares in the form of any right
or warrant to purchase securities of the Company, or the Company has issued any
such right or warrant, then, upon the expiration of any such unexercised right
or unexercised warrant, the conversion price shall forthwith be adjusted to
equal the conversion price that would have applied had such right or warrant
never been declared, distributed or issued.
(e) For the purpose of any computation under subsection (b) above, the
current market price per Common Share on any date shall be deemed to be the
average of the reported last sales prices for the thirty consecutive Trading
Days (as defined below) commencing forty-five Trading Days before the date in
question. For the purpose of any computation under subsection (c) above, the
current market price per Common Share on any date shall be deemed to be the
average of the reported last sales prices for the ten consecutive Trading Days
before the date in question. The reported last sales price for each day (whether
for purposes of subsection (b) or subsection (c)) shall be the reported last
sales price, regular way, or, in case no sale takes place on such day, the
average of the reported closing bid and asked prices, regular way, in either
case as reported on the New York Stock Exchange Composite Tape or, if the Common
Shares are not listed or admitted to trading on the New York Stock Exchange, on
the principal national securities exchange on which the Common Shares are listed
or admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Market System of the National Association
of Securities Dealers, Inc. Automated Quotations System
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("NASDAQ") or, if the Common Shares are not quoted on such National Market
System, the average of the closing bid and asked prices on such day in the over-
the-counter market as reported by NASDAQ or, if bid and asked prices for the
Common Shares on each such day shall not have been reported through NASDAQ, the
average of the bid and asked prices for such day as furnished by any New York
Stock Exchange member firm regularly making a market in the Common Shares
selected for such purpose by the Board of Directors or a committee thereof or,
if no such quotations are available, the fair market value of the Common Shares
as determined by a New York Stock Exchange member firm regularly making a market
in the Common Shares selected for such purpose by the Board of Directors or a
committee thereof or, if no such quotations are available, the fair market value
of the Common Shares as determined by a New York Stock Exchange member firm
regularly making a market in the Common Shares selected for such purpose by the
Board of Directors or a committee thereof. As used herein, the term "Trading
Day" with respect to the Common Shares means (x) if the Common Shares are listed
or admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which the New York Stock Exchange or such other
national securities exchange is open for business or (y) if the Common Shares
are quoted on the National Market System of the NASDAQ, a day on which trades
may be made on such National Market System or (z) otherwise, any day other than
a Saturday or Sunday or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to close.
(f) 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 (f) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment; and, provided, further, that
adjustment shall be required and made in accordance with the provisions of this
Article Thirteen (other than this subsection (f)) not later than such time as
may be required in order to preserve the tax free nature of a distribution to
the holders of Common Shares. All calculations under this Article Thirteen shall
be made to the nearest cent or to the nearest 1/100 of a share, as the case may
be, with one-half cent and 1/200 of a share, respectively, being rounded upward.
Anything in this Section 13.5 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 13.5, as it in its discretion shall determine to
be advisable in order that any stock dividend, subdivision of shares,
distribution of rights or warrants to purchase stock or securities, or
distribution of other assets (other than
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cash dividends) hereafter made by the Company to its shareholders shall not be
taxable.
(g) Whenever the conversion price is adjusted, as herein provided, the
Company shall promptly file with the Trustee, at the Corporate Trust Office of
the Trustee, and with the office or agency maintained by the Company for the
conversion of Securities of such Series pursuant to Section 3.2, an Officers'
Certificate, setting forth the conversion price after such adjustment and
setting forth a brief statement of the facts requiring such adjustment, which
certificate shall be conclusive evidence of the correctness of such adjustment.
Neither the Trustee nor any conversion agent shall be under any duty or
responsibility with respect to any such certificate or any facts or computations
set forth therein, except to exhibit said certificate from time to time to any
Holder of a Security of such Series desiring to inspect the same. The Company
shall promptly cause a notice setting forth the adjusted conversion price to be
mailed to the Holders of Securities of such Series, as their names and addresses
appear upon the Security register of the Company.
(h) In any case in which this Section 13.5 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 (y) issuing to the Holder of any
Security of such Series converted after such record date and before the
occurrence of such event the additional Common Shares issuable upon such
conversion by reason of the adjustment required by such event over and above the
Common Shares issuable upon such conversion before giving effect to such
adjustment and (z) paying to such holder any amount in cash in lieu of any
fractional Common Shares pursuant to Section 13.6 hereof.
SECTION 13.6 No Fractional Shares to be Issued. No fractional Common Shares
shall be issued upon any conversion of Securities. If more than one Security of
any Series shall be surrendered for conversion at one time by the same Holder,
the number of full shares which shall be issuable upon conversion thereof shall
be computed on the basis of the aggregate principal amount of the Securities of
such Series (or specified portions thereof to the extent permitted hereby) so
surrendered. Instead of a fraction of a share of Common Stock which would
otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment (computed
to the nearest cent, with one-half cent being rounded upward) in respect of such
fraction of a share in an amount equal to the same fractional interest of the
reported last sales price (as defined in Section 13.5(e)) of the Common Shares
on the Trading Day (as defined in Section 13.5(e)) next preceding the day of
conversion.
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SECTION 13.7 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Conveyance. In case of any consolidation of the Company with,
or merger of the Company into, any other corporation (other than a consolidation
or merger in which the Company is the continuing corporation), or in the case of
any sale or transfer of all or substantially all of the assets of the Company,
the corporation formed by such consolidation or the corporation into which the
Company shall have been merged or the corporation which shall have acquired such
assets, as the case may be, shall execute and deliver to the Trustee, a
supplemental indenture, in accordance with the provisions of Articles Eight and
Nine as they relate to supplemental indentures, providing that the Holder of
each Security then Outstanding of a Series which was convertible into Common
Shares shall have the right thereafter to convert such Security into the kind
and amount of shares of stock and other securities and property, including cash,
receivable upon such consolidation, merger, sale or transfer by a holder of the
number of Common Shares of the Company into which such Securities might have
been converted immediately prior to such consolidation, merger, sale or
transfer. Such supplemental indenture shall conform to the provisions of the
Trust Indenture Act of 1939 as then in effect and shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Thirteen. Neither the Trustee nor any conversion
agent shall have any liability or responsibility for determining the correctness
of any provision contained in any such supplemental indenture relating either to
the kind or amount of shares of stock or other securities or property receivable
by Holders of the Securities upon the conversion of their Securities after any
such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect thereto and, subject to the provisions of Section 313 of the Trust
Indenture Act of 1939, may accept as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon, an Officers'
Certificate with respect thereto and an Opinion of Counsel with respect to legal
matters related thereto. If in the case of any such consolidation, merger, sale
or transfer, the stock or other securities and property receivable by a Holder
of the Securities includes stock or other securities and property of a
corporation other than the successor or purchasing corporation, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Securities as the Board of Directors shall reasonably consider necessary.
The above provisions of this Section 13.7 shall similarly apply to successive
consolidations, mergers, sales or transfers.
SECTION 13.8 Notice to Holders of the Securities of a Series Prior to
Taking Certain Types of Action. With respect to the Securities of any Series,
in case:
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(a) the Company shall authorize the issuance to all holders of Common
Shares of rights or warrants to subscribe for or purchase shares of its capital
stock or of any other right;
(b) the Company shall authorize the distribution to all holders of Common
Shares of evidences of indebtedness or assets (except for cash dividends or
distributions paid from retained earnings of the Company);
(c) of any subdivision or combination of Common Shares or of any
consolidation or merger to which the Company is a party and for which approval
by the 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;
then the Company shall cause to be filed with the Trustee and at the office or
agency maintained for the purpose of conversion of Securities of such Series
pursuant to Section 3.2, and shall cause to be mailed to the Holders of
Securities of such Series, at their last addresses as they shall appear on the
Security register of the Company, at least ten days prior to the applicable
record date hereinafter specified, a notice stating (i) the date as of which the
holders of Common Shares to be entitled to receive any such rights, warrants or
distribution are to be determined, or (ii) the date on which any such
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action is expected to become effective, and the
date as of which it is expected that holders of record of Common Shares shall be
entitled to exchange their Common Shares for securities or other property, if
any, deliverable upon such subdivision, combination, consolidation, merger,
sale, transfer, dissolution, liquidation, winding up or other action. The
failure to give the notice required by this Section 13.8 or any defect therein
shall not affect the legality or validity of any distribution, right, warrant,
subdivision, combination, consolidation, merger, sale, transfer, dissolution,
liquidation, winding up or other action, or the vote upon any of the foregoing.
SECTION 13.9 Covenant to Reserve Shares for Issuance on Conversion of
Securities. The Company covenants that at all times it will reserve and keep
available out of each class of its authorized Common Shares, free from
preemptive rights, solely for the purpose of issue upon conversion of Securities
of any Series as herein provided, such number of Common Shares as shall then be
issuable upon the conversion of all Outstanding Securities of such Series. The
Company covenants that all Common Shares which shall be so issuable shall, when
issued or delivered, be duly and validly issued Common Shares into which
Securities of such Series are
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convertible, and shall be fully paid and nonassessable, free of all liens and
charges and not subject to preemptive rights and that, upon conversion, the
appropriate capital stock accounts of the Company will be duly credited.
SECTION 13.10 Compliance with Governmental Requirements. The Company
covenants that if any Common Shares required to be reserved for purposes of
conversion of Securities hereunder require registration or listing with or
approval of any governmental authority under any Federal or State law, pursuant
to the Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended, or any national or regional securities exchange on which the
Common Shares are listed at the time of delivery of any Common Shares, before
such shares may be issued upon conversion, the Company will use its best efforts
to cause such shares to be duly registered, listed or approved, as the case may
be.
SECTION 13.11 Payment of Taxes upon Certificates for Shares Issued
upon Conversion. The issuance of certificates for Common Shares upon the
conversion of Securities shall be made without charge to the converting Holders
for any tax (including, without limitation, all documentary and stamp taxes) in
respect of the issuance and delivery of such certificates, and such certificates
shall be issued in the respective names of, or in such names as may be directed
by, the holders of the Securities converted; provided, however, that the Company
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificate in a name
other than that of the Holder of the Security converted, and the Company shall
not be required to issue or deliver such certificate unless or until the Person
or Persons requesting the issuance 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 13.12 Trustee's Duties with Respect to Conversion Provisions.
The Trustee and any conversion agent shall have no duty, responsibility or
liability to any Holder to determine whether any facts exist which may require
any adjustment of the conversion rate, or with respect to the nature or extent
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. Neither the Trustee nor any conversion agent shall be accountable with
respect to the registration under securities laws, listing, validity or value
(or the kind or amount) of any Common Shares, or of any other securities or
property, which may at any time be issued or delivered upon the conversion of
any Security, and neither the Trustee nor any conversion agent makes any
representation with respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company to make any
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cash payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any Security
for the purpose of conversion; and the Trustee and any conversion agent, subject
to the provisions of Section 313 of the TIA, shall not be responsible for any
failure of the Company to comply with any of the covenants of the Company
contained in this Article Thirteen.
SECTION 13.13 Conversion of Securities Into Preferred Stock.
Notwithstanding anything to the contrary in this Article Thirteen, the Company
may issue Securities that are convertible into Preferred Shares, including
Preferred Shares convertible into Common Shares, in which case all terms and
conditions relating to the conversion of Securities into Preferred Shares,
including any terms similar to those provided in Sections 13.1 through 13.12,
shall be as provided in or pursuant to an appropriate resolution of the Board of
Directors or in any indenture supplemental hereto or as otherwise contemplated
by Section 2.3.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
SECTION 14.1 Securities Subordinated to Senior Indebtedness. The
Company covenants and agrees, and each Holder of Securities, by his acceptance
thereof, likewise covenants and agrees, that the indebtedness represented by the
Securities and the payment of any and all amounts payable in respect of each and
all of the Securities is hereby expressly subordinated, to the extent and in the
manner hereinafter set forth, in right of payment to the prior payment in full
of Senior Indebtedness, whether outstanding on the date of this Indenture or
therafter incurred, assumed or guaranteed.
In the event (a) of any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company whether in
a bankruptcy, insolvency, reorganization or receivership proceeding or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise, except a distribution in connection
with a merger or consolidation or a conveyance or transfer of all or
substantially all of the properties of the Company which complies with the
requirements of Article Nine, or (b) that a default shall have occurred and be
continuing with respect to the payment of any amount payable in respect of any
Senior Indebtedness, or (c) that the principal of the Securities of any Series
shall have been declared due and payable pursuant to Section 5.1 and such
declaration shall not have been rescinded and annulled as provided in Section
5.1, then:
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(1) in a circumstance described in the foregoing clause (a) or (b) the
holders of all Senior Indebtedness, and in the circumstance described in the
foregoing clause (c) the holders of all Senior Indebtedness outstanding at the
time the principal of such Securities (or in the case of Original Issue Discount
Securities, such portion of the principal amount) shall have been so declared
due and payable, shall first be entitled to receive payment of the full amount
due thereon, or provision shall be made for such payment in money or money's
worth, before the Holders of any of the Securities are entitled to receive any
payment in respect of the indebtedness evidenced by the Securities;
(2) any payment by, or distribution of assets of, the Company of any kind
or character, whether in cash, property or securities (other than securities of
the Company as reorganized or readjusted or securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in this Article
with respect to the Securities, to the payment of all Senior Indebtedness,
provided that the rights of the holders of the Senior Indebtedness are not
altered by such reorganization or readjustment), to which the Holders of any of
the Securities would be entitled except for the provisions of this Article shall
be paid or delivered by the person making such payment or distribution, whether
a trustee in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under which
any instrument evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account of such
Senior Indebtedness held or represented by each, to the extent necessary to make
payment in full of all Senior Indebtedness remaining unpaid after giving effect
to any concurrent payment or distribution (or provision therefor) to the holders
of such Senior Indebtedness, before any payment or distribution is made to the
Holders of the indebtedness evidenced by the Securities under this Indenture;
and
(3) in the event that, notwithstanding the foregoing, any payment by, or
distribution of assets of, the Company of any kind or character, whether in
cash, property or securities (other than securities of the Company as
reorganized or readjusted or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article with respect to the
Securities, to the payment of all Senior Indebtedness, provided that the rights
of the holders of Senior Indebtedness are not altered by such reorganization or
readjustment), shall
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be received by the Holders of any of the Securities before all Senior
Indebtedness is paid in full, such payment or distribution shall be paid
over to the holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under
which any instruments evidencing any of such Senior Indebtedness may have
been issued, ratably as aforesaid, for application to the payment of all
Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent
payment or distribution (or provision therefor) to the holders of such
Senior Indebtedness.
SECTION 14.2 Subrogation. Subject to the payment in full of all Senior
Indebtedness to which the indebtedness evidenced by the Securities is in the
circumstances subordinated as provided in Section 14.1, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
amounts owing on the Securities shall be paid in full, and, as between the
Company, its creditors other than holders of such Senior Indebtedness, and the
Holders of the Securities, no such payment or distribution made to the holders
of such Senior Indebtedness by virtue of this Article which otherwise would have
been made to the Holders of the Securities shall be deemed to be a payment by
the Company on account of such Senior Indebtedness, it being understood that the
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Indebtedness.
SECTION 14.3 Obligation of the Company Unconditional. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall impair, as between the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, to pay to the Holders of the
Securities the principal of and interest on and any additional amounts owing in
respect of the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of Senior Indebtedness nor shall anything herein or therein prevent
the Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article of the holders of Senior Indebtedness in
respect of cash, property or securities of the Company received upon the
exercise of any such remedy.
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<PAGE>
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which any such dissolution, winding up, liquidation or reorganization proceeding
affecting the affairs of the Company is pending or upon a certificate of the
trustee in bankruptcy, receiver, assignee for the benefit of creditors,
liquidating trustee or agent or other person making any payment or distribution,
delivered to the Trustee or to the Holders of the Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 14.4 Payments on Securities Permitted. Nothing contained in
this Article or elsewhere in this Indenture, or in any of the Securities, shall
affect the obligation of the Company to make, or prevent the Company from
making, payment of the principal of or interest on or any additional amounts
owing in respect of the Securities in accordance with the provisions hereof and
thereof, except as otherwise provided in this Article.
SECTION 14.5 Effectuation of Subordination by Trustee. Each Holder of
Securities, by his acceptance thereof, authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article and appoints the Trustee his attorney-in-
fact for any and all such purposes.
SECTION 14.6 Knowledge of Trustee. Notwithstanding the provisions of
this Article or any other provisions of this Indenture, the Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment of moneys to or by the Trustee, or the taking of any
other action by the Trustee, unless and until the Trustee shall have received
written notice thereof from the Company, any Holder of Securities, any paying or
conversion agent of the Company or the holder or representative of any class of
Senior Indebtedness; provided, however, that if the Trustee shall not have
received the notice provided for in this Section at least three Business Days
prior to the date upon which, by the terms hereof, any money may become payable
for any purpose (including, without limitation, the payment of the principal of
or interest on, or additional amounts owing in respect of, any Security) then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have all power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary
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which may be received by it during or after such three Business Day period.
SECTION 14.7 Trustee May Hold Senior Indebtedness. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
313 of the TIA or elsewhere in this Indenture shall deprive the Trustee of any
of its rights as such holder.
Nothing in this Article shall subordinate any claims of, or payments
to, the Trustee (under or pursuant to Section 6.7) to Senior Indebtedness.
SECTION 14.8 Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of any Senior Indebtedness to enforce
the subordination herein shall at any time or in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any non-
compliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
* * * * *
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereto affixed and
attested, all as of the day and year first above written.
FMC CORPORATION
By:___________________________
Name:
Title:
ATTEST:
By:_________________________
Name:
Title:
[CORPORATE SEAL]
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By:___________________________
Name:
Title:
ATTEST:
By:_________________________
Name:
Title:
[CORPORATE SEAL]
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EXHIBIT 4.7
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FMC CORPORATION
STANDARD [COMMON/PREFERRED] STOCK WARRANT
AGREEMENT PROVISIONS
September __, 1995
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<PAGE>
From time to time, FMC Corporation, a Delaware corporation (the "Company"),
may enter into one or more warrant agreements that provide for the issuance and
sale of warrants ("Warrants") to purchase shares of the Company's [Common Stock,
$0.10 par value/specify preferred stock] (such shares are hereinafter referred
to as the "Shares" and, where appropriate, such term shall also mean the other
securities or property purchasable upon the exercise of the Warrants upon the
happening of certain events as provided for herein, and such [Common/Preferred]
Stock is hereinafter referred to as the "Stock"). The standard provisions set
forth herein may be incorporated by reference in any such warrant agreement (a
"Warrant Agreement"). The Warrant Agreement, including the provisions
incorporated therein by reference, is herein referred to as this "Agreement."
The person named as the "Warrant Agent" in the first paragraph of the Warrant
Agreement is herein referred to as the "Warrant Agent." Unless otherwise
defined in this Agreement or in the Warrant Agreement, as the case may be, terms
defined in the Warrant Agreement are used herein as therein defined and terms
defined herein are used in the Warrant Agreement as herein defined.
SECTION 1. Number of Warrants Unlimited; Issuable from Time to Time. The
number of Warrants which may be issued and delivered under this Agreement is
unlimited.
There shall be established in or pursuant to a resolution of the Board of
Directors of the Company or established in one or more warrant agreements
supplemental hereto, prior to the issuance of any Warrants:
(1) the Designation of such Warrants,
(2) if the Warrants are issued together as a unit with any other securities
of the Company, the date after which the Warrants shall be freely
tradeable separately from such other securities (the "Distribution
Date") and if the Company may at its option or under circumstances
described therein provide for an earlier Distribution Date,
(3) the Expiration Date pursuant to Section 6,
(4) the Exercise Price and any form of consideration other than lawful
money of the United States of America by which the Exercise Price may
be paid pursuant to Section 6,
(5) the Call Price, Call Date and Call Terms pursuant to Section 7,
(6) the limitations, if any, upon the Reduced Exercise Price and the
Reduced Exercise Price Period pursuant to Section 8,
<PAGE>
(7) the circumstances, if any, under which the Exercise Price and the
number of Shares purchasable upon the exercise of each Warrant and the
number of Warrants outstanding are subject to adjustment and the manner
of making any such adjustment.
SECTION 2. Form of Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") to be delivered pursuant to this Agreement
shall be in registered form only. The Warrant Certificates shall be in
substantially such form or forms as shall be established by the Company from
time to time pursuant to one or more resolutions of the Board of Directors of
the Company or in one or more warrant agreements supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
as may, consistently herewith, be determined by the officers executing such
Warrants, as evidenced by their execution of the Warrants.
SECTION 3. Execution of Warrant Certificates. Warrant Certificates shall
be signed on behalf of the Company by its Chairman of the Board of Directors,
its Chief Executive Officer, its President, a Vice President or its Treasurer
and attested by its Secretary or Assistant Secretary, under its corporate seal.
Each such signature upon the Warrant Certificates may be in the form of a
facsimile signature of the current or any future Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Warrant Certificates
shall be countersigned and delivered or disposed of such person shall have
ceased to hold such office. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
If any officer the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such officer
of the Company; and any Warrant Certificate may be signed on behalf of the
Company by any person who, at the actual date of the execution of such Warrant
Certificate, shall be a proper officer of the Company to sign such Warrant
Certificate, although at the date
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of the execution of this Agreement any such person was not such officer.
SECTION 4. Registration and Countersignature. Warrant Certificates shall
be manually countersigned and dated the date of countersignature by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. The
Warrants shall be numbered and shall be registered in a register (the "Warrant
Register") to be maintained by the Warrant Agent.
The Warrant Agent's countersignature on all Warrants shall be substantially
the following form:
[NAME OF WARRANT AGENT],
as Warrant Agent
By_________________________
Authorized Signatory
The Company and the Warrant Agent may deem and treat the registered holder
of a Warrant Certificate as the absolute owner thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for the purpose
of any exercise thereof or any distribution to the holder thereof and for all
other purposes, and neither the Company nor the Warrant Agent shall be affected
by any notice to the contrary.
SECTION 5. Registration of Transfers and Exchanges. The Warrant Agent
shall from time to time register the transfer of any outstanding Warrant
Certificates in the Warrant Register, upon surrender of such Warrant
Certificates, duly endorsed, and accompanied by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly signed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by (a) a bank or trust company, (b) a broker or dealer that is a
member of the National Association of Securities Dealers, Inc. (the "NASD") or
(c) a member of a national securities exchange. Upon any such registration of
transfer, a new Warrant Certificate shall be issued to the transferee.
Warrant Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Warrant Agent at its offices or agency
maintained for the purpose of exchanging, transferring and exercising the
Warrants (a "Warrant Agent Office") or at the offices of any successor Warrant
Agent as provided in Section 19 hereof, for another Warrant Certificate or other
Warrant
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<PAGE>
Certificates of like tenor representing in the aggregate a like number of
Warrants.
The Warrant Agent is hereby authorized to countersign, in accordance with
the provisions of this Section 5 and of Section 4, and deliver the new Warrant
Certificates required pursuant to the provisions of this Section, and for the
purpose of any distribution of Warrant Certificates contemplated by Section 14.
SECTION 6. Duration and Exercise of Warrants. The Warrants shall expire
on (a) the close of business on the date set forth pursuant to Section 1, or (b)
such later date as shall be determined in the sole discretion of the Company, in
a written statement to the Warrant Agent and with notice to registered holders
of Warrants in the manner provided for in Section 16 (such date of expiration
being herein referred to as the "Expiration Date"). On and after the
Distribution Date, each Warrant may be exercised on any business day on or
prior to the close of business on the Expiration Date. After the close of
business on the Expiration Date, the Warrants will become void and of no value.
Subject to the provisions of this Agreement, including Section 14, the
holder of each Warrant shall have the right to purchase from the Company (and
the Company shall issue and sell to such holder of a Warrant) one fully paid and
nonassessable Share at the price set forth pursuant to Section 1 (such price, as
may be adjusted from time to time as provided in Section 14, being the "Exercise
Price") upon depositing with the Warrant Agent at a Warrant Agent Office the
Warrant Certificate evidencing such Warrant, with the form of election to
purchase on the reverse thereof duly completed and signed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed by a bank or
trust company, by a broker or dealer which is a member of NASD or by a member of
a national securities exchange, and upon payment of the Exercise Price for the
number of Shares in respect of which such Warrant are being exercised. Unless
otherwise provided pursuant to Section 1, payment of the aggregate Exercise
Price shall be made in lawful money of the United States of America.
Subject to Section 10, upon such surrender of a Warrant Certificate and
payment of the Exercise Price, the Warrant Agent shall requisition from the
Company's Stock transfer agent (the "Transfer Agent") for issuance and delivery
to or upon the written order of the registered holder of such Warrant
Certificate and in such name or names as such registered holder may designate, a
certificate or certificates for the Share or Shares issuable upon the exercise
of the Warrant or Warrants evidenced by such Warrant Certificate. Such
certificate or certificates shall be deemed to have been issued and any person
so designated to be named therein shall be deemed to have become the holder of
record of such Share
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<PAGE>
or Shares as of the date of the surrender of such Warrant Certificate duly
executed and payment of the Exercise Price. The Warrants evidenced by a Warrant
Certificate shall be exercisable, at the election of the registered holder
thereof, either as an entirety or from time to time for a portion of the number
of Warrants specified in the Warrant Certificate. If less than all of the
Warrants evidenced by a Warrant Certificate surrendered upon the exercise of
Warrants are exercised at any time prior to the date of expiration for the
Warrants, a new Warrant Certificate or Certificates shall be issued for the
remaining number of Warrants evidenced by the Warrant Certificate so
surrendered, and the Warrant Agent is hereby authorized to countersign the
required new Warrant Certificate or Certificates pursuant to the provisions of
Section 5 and this Section 6.
The Warrant Agent shall account promptly to the Company with respect to
Warrants exercised and concurrently pay or deliver to the Company all moneys and
other consideration received by it on the purchase of Shares through the
exercise of Warrants.
SECTION 7. Call of Warrants by the Company. The Company shall have the
right to call and repurchase any or all Warrants at the price (the "Call Price")
and on or after the date (the "Call Date") and upon the terms (the "Call Terms")
as shall be set forth pursuant to Section 1. Notice of such Call Price, Call
Date and Call Terms shall be given to registered holders of Warrants in the
manner provided in Section 16.
SECTION 8. Optional Reduction of Exercise Price. Subject to the limits,
if any, set forth pursuant to Section 1, the Company shall have the right, at
any time or from time to time, voluntarily to reduce the then current Exercise
Price to such amount (the "Reduced Exercise Price") and for such period or
periods of time, which may be through the close of business on the Expiration
Date (the "Reduced Exercise Price Period") as may be deemed appropriate by the
Company. Notice of any such Reduced Exercise Price and Reduced Exercise Price
Period shall be given to registered holders or Warrants in the manner provided
in Section 16. After the termination of the Reduced Exercise Price Period, the
Exercise Price shall be such Exercise Price that would have been in effect, as
adjusted pursuant to the provisions of Section 14, had there been no reduction
in the Exercise Price pursuant to the provisions of this Section 8. No
reduction of the then current Exercise Price pursuant to the provisions of this
Section 8 shall be deemed for the purposes of Section 14 hereof to alter or
adjust the Exercise Price.
SECTION 9. Cancellation of Warrants. If the Company shall purchase or
otherwise acquire Warrants, the Warrant Certificate representing such Warrants
shall thereupon be delivered to the Warrant Agent and be cancelled by it and
retired. The Warrant Agent shall cancel all Warrant Certificates surrendered
for
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<PAGE>
exchange, substitution, transfer or exercise in whole or in part. Such cancelled
Warrant Certificates shall thereafter be disposed of in a manner satisfactory to
the Company.
SECTION 10. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Warrants and of Shares upon the
exercise of Warrants; provided, that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer involved in the
issue of any Warrant Certificates or any certificates for Shares in a name other
than the registered holder of a Warrant Certificate surrendered upon the
exercise of a Warrant, and the Company shall not be required to issue or deliver
such certificates unless or until the person or persons requesting the issuance
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 11. Mutilated or Missing Warrant Certificates. If any of the
Warrant Certificates shall be mutilated, lost, stolen or destroyed, the Company
may in its discretion issue, and the Warrant Agent shall countersign and
deliver, in exchange and substitution for and upon cancellation of the mutilated
Warrant Certificate, or in lieu of and substitution for the Warrant Certificate
lost, stolen or destroyed, a new Warrant Certificate of like tenor and
representing an equivalent number of Warrants, but only upon receipt of evidence
satisfactory to the Company and the Warrant Agent of such loss, theft or
destruction of such Warrant Certificate and indemnity or bond, if requested,
also satisfactory to them. Applicants for such substitute Warrant Certificates
shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Company or the Warrant Agent may prescribe.
SECTION 12. Reservation of Shares. For the purpose of enabling it to
satisfy any obligation to issue Shares upon exercise of Warrants, the Company
will at all times through the close of business on the Expiration Date, reserve
and keep available, free from preemptive rights and out of its aggregate
authorized but unissued or treasury shares of Stock, the number of Shares
deliverable upon the exercise of all outstanding Warrants, and the Transfer
Agent for such Stock is hereby irrevocably authorized and directed at all times
to reserve such number of authorized and unissued or treasury shares of Stock as
shall be required for such purpose. The Company will keep a copy of this
Agreement on file with such Transfer Agent and with every transfer agent for any
shares of the Company's capital stock issuable upon the exercise of Warrants
pursuant to Section 14. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from such Transfer Agent stock certificates
issuable upon exercise of outstanding Warrants, and the Company will supply such
Transfer Agent with duly executed stock certificates for such purpose.
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Before taking any action that would cause an adjustment pursuant to Section
14 reducing the Exercise Price below the then par value (if any) of the Shares
issuable upon exercise of the Warrants, the Company will take any corporate
action that may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Shares at the
Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the Warrants,
will, upon issuance in accordance with the terms of this Agreement, be fully
paid and nonassessable and free from all taxes, liens, charges and security
interests created by or imposed upon the Company with respect to the issuance
and holding thereof.
SECTION 13. Obtaining of Governmental Approvals and Stock Exchange
Listings. So long as any Warrants remain outstanding, the Company will take all
necessary steps (a) to obtain and keep effective any and all permits, consents
and approvals of governmental agencies and authorities and to make filings under
federal and state securities acts and laws, which may be or become requisite in
connection with the issuance, sale, transfer and delivery of the Warrant
Certificates, the exercise of the Warrants and the issuance, sale, transfer and
delivery of the Shares issued upon exercise of Warrants, and (b) to have the
shares of Stock, immediately upon their issuance upon exercise of Warrants, (i)
listed on each national securities exchange on which the Stock is then listed or
(ii) if the Stock is not then listed on any national securities exchange, listed
for quotation on the NASD Automated Quotations System ("NASDAQ") National Market
System ("NASDAQ/NMS") or such other over-the-counter quotation system on which
the Stock may then be listed.
SECTION 14. Adjustment of Exercise Price and Number of Shares Purchasable
or Number of Warrants. Except as may be otherwise provided in accordance with
Section 1, the Exercise Price, the number of Shares purchasable upon the
exercise of each Warrant and the number of Warrants outstanding are subject to
adjustment from time to time upon the occurrence of the events enumerated in
this Section 14.
(a) If the Company shall (i) pay a dividend on its capital stock (including
Stock) in shares of Stock, (ii) subdivide its outstanding shares of Stock, (iii)
combine its outstanding shares of Stock into a smaller number of shares of Stock
or (iv) issue any shares of its capital stock in a reclassification of the Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), the number of Shares
purchasable upon exercise of each Warrant immediately prior thereto shall be
adjusted so that the holder of each Warrant shall be entitled to receive the
kind and number of Shares or other securities of the Company which such holder
would have owned or have been entitled to receive after the
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happening of any of the events described above, had such Warrant been exercised
immediately prior to the happening of such event or any record date with respect
thereto. An adjustment made pursuant to this paragraph (a) shall become
effective immediately after the effective date of such event retroactive to the
record date, if any, for such event.
(b) In the event of any capital reorganization or any reclassification of
the Stock (except as provided in paragraph (a) above or paragraph (h) below),
any holder of Warrants upon exercise thereof shall be entitled to receive, in
lieu of the Stock to which he would have become entitled upon exercise
immediately prior to such reorganization or reclassification, the shares (of any
class or classes) or other securities or property of the Company that he would
have been entitled to receive at the same aggregate Exercise Price upon such
reorganization or reclassification if his Warrants had been exercised
immediately prior thereto; and in any such case, appropriate provision (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be evidenced by a resolution filed
with the Warrant Agent) shall be made for the application of this Section 14
with respect to the rights and interests thereafter of the holders of Warrants
(including the allocation of the adjusted Exercise Price between or among shares
of classes of capital stock), to the end that this Section 14 (including the
adjustments of the number of shares of Stock or other securities purchasable and
the Exercise Price thereof) shall thereafter be reflected, as nearly as
reasonably practicable, in all subsequent exercises of the Warrants for any
shares or securities or other property thereafter deliverable upon the exercise
of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof, no adjustment
in the number of Shares purchasable hereunder shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in
the number of Shares purchasable upon the exercise of each Warrant; provided,
however, that any adjustments which by reason of this paragraph (c) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the nearest cent and
to the nearest one-hundredth of a Share, as the case may be.
(d) Whenever the number of Shares purchasable upon the exercise of each
Warrant is adjusted as herein provided (whether or not the Company then or
thereafter elects to issue additional Warrants in substitution for an adjustment
in the number of Shares as provided in paragraph (f)), the Exercise Price
payable upon exercise of each Warrant shall be adjusted by multiplying such
Exercise Price immediately prior to such adjustments by a fraction, of which the
numerator shall be the number of Shares purchasable upon the exercise of each
Warrant immediately prior to such
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adjustment, and the denominator shall be the number of Shares so purchasable
immediately thereafter.
(e) For the purpose of this Section 14, the term "shares of Stock" shall
mean (i) the class of stock designated as the [Common/specify preferred stock]
Stock of the Company at the date of this Agreement, or (ii) any other class of
stock resulting from successive changes or reclassification of such shares
consisting solely of changes in par value, of from par value to no par value, or
from no par value to par value. If at any time, as a result of an adjustment
made pursuant to paragraph (a) or (b) above, the holders of Warrants shall
become entitled to purchase any shares of the Company other than shares of
Stock, thereafter the number of shares so purchasable upon exercise of each
Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Shares contained in paragraph (a) through
(d), inclusive, above, and the provisions of Sections 5, 10, 12, 13(a) and 16,
with respect to the Shares, shall apply on like terms to any such other shares.
(f) The Company may elect, on or after the date of any adjustment required
by paragraphs (a) or (b) of this Section 14, to adjust the number of Warrants
in substitution for an adjustment in the number of Shares purchasable upon the
exercise of a Warrant. Each of the Warrants outstanding after such adjustment
of the number of Warrants shall be exercisable for the same number of Shares as
immediately prior to such adjustment. Each Warrant held of record prior to such
adjustment of the number of Warrants shall become that number of Warrants
(calculated to the nearest hundredth) obtained by dividing the Exercise Price in
effect prior to adjustment of the Exercise Price by the Exercise Price in effect
after the adjustment of the Exercise Price. The Company shall notify the
holders of Warrants in the same manner as provided in the first paragraph of
Section 16, of its election to adjust the number of Warrants, indicating the
record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the Exercise
Price is adjusted or any day thereafter. Upon each adjustment of the number of
Warrants pursuant to this paragraph (f) the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Warrants on such
record date Warrant Certificates evidencing, subject to Section 15, the
additional Warrants to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed to
such holders of record in substitution and replacement for the Warrant
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to be issued, executed and registered in the manner
specified in Sections 4 and 5 (and which may bear, at the option of the Company,
the adjusted Exercise Price) and shall be registered in the names of the holders
of
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record of Warrant Certificates on the record date specified in the notice.
(g) Except as provided in paragraph (a) of this Section 14, no adjustment
in respect of any dividends shall be made during the term of a Warrant or upon
the exercise of a Warrant.
(h) In case of any consolidation of the Company with or merger of the
Company into another corporation or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, the Company or such successor or purchasing corporation, as the case
may be, shall execute with the Warrant Agent an Agreement that each holder of a
Warrant shall have the right thereafter upon payment of the Exercise Price in
effect immediately prior to such action to purchase upon exercise of each
Warrant the kind and amount of shares and other securities and property which he
would have owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had such Warrant been exercised
immediately prior to such action. The Company shall mail by first class mail,
postage prepaid, to each holder of a Warrant, notice of the execution of any
such agreement. Such agreement shall provide for adjustments, which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 14. The provisions of this paragraph (h) shall similarly apply to
successive consolidations, mergers, sales or conveyances. The Warrant Agent
shall be under no duty or responsibility to determine the correctness of any
provisions contained in any provisions contained in any such agreement relating
either to the kind or amount of shares of stock or other securities or property
receivable upon exercise of Warrants or with respect to the method employed and
provided therein for any adjustments and shall be entitled to rely upon the
provisions contained in any such agreement.
(i) Irrespective of any adjustments in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
SECTION 15. Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of Warrants on any
distribution of Warrants to holders of Warrant Certificates pursuant to Section
14(f) or to distribute Warrant Certificates that evidence fractional Warrants.
In lieu of such fractional Warrants there shall be paid to the registered
holders of the Warrant Certificates with regard to which such fractional
Warrants would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a full Warrant. For purposes of this
Section 15(a), the current market value of a
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Warrant shall be the closing price of one Warrant (as determined pursuant to
paragraph (c) below) for the trading day immediately prior to the date on which
such fractional Warrant would have been otherwise issuable.
(b) Notwithstanding any adjustment pursuant to Section 14 in the number of
Shares purchasable upon the exercise of Warrant, the Company shall not be
required to issue fractions of Shares upon exercise of the Warrants or to
distribute certificates which evidence fractional Shares. In lieu of fractional
Shares, there shall be paid to the registered holders of Warrant Certificates at
the time such Warrant Certificates are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of a share of Stock.
For purposes of this Section 15(b), the current market value of share of Stock
shall be the closing price of a share of Stock (as determined pursuant to
paragraph (c) below) for the trading day immediately prior to the date of such
exercise.
(c) The closing price for each day shall be the last sale price, regular
way, or, if no such sale takes place on such day, the average of the closing bid
and asked prices, regular way, for such day, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the Warrants
or Stock, as the case may be, is not listed or admitted to trading on such
exchange, as reported on the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Warrants or Stock, respectively, is listed or admitted to trading,
or if the Warrants or Stock, as the case may be, is not listed or admitted to
trading on any national securities exchange, as reported on NASDAQ/NMS or, if
the Warrants or Stock, as the case may be, is not listed or admitted to trading
on NASDAQ/NMS, as reported on NASDAQ.
SECTION 16. Notices to Warrantholders. Upon any adjustment of the number
of Shares purchasable upon exercise of each Warrant, the Exercise Price or the
number of Warrants outstanding pursuant to Section 14, the Company within 20
calendar days thereafter shall (i) cause to be filed with the Warrant Agent a
certificate of a firm of independent public accountants of recognized standing
selected by the Company (who may be the regular auditors of the Company) setting
forth the Exercise Price and either the number of Shares purchasable upon
exercise of each Warrant or the additional number of Warrants to be issued for
each previously outstanding Warrant, as the case may be, after such adjustment
and setting forth in reasonable detail the method of calculation and the facts
upon which such adjustment was made, which certificate shall be conclusive
evidence of the correctness of the matters set forth therein, and (ii) cause to
be given to each of the registered holders of the Warrant Certificates at such
holder's address appearing on the Warrant Register written notice of such
adjustments by first class mail, postage prepaid. Where
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appropriate, such notice may be given in advance and included as a part of the
notice required to be mailed under the other provisions of this Section 16.
Pursuant to Sections 1, 6, 7 and 8, the Company shall cause written notice
of such later Distribution Date, such later Expiration Date, such Call Price,
Call Date and Call Terms and such Reduced Exercise Price and Reduced Exercise
Price Period, as the case may be, to be given as soon as practicable to the
Warrant Agent and to each of the registered holders of the Warrant Certificates
by first class mail, postage prepaid, at such holder's address appearing on the
Warrant Register. In addition to the written notice referred to in the
preceding sentence, the Company shall make a public announcement in a daily
morning newspaper of general circulation in New York City and in Chicago of such
earlier Distribution Date, such later Expiration Date, such Call Price, Call
Date and Call Terms and such Reduced Exercise Price and Reduced Exercise Price
Period, as the case may be, at least once a week for two successive weeks prior
to the implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any securities upon
its shares of Stock or make any distribution (other than a cash dividend) to the
holders of its shares of Stock, or
(b) the Company shall offer to the holders of its shares of Stock any
additional shares of Stock or securities convertible into shares of Stock or any
right to subscribe thereto, or
(c) there shall be a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger or sale of all or
substantially all of its property, assets and business as an entirety),
then the Company shall (i) cause written notice of such event to be filed with
the Warrant Agent and shall cause written notice of such event to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first class mail, postage prepaid,
and (ii) make a public announcement in a daily newspaper of general circulation
in New York City and in Chicago of such event, such giving of notice and
publication to be completed at least 10 calendar days (or 20 calendar days in
any case specified in clause (c) above) prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or winding up. Such notice shall specify such record
date or the date of closing the transfer books, as the case may be. The failure
to give the notice required by this
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Section 16 or any defect therein shall not affect the legality or validity of
any distribution, right, warrant, dissolution, liquidation or winding up or the
vote upon or any other action taken in connection therewith.
SECTION 17. Merger, Consolidation or Change of Name of Warrant Agent. Any
corporation into which the Warrant 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 the Warrant Agent shall be a party, or any
corporation succeeding to the corporate trust business of the Warrant Agent,
shall be the successor to the Warrant Agent hereunder without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment as a successor
Warrant Agent under the provision of Section 19. If at the time such successor
to the Warrant Agent shall succeed under this Agreement, any of the Warrant
Certificates shall have been countersigned but not delivered, any such successor
to the Warrant Agent may adopt the countersignature of the original Warrant
Agent; and if at that time any of the Warrant Certificates shall not have been
countersigned, any successor to the Warrant Agent may countersign such Warrant
Certificates either in the name of the predecessor Warrant Agent or in the name
of the successor Warrant Agent; and in all such cases such Warrant Certificates
shall have the full force provided in the Warrant Certificates and in this
Agreement.
If at any time the name of the Warrant Agent shall be changed and at such
time any of the Warrant Certificates shall have been countersigned but not
delivered, the Warrant Agent whose name has changed may adopt the
countersignature under its prior name; and if at that time any of the Warrant
Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name; and in all such cases such Warrant Certificates shall have the full force
provided in the Warrant Certificates and in this Agreement.
SECTION 18. Warrant Agent. The Warrant Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Warrants, by their acceptance
thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates shall
be taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. Except as herein
otherwise provided, the Warrant Agent assumes no responsibility with respect to
the execution, delivery or distribution of the Warrant Certificates.
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(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company nor shall it at any
time be under any duty or responsibility to any holder of a Warrant to make or
cause to be made any adjustment in the Exercise Price or in the number of Shares
issuable upon exercise of any Warrant (except as instructed by the Company), or
to determine whether any facts exist which may require any such adjustments, or
with respect to the nature or extent of or method employed in making any such
adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to
it (who may be counsel for the Company) and the Warrant Agent shall incur no
liability or responsibility to the Company or any holder of any Warrant
Certificate in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate or other
paper, document or instrument believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent under this Agreement, to
reimburse the Warrant Agent upon demand for all expenses, taxes and governmental
charges and other charges of any kind and nature incurred by the Warrant Agent
in the performance of its duties under this Agreement and to indemnify the
Warrant Agent and save it harmless against any and all losses, liabilities and
expenses, including judgments, costs and reasonable counsel fees, for anything
done or omitted by the Warrant Agent arising out of or in connection with this
Agreement except as a result of its negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to institute any action,
suit or legal proceeding or to take any other action likely to involve expense
unless the Company or one or more registered holders of Warrant Certificates
shall furnish the Warrant Agent with reasonable security and indemnity for any
costs or expenses which may be incurred. All rights of action under this
Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery or judgment shall be for
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the ratable benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or employee
thereof, may buy, sell or deal in any of the Warrants or other securities of the
Company or become pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though they were not the Warrant Agent under this
Agreement, or a stockholder, director, officer or employee of the Warrant Agent,
as the case may be. Nothing herein shall be preclude the Warrant Agent from
acting in any other capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company,
and its duties shall be determined solely by the provisions hereof. The Warrant
Agent shall not be liable for anything which it may or do or refrain from doing
in connection with this Agreement except for its own negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Warrant Agent for the carrying out or performing of the provisions of
this Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due execution hereof by the Warrant Agent) or in respect of the validity or
execution of any Warrant Certificate (except its countersignature thereof), nor
shall the Warrant Agent by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of the Shares
to be issued pursuant to this Agreement or any Warrant Certificate or as to
whether the Shares will when issued be validly issued, fully paid and
nonassessable or as to the Exercise Price or the number of Shares issuable upon
exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer, the Secretary or any Assistant Secretary of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such officer or
in good faith reliance upon any statement signed by any one of such officers of
the Company with respect to any fact or matter (unless other evidence in respect
thereof is herein
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specifically prescribed) which may be deemed to be conclusively proved and
established by such signed statement.
SECTION 19. Change of Warrant Agent. If the Warrant Agent shall resign
(such resignation to become effective not earlier than 60 days after the giving
of written notice thereof to the Company and the registered holders of Warrant
Certificates) or shall become incapable of acting as Warrant Agent or if the
Board of Directors of the Company shall by resolution remove the Warrant Agent
(such removal to become effective not earlier than 30 days after the filing of a
certified copy of such resolution with the Warrant Agent and the giving of
written notice of such removal to the registered holders of Warrant
Certificates), the Company shall appoint a successor to the Warrant Agent. If
the Company shall fail to make such appointment within a period of 30 days after
such removal or after it has been so notified in writing of such resignation or
incapacity by the Warrant Agent or by the registered holder of a Warrant
Certificate (in the case of incapacity), then the registered holder of any
Warrant Certificate may apply to any court of competent jurisdiction for the
appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by such a court, the
duties of the Warrant Agent shall be carried out by the Company. Any successor
Warrant Agent, whether appointed by the Company or by such a court, shall be a
bank or trust company, in good standing, incorporated under the laws of any
state or of the United States of America. As soon as practicable after
appointment of the successor Warrant Agent, the Company shall cause written
notice of the change in the Warrant Agent to be given to each of the registered
holders of the Warrant Certificates at such holder's address appearing on the
Warrant Register. After appointment, the successor Warrant Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Warrant Agent without further act or deed. The former
Warrant Agent shall deliver and transfer to the successor Warrant Agent any
property at the time held by it hereunder and execute and deliver, at the
expense of the Company, any further assurance, conveyance, act or deed necessary
for the purpose. Failure to give any notice provided for in this Section 19 or
any defect therein, shall not affect the legality or validity of the removal of
the Warrant Agent or the appointment of a successor Warrant Agent, as the case
may be.
SECTION 20. Warrantholder Not Deemed a Stockholder. Nothing contained in
this Agreement or in any of the Warrant Certificates shall be construed as
conferring upon the holders thereof the right to vote or to receive dividends or
to consent or to receive notice as stockholders in respect of the meetings of
stockholders or for the election of directors of the Company or any other
matter, or any rights whatsoever as stockholders of the Company.
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SECTION 21. Delivery of Prospectus. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver to
such holder, prior to or concurrently with the delivery of the certificate or
certificates for the Shares issued upon such exercise, a copy of the prospectus.
SECTION 22. Notices to Company and Warrant Agent. Any notice or demand
authorized by this Agreement to be given or made by the Warrant Agent or by any
registered holder of any Warrant Certificate to or on the Company shall be
sufficiently given or made if sent by mail, first class or registered, postage
prepaid, addressed (until another address is filed in writing by the Company
with the Warrant Agent), as follows:
FMC Corporation
200 East Randolph Drive
Chicago, IL 60601
Attention: Corporate Secretary
If the Company shall fail to maintain such office or agency or shall fail
to give such notice of any change in the location thereof, presentation may be
made and notices and demands may be served at the principal office of the
Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by any
registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) to the Warrant Agent at the address set forth in the Warrant
Agreement.
SECTION 23. Supplements and Amendments. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval of
any holders of Warrant Certificates in order to designate Warrants pursuant to
Section 1, to cure any ambiguity, manifest error or other mistake in this
Agreement, or to correct or supplement any provision contained herein that may
be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder that the
Company and the Warrant Agent may deem necessary or desirable and that shall not
adversely affect, alter or change the interests of the holders of the Warrant
Certificates.
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SECTION 24. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 25. Termination. This Agreement shall terminate at the close of
business on the Expiration Date. Notwithstanding the foregoing, this Agreement
will terminate on any earlier date when all Warrants have been exercised. The
provisions of Section 18 shall survive such termination.
SECTION 26. Governing Law. This Agreement and each Warrant Certificate
issued hereunder 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 such State.
SECTION 27. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered holders of the Warrant Certificates any legal
or equitable right, remedy or claim under this Agreement, and this Agreement
shall be for the sole and exclusive benefit of the Company, the Warrant Agent
and the registered holders of the Warrant Certificates.
SECTION 28. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
SECTION 29. Headings. The headings of sections of this Agreement have
been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
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EXHIBIT 4.8
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FMC CORPORATION
STANDARD DEBT SECURITIES WARRANT
AGREEMENT PROVISIONS
September __, 1995
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<PAGE>
From time to time, FMC Corporation, a Delaware corporation (the
"Company"), may enter into one or more warrant agreements that provide for the
issuance and sale of warrants ("Warrants") to purchase debt securities of the
Company ("Debt Securities"). The standard provisions set forth herein may be
included or incorporated by reference in any such warrant agreement (a "Warrant
Agreement"). The Warrant Agreement, including the provisions incorporated
therein by reference, is herein referred to as this "Agreement." The person
named as the "Warrant Agent" in the first paragraph of the Warrant Agreement is
herein referred to as the "Warrant Agent." Unless otherwise defined in this
Agreement or in the Warrant Agreement, as the case may be, terms defined in the
Warrant Agreement are used herein as therein defined and terms defined herein
are used in the Warrant Agreement as herein defined.
SECTION 1. Issuance of Warrant Certificates. Each Warrant
Certificate shall evidence one or more Warrants. Each Warrant evidenced thereby
shall represent the right, subject to the provisions contained herein and
therein, to purchase a Debt Security in the principal amount set forth in the
Warrant Agreement.
SECTION 2. Execution and Delivery of Warrant Certificates. Each
Warrant Certificate, whenever issued, shall be in registered form substantially
in such form or forms as shall be established by the Company from time to time
pursuant to one or more resolutions of the Board of Directors of the Company or
in one or more warrant agreements supplemental hereto, and in each case shall be
dated as of the date of issuance thereof, and may have such letters, numbers or
other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as the officers of the Company
executing the Warrant Certificate may approve (execution thereof to be
conclusive evidence of such approval) and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with (i) any law
or with any rule or regulation made pursuant thereto or (ii) any rule or
regulation of any stock exchange on which the Warrant Certificates may be
listed, or to conform to usage. The Warrant Certificates shall be signed on
behalf of the Company by its Chairman of the Board of Directors, a Vice Chairman
of the Board of Directors, its President, a Vice President or its Treasurer and
attested by its Secretary or Assistant Secretary, under its corporate seal.
Such signatures may be manual or facsimile signatures of such authorized
officers and may be imprinted or otherwise reproduced on the Warrant
Certificates. The seal of the Company may be in the form of a facsimile thereof
and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant
Certificates.
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No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
delivered hereunder.
If any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been countersigned
and delivered to the Warrant Agent, such Warrant Certificates nevertheless may
be countersigned and delivered as though the person who signed such Warrant
Certificates had not ceased to be such officer of the Company. Any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not an officer.
SECTION 3. Countersignature of Warrant Certificates. The Warrant
Agent shall, upon receipt of Warrant Certificates, duly executed on behalf of
the Company, countersign the Warrant Certificates evidencing Warrants to
purchase the principal amount of the Debt Securities set forth in the Warrant
Agreement and shall deliver such Warrant Certificates to the appropriate person
or entity upon the order of the Company. After the original issuance of the
Warrant Certificates, the Warrant Agent shall countersign a Warrant Certificate
only if the Warrant Certificate is issued in exchange or substitution for, or in
connection with the registration of transfer of, one or more previously
countersigned Warrant Certificates, as hereinafter provided.
SECTION 4. Warrant Price. The exercise price of each Warrant and
any other form of consideration other than lawful money of the United States of
America by which the exercise price may be paid shall be as set forth in the
Warrant Agreement. The purchase price (including moneys and such other
consideration) of the Debt Securities upon exercise of the Warrants is referred
to in this Agreement as the "Warrant Price" and is payable in full at the time
of exercise.
SECTION 5. Duration of Warrant Certificates. Warrant Certificates
may be exercised in whole at any time, and in part from time to time, during the
period set forth in the Warrant Agreement (the "Expiration Date"). Each Warrant
Certificate not exercised on or before the Expiration Date shall become void,
and
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all rights of the holder thereunder and under this Agreement shall cease.
SECTION 6. Exercise of Warrant Certificates.
(a) Prior to the Expiration Date, a Warrant Certificate, if
countersigned by the Warrant Agent, may be exercised in whole or in part by
providing certain information set forth on the reverse side of the Warrant
Certificate and, unless otherwise provided pursuant to Section 4, by paying in
full (in cash or by certified or official bank check in New York Clearing House
funds or by bank wire transfer in immediately available funds), in United States
dollars, the Warrant Price for the Debt Securities as to which the Warrant
Certificate is exercised, to the Warrant Agent at its corporate trust office at
the address set forth in the Warrant Agreement. The payment must specify the
name of the holder and the number of Warrants exercised by such holder.
Warrants will be deemed to have been exercised upon receipt of the Warrant
Price, subject to receipt within five business days thereafter of the Warrant
Certificate properly completed and duly executed at the corporate trust office
of the Warrant Agent. If the Warrant Agent receives moneys in payment of the
purchase price for Warrants, the Warrant Agent shall deposit all funds received
by it in the account of the Company maintained with it for such purpose. If the
Warrant Agent receives consideration other than moneys for Warrants, the Warrant
Agent shall deliver such consideration directly to the Company. In either case,
the Warrant Agent shall advise the Company by telex or telecopy at the end of
each day as to the Warrant Certificates that have been exercised and the amount
of moneys deposited to its account or the type and amount of other consideration
to be delivered to it.
(b) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Debt Securities to
which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise and (iv) such other information as the Company or the Trustee
shall reasonably require.
(c) A Warrant Certificate may be exercised in part to purchase Debt
Securities only in the denominations authorized pursuant to the indenture under
which the Debt Securities are issued (the "Indenture").
(d) As soon as practicable after receipt of payment of the Warrant
Price and the Warrant Certificate properly completed and duly executed at the
corporate trust office of the Warrant Agent, the Company shall issue, pursuant
to the indenture, to or upon the order of the holder of such Warrant
Certificate, the Debt
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Securities in authorized denominations to which such holder is entitled, in
fully registered form in such name or names as may be directed by such holder,
and if such Warrant Certificate was not exercised in full, upon request of the
holder a new Warrant Certificate evidencing the number of Warrants remaining
unexercised shall be issued if sufficient time remains prior to the Expiration
Date.
(e) The Company will pay all documentary stamp taxes attributable to
the initial issuance of Warrants and of Debt Securities upon the exercise of
Warrants; provided, however, that the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer involved in the
issue of any Warrant Certificates or any certificates for Debt Securities in a
name other than the registered holder of a Warrant Certificate surrendered upon
the exercise of a Warrant, and the Company shall not be required to issue or
deliver such certificates unless or until the person or persons requesting the
issuance 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 7. No Rights as Securityholders Conferred by Warrant
Certificates. No Warrant Certificate shall entitle the holder thereof to any of
the rights of a holder of Debt Securities, including the right to receive the
payment of principal of, or interest on, the Debt Securities or to enforce any
of the covenants of the Debt Securities or the Indenture except as otherwise
provided in the Indenture.
SECTION 8. Lost, Stolen, Mutilated or Destroyed Warrant
Certificates. Upon receipt by the Company and the Warrant Agent of evidence
reasonably satisfactory to them of the ownership and the loss, theft,
destruction or mutilation of the Warrant Certificate, and of indemnity
reasonably satisfactory to them, and, in the case of mutilation, upon surrender
thereof to the Warrant Agent for cancellation, then, in the absence of notice to
the Company or the Warrant Agent that such Warrant Certificate has been acquired
by a bona fide purchaser, the Company shall execute, and an authorized officer
of the Warrant Agent shall manually countersign and deliver, in exchange for or
in lieu of the lost, stolen, destroyed or mutilated Warrant Certificate, a new
Warrant Certificate of the same tenor and for a like number of Warrants. Upon
the issuance of any new Warrant Certificate 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 expense (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant
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Certificate executed and delivered pursuant to this Section in lieu of any lost,
stolen or destroyed Warrant Certificate shall constitute an additional
contractual obligation of the Company, whether or not the lost, stolen or
destroyed Warrant Certificate shall be at any time enforceable by anyone, and
shall be entitled to the benefits of this Agreement equally and proportionately
with any and all other Warrant Certificates duly executed and delivered
hereunder. The provisions of this Section are exclusive and shall preclude (to
the extent lawful) any and all other rights or remedies with respect to the
replacement of mutilated, lost, stolen or destroyed Warrant Certificates.
SECTION 9. Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any holder of any
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the
holder of any Debt Security or the holder of any other Warrant Certificate, may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any audit, action or proceeding against the Company to enforce or
otherwise in respect of, his right to exercise his Warrant Certificate in the
manner provided in his Warrant Certificate and in his Agreement.
SECTION 10. Call of Warrants by the Company. If so provided in the
Warrant Agreement, the Company shall have the right to call and repurchase any
or all Warrants at the price (the "Call Price") and on or after the date (the
"Call Date") and upon the terms (the "Call Terms") as shall be established from
time to time in or pursuant to resolutions of the Board of Directors of the
Company or in the Warrant Agreement before the issuance of such Warrants.
Notice of such Call Price, Call Date and Call Terms shall be given to registered
holders of Warrants in writing by the Company or the Warrant Agent.
SECTION 11. Optional Reduction of Warrant Price. Subject to the
limits, if any, established from time to time by the Board of Directors of the
Company or in the Warrant Agreement, the Company shall have the right, at any
time or from time to time, voluntarily to reduce the then current Warrant Price
to such amount (the "Reduced Warrant Price") and for such period or periods of
time, which may be through the close of business on the Expiration Date (the
"Reduced Warrant Price Period"), as may be deemed appropriate by the Board of
directors of the Company. Notice of any such Reduced Warrant Price and Reduced
Warrant Price Period shall be given to registered holders of Warrants in writing
by the Company or the Warrant Agent. After the termination of the Reduced
Warrant Price Period, the Warrant Price shall be such Warrant Price that would
have been in effect had there been no reduction in the Warrant Price pursuant to
the provisions of this Section 11.
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SECTION 12. Exchange and Transfer. Upon surrender at the corporate
trust office of the Warrant Agent, Warrant Certificates evidencing Warrants may
be exchanged for Warrant Certificates in other denominations evidencing such
Warrants and the transfer of Warrants may be registered in whole or in part;
provided that such other Warrant Certificates shall evidence the same aggregate
number of Warrants as the Warrant Certificates surrendered for exchange or
registration of transfer. The Warrant Agent shall keep, at its corporate trust
office, books in which it shall register Warrant Certificates and exchanges and
transfers of outstanding Warrant Certificates, upon surrender of the Warrant
Certificates to the Warrant Agent at its corporate trust office for exchange or
registration of transfer, properly endorsed or accompanied by appropriate
instruments of registration of transfer and written instructions for transfer,
all in form satisfactory to the Company and the Warrant Agent. No service
charge shall be made for any exchange or registration of transfer of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such exchange or registration of transfer. Whenever any
Warrant Certificates are surrendered for exchange or registration of transfer,
an authorized officer of the Warrant Agent shall mutually countersign and
deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificate duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
registration of transfer that will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligations
of the Company, evidencing the same obligations and entitled to the same
benefits under this Agreement as the Warrant Certificates surrendered for such
exchange or registration of transfer.
SECTION 13. Treatment of Holders of Warrant Certificates. Every
holder of a Warrant Certificate, by accepting the same, consents and agrees with
the Company, the Warrant Agent and with every subsequent holder of such Warrant
Certificate that, until the transfer of the Warrant Certificate is registered on
the books of the Warrant Agent, the Company and the Warrant Agent may treat the
registered holder as the absolute owner thereof for any purpose and as the
person entitled to exercise the rights represented by the Warrants evidenced
thereby, any notice to the contrary notwithstanding.
SECTION 14. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exercise, registration of
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transfer or exchange shall, if surrendered to the Company, be delivered to the
Warrant Agent, and all Warrant Certificates surrendered or so delivered to the
Warrant Agent shall be promptly canceled by the Warrant Agent and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu thereof. The Warrant Agent shall
deliver to the Company from time to time, or otherwise dispose of, canceled
Warrant Certificates in a manner satisfactory to the Company.
SECTION 15. Warrant Agent. The Company hereby appoints the Warrant
Agent as the Warrant Agent of the Company in respect of the Warrant Certificates
upon the terms and subject to the conditions herein set forth, and the Warrant
Agent hereby accepts such appointment. The Warrant Agent shall have the powers
and authority granted to and conferred upon it in the Warrant Certificates and
by this Agreement, and such further powers and authority to act on behalf of the
Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
SECTION 16. Conditions of Warrant Agent's Obligations. The Warrant
Agent accepts its obligations herein set forth upon the terms and conditions
hereof, including the following (to all of which the Company agrees and to all
of which the rights hereunder of the holders from time to time of the Warrant
Certificates shall be subject):
(a) Performance by the Company. The Company agrees that it will take
any corporate action that may be reasonably necessary in order to fulfill its
obligations under this Agreement and the Warrant Certificates, and that it will
not take any action that would impair its ability to perform its obligations
under this Agreement and the Warrant Certificates.
(b) Compensation and Indemnification. The Company agrees promptly to
pay the Warrant Agent the compensation to be agreed upon with the Company for
all services rendered by the Warrant Agent and to reimburse the Warrant Agent
for reasonable out-of-pocket expenses (including reasonable counsel fees)
incurred by the Warrant Agent in connection with the services rendered hereunder
by the Warrant Agent. The Company also agrees to indemnify the Warrant Agent,
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as the Warrant Agent hereunder, as well as the
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costs and expenses of defending against any claim of liability in the premises.
(c) Agent for the Company. In acting under this Warrant Agreement and
in connection with the Warrant Certificates, the Warrant Agent is acting solely
as an agent of the Company, and the Warrant Agent does not assume any obligation
or relationship of agency or trust for or with any of the owners or holders of
the Warrant Certificates.
(d) Counsel. The Warrant Agent may consult with counsel satisfactory
to it, and the opinion of such 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 accordance with the opinion of such counsel.
(e) Documents. The Warrant Agent shall be protected and shall incur
no liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(f) Certain Transactions. The Warrant Agent and its officers,
directors and employees may act as Trustee under the Indenture and may become
the owner of, or acquire any interest in, any Warrant Certificates, with the
same rights that it or they would have if it were not the Warrant Agent
hereunder, and, to the extent permitted by applicable law, they may engage or be
interested in any financial or other transaction with the Company and may act
on, or as depositary, trustee or agent for, any committee or body of holders of
the Debt Securities or other obligations of the Company as freely as if it were
not the Warrant Agent.
(g) No Liability for Interest. Except as set forth in the Warrant
Agreement, the Warrant Agent shall not be under any liability for interest on
any moneys or other consideration at any time received by it pursuant to any of
the provisions of this Agreement or of the Warrant Certificates.
(h) No Liability for Invalidity. The Warrant Agent shall not incur
any liability with respect to the validity of this Agreement or any of the
Warrant Certificates.
(i) No Responsibility for Representations. The Warrant Agent shall
not be responsible for any of the recitals or representations contained herein
or in the Warrant Certificates (except the Warrant Agent shall be responsible
for any representations of the Warrant Agent herein and for its countersignature
on the Warrant Certificates), all of which are made solely by the Company.
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(j) No Implied Obligations. The Warrant Agent shall be obligated to
perform such duties as are herein and in the Warrant Certificates specifically
set forth, but no implied duties or obligations shall be read into this
Agreement or the Warrant Certificates against the Warrant Agent. The Warrant
Agent shall not be under any obligation to take any action hereunder which may
tend to involve it in any expense or liability, the payment of which within a
reasonable time is not, in its reasonable opinion, assured to it. The Warrant
Agent shall not be accountable or under any duty or responsibility for the use
by the Company of any of the Warrant Certificates authenticated by the Warrant
Agent and delivered by it to the Company pursuant to this Agreement or for the
application by the Company of the proceeds of the Warrant Certificates. The
Warrant Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained in the
Warrant Certificates or in the case of the receipt of any written demand from a
holder of a Warrant Certificate with respect to such default, including any duty
or responsibility to initiate or attempt to initiate any proceedings at law or
otherwise or, except as provided in Section 19 hereof, to make any demand upon
the Company.
SECTION 17. Resignation and Appointment of Successor Warrant Agent.
(a) The Company agrees, for the benefit of the holders from time to
time of the Warrant Certificates, that at all times there shall be a Warrant
Agent hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than 60 days after the date on which such notice is given
unless the Company agrees to accept less notice. The Warrant Agent may be
removed at any time by the filing with it of an instrument in writing signed by
or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized and doing business under
the laws of the United States of America or of any State, in good standing, and
authorized under such laws to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. Upon its
resignation or removal, the Warrant Agent shall be entitled to the payment by
the Company of the compensation agreed to under Section 16(b) hereof for, and
to the reimbursement of all reasonable out-of-pocket expenses incurred in
connection with, the services rendered hereunder by the Warrant Agent.
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(c) If at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall file a petition seeking relief under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the Federal Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law or if any
public officer shall have taken charge or control of the Warrant Agent or of its
property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified in accordance with the terms
of this Agreement, shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment of a
successor Warrant Agent and acceptance by the latter of such appointment, the
Warrant Agent so superseded shall cease to be the Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all moneys,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation to
which the Warrant Agent shall sell or otherwise transfer all or substantially
all the assets and business of the Warrant Agent, provided that it shall be
qualified as aforesaid, shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
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SECTION 18. Amendment. This Agreement may be amended by the parties
hereto, without the consent of the holder of any Warrant Certificate, for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein, or in regard to matters or questions
arising under this Agreement as the Company and the Warrant Agent may deem
necessary or desirable, provided such action shall not adversely affect the
interests of the holders of the Warrant Certificates.
SECTION 19. Notices and Demands to the Company and Warrant Agent. If
the Warrant Agent the any notice or demand addressed to the Company by the
holder of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
SECTION 20. Addresses. Any communication to the Warrant Agent with
respect to this Agreement shall be addressed to the address set forth in the
Warrant Agreement, and any such communication to the Company shall be addressed
to the Company at the following address:
FMC Corporation
200 East Randolph Drive
Chicago, IL 60601
Attention: Corporate Secretary
or such other address as shall be specified in writing by the Warrant Agent or
by the Company.
SECTION 21. Delivery of Prospectus. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver to
such holder, prior to or concurrently with the delivery of the Debt Securities
issued upon such exercise, a copy of the prospectus.
SECTION 22. Obtaining of Governmental Approvals. The Company will
from time to time take all action that may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under federal and state laws, which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, and the
issuance, sale, transfer and delivery of the Debt
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Securities issued upon exercise of the Warrants or upon the expiration of the
period during which the Warrants are exercisable.
SECTION 23. Persons Having Rights Under Warrant Agreement. Nothing in
this Agreement is intended, or shall be construed, to confer upon, or give to,
any person or corporation other than the Company, the Warrant Agent and the
holders of the Warrant Certificates any right, remedy or claim under or by
reason of this Agreement or of any covenant, condition, stipulation, promise or
agreement hereof. All covenants, conditions, stipulations, promises and
agreements contained in this Agreement shall be for the sole and exclusive
benefit of the Company, the Warrant Agent and their successors and of the
holders of the Warrant Certificates.
SECTION 24. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 25. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 26. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
SECTION 27. Governing Law. This Agreement and each Warrant
Certificate issued hereunder 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 such State.
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Exhibit 5.1
Winston & Strawn
35 West Wacker Drive
Chicago, Illinois 60601
September 7, 1995
FMC Corporation
200 East Randolph Drive
Chicago, Illinois 60601
Ladies and Gentlemen:
We have acted as special counsel to FMC Corporation, a Delaware
corporation (the "Company"), in connection with the preparation of the
Registration Statement on Form S-3 (the "Registration Statement") to be filed
with the Securities and Exchange Commission (the "Commission"). The
Registration Statement relates to the issuance and sale from time to time,
pursuant to Rule 415 of the General Rules and Regulations promulgated under the
Securities Act of 1933, as amended (the "Act"), of the following securities with
an aggregate initial offering price of up to $500,000,000 (or the equivalent
thereof, based on the applicable exchange rate at the time of sale, in one or
more foreign currencies, currency units or composite currencies as shall be
designated by the Company): (i) shares of the Company's Common Stock, $.10 par
value per share ("Common Stock"); (ii) whole or fractional shares of the
Company's Preferred Stock, no par value (collectively, "Preferred Stock"); (iii)
Preferred Stock represented by depository shares ("Depository Shares"); (iv) the
Company's debt securities (the "Debt Securities"), which may be issued under the
Senior Debt Indenture, between the Company and Harris Trust and Savings Bank, as
trustee (the "Senior Indenture"), or the Subordinated Debt Indenture, between
the Company and Harris Trust and Savings Bank, as trustee (the "Subordinated
Indenture" and, together with the Senior Indenture, the "Indentures"); (v)
warrants to purchase Common Stock (the "Common Stock Warrants"); (vi) warrants
to purchase Preferred Stock ("Preferred Stock Warrants"); and (vii) warrants to
purchase Debt Securities ("Debt Warrants" and collectively with the Common Stock
Warrants and the Preferred Stock Warrants, the "Warrants"). The Common Stock,
Preferred Stock, Depository Shares, Debt Securities and the Warrants are
collectively referred to herein as the "Offered Securities." We do not express
any opinion herein as to the issuance of Debt Securities under any indenture
other than the
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FMC Corporation
September 7, 1995
Page 2
Indentures. Pursuant to Rule 429 under the Act, the prospectus included in the
Registration Statement also relates to $50,000,000 aggregate principal amount of
Debt Securities registered under Registration Statement No. 33-45648 (the "Prior
Registration Statement"). This opinion is furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of: (i) the Registration
Statement filed with the Commission on September 7, 1995 under the Act; (ii) the
Prior Registration Statement; (iii) the form of each of the Indentures proposed
to be entered into by the Company and the trustees thereunder; (iv) the form of
underwriting agreement (the "Debt Underwriting Agreement") proposed to be
entered into by the Company and one or more underwriters to be named therein in
connection with any firm commitment underwritten offering of Debt Securities or
Warrants; (v) the form of underwriting agreement (the "Equity Underwriting
Agreement" and, together with the Debt Underwriting Agreement, the "Underwriting
Agreements") proposed to be entered into by the Company and one or more
underwriters in connection with any firm commitment underwritten offering of
Common Stock, Preferred Stock, Depository Shares or Warrants; (vi) the
Certificate of Incorporation of the Company as in effect on the date hereof;
(vii) the By-laws of the Company as in effect on the date hereof; and (viii)
resolutions adopted by the Board of Directors of the Company authorizing each of
the form of the Indentures, the form of Underwriting Agreements, the issuance
and sale of the Offered Securities and the proper officers and committee of the
Board of Directors of the Company designated to determine the final form and
terms of the Offered Securities (the "Board Resolutions"). We have also
examined originals or copies, certified or otherwise identified to our
satisfaction, of such records of the Company and such agreements, certificates
of public officials, certificates of officers or other representatives of the
Company and others, and such other documents, certificates and records as we
have deemed necessary or appropriate as a basis for the opinions set forth
herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than the
Company, we have assumed that such parties have the
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FMC Corporation
September 7, 1995
Page 3
power, corporate or other, to enter into and perform all obligations thereunder
and have also assumed the due authorization by all requisite action, corporate
or other, and execution and delivery by such parties of such documents and the
validity and binding effect thereof. As to any facts material to the opinions
expressed herein that were not independently established or verified, we have
relied upon statements and representations of officers and other representatives
of the Company and others.
Members of our firm are admitted to the bar in the States of Illinois
and New York, and we do not express any opinion as to the laws of any other
jurisdiction other than the General Corporation Law of the State of Delaware.
The Offered Securities may be issued from time to time on a delayed or
continuous basis, and this opinion is limited to the laws, including the rules
and regulations, as in effect on the date hereof.
Based upon and subject to the foregoing, we are of the opinion that:
1. When (i) the Registration Statement shall have become effective
under the Act, (ii) the Blue Sky or securities laws of certain states shall have
been complied with, (iii) if the Debt Securities are to be sold pursuant to a
firm commitment underwritten offering, the Debt Underwriting Agreement with
respect to the Debt Securities has been duly authorized, executed and delivered
by the Company and the other parties thereto, (iv) the Indenture relating to the
Debt Securities shall have been executed and delivered by the Company and the
Trustee and duly qualified under the Trust Indenture Act of 1939, as amended,
(v) the terms of the Debt Securities and of their issuance shall have been duly
established as contemplated by the Board Resolutions in conformity with the
Indenture relating to the Debt Securities so as not to violate any applicable
law or the Certificate of Incorporation or By-laws of the Company or result in
default under or breach of any agreement or instrument binding upon the Company
and so as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, and (vi) the Debt
Securities shall have been (A) duly authorized, executed, authenticated and
delivered against payment therefor in accordance with the related Indenture and
Debt Underwriting Agreement, if any, or any other applicable duly authorized,
executed and delivered purchase agreement or (B) issued upon conversion or
exchange of Debt Securities or Preferred Stock which, by their respective terms,
are convertible into or exchangeable for Debt Securities or upon exercise of
Debt Warrants, and the Company shall have received any additional consideration
which is payable upon such conversion,
<PAGE>
FMC Corporation
September 7, 1995
Page 4
exchange or exercise, the Debt Securities shall constitute binding obligations
of the Company enforceable in accordance with their terms, except as
enforceability may be limited by (a) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or hereafter in
effect relating to or affecting creditors' rights generally and (b) general
principles of equity (regardless of whether enforcement is considered in a
proceeding of law or in equity), and except that enforcement thereof may also be
limited by (x) requirements that a claim with respect to any Debt Securities
denominated other than in United States dollars (or a foreign currency or
foreign currency unit judgment in respect of such claim) be converted into
United States dollars at a rate of exchange prevailing on a date determined
pursuant to applicable law or (y) governmental authority to limit, delay or
prohibit the making of payments in foreign currency or currency units or payment
outside the United States.
2. When (i) the Registration Statement shall have become effective
under the Act, (ii) the Blue Sky or securities laws of certain states shall have
been complied with, (iii) if the Preferred Stock is to be sold pursuant to a
firm commitment underwritten offering, the Equity Underwriting Agreement with
respect to such Preferred Stock has been duly authorized, executed and delivered
by the Company and the other parties thereto, (iv) the Board of Directors,
including any appropriate committee appointed thereby, and appropriate officers
of the Company have taken all necessary corporate action to approve the issuance
and terms of the shares of the Preferred Stock and related matters, including
the adoption of a Certificate of Designation for the Preferred Stock, (v) the
filing of the applicable Certificate of Designation with the Secretary of State
of the State of Delaware has duly occurred, (vi) the terms of the Preferred
Stock and of their issuance and sale have been duly established in conformity
with the Company's Certificate of Incorporation, including the Certificate of
Designation relating to the Preferred Stock, and the By-laws of the Company so
as not to violate any applicable law or the Certificate of Incorporation or By-
laws of the Company or result in a default under or breach of any agreement or
instrument binding upon the Company and so as to comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company, (vii) certificates representing the shares of the Preferred Sock
are duly executed, countersigned, registered and delivered upon payment of the
agreed-upon consideration therefor, and (viii) the Preferred Stock shall have
been (A) authorized, issued and sold in accordance with the related Equity
Underwriting Agreement or any other applicable duly authorized, executed and
delivered purchase agreement and the
<PAGE>
FMC Corporation
September 7, 1995
Page 5
Company shall have received consideration therefor or (B) issued upon conversion
or exchange of Debt Securities or Preferred Stock which, by their respective
terms, are convertible into or exchangeable for shares of Preferred Stock or
upon exercise of Preferred Stock Warrants and the Company shall have received
any additional consideration which is payable upon such conversion, exchange or
exercise, the Preferred Stock will be validly issued, fully paid and
nonassessable.
3. When (i) the Registration Statement shall have become effective,
(ii) the Blue Sky or securities laws of certain states shall have been complied
with, (iii) if the Depository Shares are to be sold pursuant to a firm
commitment underwritten offering, the Equity Underwriting Agreement with respect
to the Depository Shares has been duly authorized, executed and delivered by the
Company and the other parties thereto, (iv) the Board of Directors, including
any appropriate committee appointed thereby, and appropriate officers of the
Company have taken all necessary corporate action to approve the issuance and
terms of the Depository Shares and related matters, including the adoption of
the Certificate of Designation for the related Preferred Stock, (v) the filing
of the applicable Certificate of Designation with the Secretary of State of the
State of Delaware has duly occurred, (vi) a deposit agreement relating to the
Depository Shares (the "Depository Agreement") in the form to be filed as an
exhibit to the Registration Statement, any amendment thereto or any document
incorporated by reference therein as contemplated by the Board Resolution has
been duly executed and delivered by the Company and a depository, (vii) the
terms of the Depository Shares and of their issuance and sale have been duly
established in conformity with the Deposit Agreement so as not to violate any
applicable law or the Certificate of Incorporation or By-laws of the Company or
result in a default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by
any court or governmental body having jurisdiction over the Company, (viii) the
related Preferred Stock which is represented by the Depository Shares has been
duly authorized, validly issued and delivered to the applicable depository for
deposit in accordance with the laws of the State of Delaware and any other
applicable jurisdiction, and (ix) the receipts evidencing the Depository Shares
(the "Receipts") are duly issued against the deposit of the Preferred Stock in
accordance with the Deposit Agreement, such Receipts will be validly issued and
will entitle the holders thereof to the rights specified therein and in the
Deposit Agreement.
<PAGE>
FMC Corporation
September 7, 1995
Page 6
4. When (i) the Registration Statement shall have become effective
under the Act, (ii) the Blue Sky or securities laws of certain states shall have
been complied with, (iii) if the Common Stock is to be sold pursuant to a firm
commitment underwritten offering, the Equity Underwriting Agreement with respect
to such Common Stock has been duly authorized, executed and delivered by the
Company and the other parties thereto, (iv) certificates representing the shares
of the Common Stock are duly executed, countersigned, registered and delivered
upon payment of the agreed upon consideration therefor, (v) the Board of
Directors of the Company, including any appropriate committee appointed thereby,
and appropriate officers of the Company have taken all necessary corporate
action to approve the issuance of the Common Stock and related matters, (vi) the
terms of the issuance of the Common Stock have been duly established as
contemplated by the Board Resolutions in conformity with the Company's
Certificate of Incorporation and By-laws so as not to violate any applicable law
or the Certificate of Incorporation or By-laws of the Company or results in a
default under or breach of any agreement or instrument binding upon the Company
and so as to comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, and (vii) the Common
Stock shall have been (A) authorized, issued and sold in accordance with the
related Equity Underwriting Agreement or any other applicable duly authorized,
executed and delivered purchase agreement and the Company shall have received
consideration therefor, provided that the amount of such consideration shall not
be less than the par value thereof, or (B) issued upon conversion or exchange of
Debt Securities or Preferred Stock which, by their respective terms, are
convertible into or exchangeable for shares of Common Stock or upon exercise of
Common Stock Warrants, and the Company shall have received any additional
consideration which is payable upon such conversion or exchange, the Common
Stock shall be validly issued, fully paid and nonassessable.
5. When (i) the Registration Statement has become effective under the
Act, (ii) the Blue Sky or securities laws of certain states shall have been
complied with, (iii) if the Warrants are to be sold pursuant to a firm
commitment underwritten offering, the Underwriting Agreement with respect to
such Warrants has been duly authorized, executed and delivered by the Company
and the other parties thereto, (iv) the warrant agreement relating to the
Warrants (the "Warrant Agreement") in the form to be filed as an exhibit to the
Registration Statement, any amendment thereto or any document incorporated by
reference therein has been duly authorized, executed and delivered by the
Company and the other
<PAGE>
FMC Corporation
September 7, 1995
Page 7
parties thereto, (v) the terms of the Warrants and of their issuance and sale
have been duly established in conformity with the Warrant Agreement relating to
such Warrants so as not to violate any applicable law, the Certificate of
Incorporation or By-laws of the Company or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental body having
jurisdiction over the Company, and (vi) the Warrants have been duly executed,
delivered and countersigned, in accordance with the Warrant Agreement relating
to such Warrants, and duly issued and sold in the applicable form to be filed as
an exhibit to the Registration Statement or any amendment thereto and in the
manner contemplated by the related Underwriting Agreement or any other duly
authorized executed and delivered purchase agreement and the Company shall have
received consideration therefor, any such Warrants will constitute valid and
binding obligations of the Company enforceable against the Company in accordance
with their terms, except to the extent that enforcement thereof may be limited
by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and (b) general principles of equity (regardless of
whether enforcement is considered in a proceeding of law or in equity).
To the extent that the obligations of the Company under a Deposit
Agreement relating to the Depository Shares or under an Indenture may be
dependent upon such matters, we have assumed for purposes of this opinion (i)
that the applicable depository or trustee, as the case may be, is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization and is duly qualified to engage in the activities
contemplated by the applicable Deposit Agreement or Indenture, as the case may
be, (ii) that such Deposit Agreement or Indenture, as the case may be, has been
duly authorized, executed and delivered by and constitutes the legal, valid and
binding obligation of such depository or trustee, as the case may be,
enforceable in accordance with its respective terms, (iii) that such depository
or trustee, as the case may be, is in compliance, generally and with respect to
acting as a depository or trustee, respectively, under the applicable Deposit
Agreement or Indenture, with all applicable laws and regulations, and (iv) that
such depository or trustee has the requisite organizational and legal power and
authority to perform its obligations under the applicable Deposit Agreement or
Indenture, as the case may be.
<PAGE>
FMC Corporation
September 7, 1995
Page 8
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. We also consent to the reference to
our firm under the caption "Legal Matters" in the Registration Statement. In
giving this consent, we do not thereby admit that we are included in the
category of persons whose consent is required under Section 7 of the Act or the
rules and regulations of the Commission.
Very truly yours,
Winston & Strawn
<PAGE>
FMC CORPORATION EXHIBIT 12.1
--------------- ------------
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
--------------------------------------------------
(Amounts in Millions)
<TABLE>
<CAPTION>
Six Months Ended
June 30, Years Ended December 31,
---------------- -----------------------------------------
1995 1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income from continuing operations
before income taxes and
extraordinary items $183.3 $166.8 $252.3 $ 37.8 $279.6 $255.9 $211.4
Minority interests 23.9 35.2 61.4 2.5 3.6 3.0 8.1
Undistributed (earnings) losses of
affiliates (0.7) 1.2 4.1 (0.4) (6.8) (3.1) (4.2)
Interest expense and amortization
of debt discount, fees and
expenses 41.8 33.1 68.0 73.6 94.9 124.7 150.6
Amortization of capitalized interest 4.0 3.8 7.8 7.6 7.6 7.4 7.0
Interest included in rental expense 10.8 10.7 21.4 20.0 19.9 18.1 14.2
------ ------ ------ ------ ------ ------ ------
Total earnings $263.1 $250.8 $415.0 $141.1 $398.8 $406.0 $387.1
------ ------ ------ ------ ------ ------ ------
Fixed charges:
Interest expense and amortization
of debt discount, fees and
expenses $ 41.8 $ 33.1 $ 68.0 $ 73.6 $ 94.9 $124.7 $150.6
Interest capitalized as part of
fixed assets 5.4 1.5 4.6 0.7 2.1 3.5 6.2
Interest included in rental expense 10.8 10.7 21.4 20.0 19.9 18.1 14.2
------ ------ ------ ------ ------ ------ ------
Total fixed charges $ 58.0 $ 45.3 $ 94.0 $ 94.3 $116.9 $146.3 $171.0
------ ------ ------ ------ ------ ------ ------
Ratio of earnings to fixed charges 4.5x 5.5x 4.4x 1.5x 3.4x 2.8x 2.3x
====== ====== ====== ====== ====== ====== ======
(A)
</TABLE>
(A) - The ratio of earnings to fixed charges for the year ended December 31,
1993 before restructuring and other charges was 3.3x.
<PAGE>
[LOGO OF KPMG PEAT MARWICK LLP]
Exhibit 15.1
FMC Corporation
Chicago, Illinois
Ladies and Gentlemen:
RE: REGISTRATION STATEMENT ON FORM S-3
With respect to the registration statement on Form S-3 to be filed by FMC
Corporation on September 7, 1995, we acknowledge our awareness of the use
therein of our reports dated April 20, 1995 and July 27, 1995 related to our
reviews of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such reports are not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the meaning
of sections 7 and 11 of the Act.
Very truly yours,
KPMG Peat Marwick LLP
Chicago, Illinois
September 5, 1995
<PAGE>
Exhibit 15.2
September 6, 1995
Partners
United Defense, L.P.
We are aware of the incorporation by reference in the Registration Statement on
Form S-3 of FMC Corporation to be filed with the Securities and Exchange
Commission on or about September 7, 1995 of our reports dated April 13, 1995 and
July 20, 1995 relating to the unaudited interim financial statements of United
Defense, L.P. which are included in FMC Corporation's Forms 10-Q for the
quarters ended March 31, 1995 and June 30, 1995.
Pursuant to Rule 436(c) of the Securities Act of 1933, our reports are not a
part of the registration statement prepared or certified by accountants within
the meaning of Section 7 or 11 of the Securities Act of 1933.
ERNST & YOUNG LLP
Washington, D.C.
<PAGE>
[LOGO OF KPMG PEAT MARWICK LLP]
Exhibit 23.1
The Board of Directors
FMC Corporation
We consent to the use of our audit report dated January 23, 1995 on the
consolidated financial statements of FMC Corporation and consolidated
subsidiaries as of December 31, 1994 and 1993 and for each of the years in the
three-year period then ended incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
KPMG Peat Marwick LLP
Chicago, Illinois
September 5, 1995
<PAGE>
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3 and related Prospectus of FMC Corporation to
be filed with the Securities and Exchange Commission on or about September 7,
1995 and to the incorporation by reference therein of our report dated
January 23, 1995, with respect to the financial statements of United Defense,
L.P. included in FMC Corporation's Annual Report (Form 10-K) for the year ended
December 31, 1994, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Washington, D.C.
September 6, 1995
<PAGE>
Exhibit 24.1
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ W.W. Boeschenstein
__________________________
W.W. Boeschenstein
<PAGE>
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ L.D. Brady
__________________________
L.D. Brady
<PAGE>
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ B.A. Bridgewater, Jr.
__________________________
B.A. Bridgewater, Jr.
<PAGE>
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ Robert N. Burt
__________________________
Robert N. Burt
<PAGE>
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ A.J. Costello
__________________________
A.J. Costello
<PAGE>
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ Paul L. Davies, Jr.
__________________________
Paul L. Davies, Jr.
<PAGE>
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ Jean A. Francois-Poncet
______________________________
Jean A. Francois-Poncet
<PAGE>
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ Robert H. Malott
__________________________
Robert H. Malott
<PAGE>
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ E.C. Meyer
__________________________
E.C. Meyer
<PAGE>
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ William F. Reilly
__________________________
William F. Reilly
<PAGE>
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ James R. Thompson
__________________________
James R. Thompson
<PAGE>
[FMC LETTERHEAD]
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, FMC CORPORATION, a Delaware corporation (hereinafter referred
to as the "Company"), proposes to file with the Securities and Exchange
Commission a Registration Statement on Form S-3 and amendments thereto under the
Securities Act of 1933, as amended;
and
WHEREAS, the undersigned holds and may hereafter from time to time
hold one or more positions in the Corporation whether as an Officer, a Director,
or both, such that the undersigned may be required or permitted in such capacity
or capacities, or on behalf of the Corporation, to sign one or more of such
documents;
NOW, THEREFORE, the undersigned hereby constitutes and appoints R.N.
Burt, M.J. Callahan, P.J. Head and R.L. Day, and each of them, his true and
lawful attorneys-in-fact and agents, with full power to act for him and in his
name, place and stead, and in each of his offices and capacities in the Company
as may now or hereafter exist, to sign and file said Registration Statement and
any and all amendments, schedules and exhibits thereto, and any and all other
documents in connection therewith, with the Securities and Exchange Commission,
hereby giving and granting to said attorneys full power and authority to do and
perform all and every act and thing whatsoever requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he might
or could do if personally present at the doing thereof, hereby ratifying and
confirming all that said attorneys may or shall lawfully do, or cause to be
done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this
31st day of August, 1995.
/s/ Clayton Yeutter
__________________________
Clayton Yeutter
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
Statement of Eligibility
Under the Trust Indenture Act of 1939
of a Corporation Designated to Act as
Trustee
Check if an Application to Determine
Eligibility of a Trustee Pursuant to Section
305(b)(2) _______________
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Daniel G. Donovan, Harris Trust and Savings Bank,
111 West Monroe Street, Chicago, Illinois, 60603
312-461-2908
(Name, address and telephone number for agent for service)
FMC Corporation
(Name of obligor)
Delaware 94-0479804
(State of Incorporation) (I.R.S. Employer Identification No.)
200 East Randolph Drive
Chicago, Illinois 60601
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
<PAGE>
1. GENERAL INFORMATION. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164
West Jackson Boulevard, Chicago, Illinois; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of Governors of
the Federal Reserve System,Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in effect
which includes the authority of the trustee to commence business and to
exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in effect
and includes the authority of the Trustee to commence business and to
exercise corporate trust powers was filed in connection with the
Registration Statement of Louisville Gas and Electric Company, File No.
2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
(included as Exhibit C on page 6 of this statement)
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago, and State of Illinois, on the 30th day of August, 1995.
HARRIS TRUST AND SAVINGS BANK
/s/ D. G. Donovan
By: _________________________
D. G. Donovan
Assistant Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
/s/ D. G. Donovan
By: _________________________
D. G. Donovan
Assistant Vice President
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of March 31, 1995, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[LOGO] HARRIS BANK
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on March 31, 1995, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve System.
Published in accordance with a call made by the Commissioner of Banks and Trust
Companies of the State of Illinois and by the Federal Reserve Bank of this
District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository
institutions:
Non-interest bearing balances
and currency and coin.......... $ 1,005,442
Interest bearing balances....... $ 625,600
Securities:.............................
a. Held-to-maturity securities $ 679,653
b. Available-for-sale securities $ 1,399,848
Federal funds sold and securities
purchased under agreements to resell in
domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in
IBF's:
Federal funds sold.............. $ 334,413
Securities purchased under
agreements to resell........... $ 216,275
Loans and lease financing receivables:
Loans and leases, net of
unearned income................ $ 6,510,418
LESS: Allowance for loan and
lease losses................... $ 92,572
-----------
Loans and leases, net of
unearned income, allowance,
and reserve
(item 4.a minus 4.b)............ $ 6,417,846
Assets held in trading accounts......... $ 414,465
Premises and fixed assets (including
capitalized leases).................... $ 137,331
Other real estate owned................. $ 2,087
Investments in unconsolidated
subsidiaries and associated companies.. $ 190
Customer's liability to this bank on
acceptances outstanding................ $ 108,888
Intangible assets....................... $ 23,281
Other assets............................ $ 324,142
-------------------------
TOTAL ASSETS $11,689,461
=========================
LIABILITIES
Deposits:
In domestic offices................... $ 4,130,806
Non-interest bearing.................. $ 2,349,310
Interest bearing...................... $ 1,781,496
In foreign offices, Edge and
Agreement subsidiaries, and IBF's.... $ 2,666,956
Non-interest bearing.................. $ 64,487
Interest bearing...................... $ 2,602,469
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Federal funds purchased and securities
sold under agreements to repurchase in
domestic offices of the bank and of
its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds purchased............... $ 754,641
Securities sold under agreements to
repurchase........................... $ 1,544,138
Trading Liabilities
Other borrowed money:................... $ 457,361
a. With original maturity of one year
or less $ 850,855
b. With original maturity of more than
one year $ 14,177
Bank's liability on acceptances
executed and outstanding $ 108,888
Subordinated notes and debentures....... $ 235,000
Other liabilities....................... $ 167,882
-----------
TOTAL LIABILITIES $10,930,704
===========
EQUITY CAPITAL
Common stock............................ $ 100,000
Surplus................................. $ 275,000
a. Undivided profits and capital
reserves............................ $ 389,937
b. Net unrealized holding gains
(losses) on available-for-sale
securities $ (6,180)
-----------
TOTAL EQUITY CAPITAL $ 758,757
===========
Total liabilities, limited-life
preferred stock, and equity capital.... $11,689,461
===========
</TABLE>
I, Steve Neudecker, Vice President of the above-named bank, do hereby declare
that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
STEVE NEUDECKER
4/30/95
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
ALAN G. McNALLY,
DONALD S. HUNT,
JAMES J. GLASSER,
Directors.
4
<PAGE>
HARRIS TRUST AND
SAVINGS BANK
BYLAWS
JULY, 1995
HARRIS
[LOGO] BANK
<PAGE>
ARTICLE I: MEETINGS OF STOCKHOLDERS
------------------------------------
SECTION 1. TIME AND NOTICE. The annual meeting of stockholders shall be held
on the third Wednesday of April as soon as practicable after the adjournment of
the annual meeting of the stockholders of Harris Bankcorp, Inc. for the election
of directors and for such other business as may properly come before the
meeting.
Notice of the place, day and time of the annual meeting shall be given by
mailing not less than ten nor more than forty days previous to such meeting, a
notice addressed to each stockholder entitled to vote, at his address as the
same shall appear on the stock books of the Bank.
SECTION 2. SPECIAL MEETINGS. Special meetings of stockholders may be called at
any time by the Board of Directors or by the Chairman of the Board, a Vice Chair
of the Board or the President or by a majority of the directors without a
meeting. It shall be the duty of the Chairman of the Board to call such
meetings whenever requested in writing so to do by stockholders owning a
majority of the capital stock. Notice of such special meetings stating the
purpose thereof shall be given in the same manner as for the annual meeting,
unless the purpose of the meeting is to change the Bank's charter, in which
event such notice shall be given within the time and published as provided for
in the following Section 3.
SECTION 3. CHARTER AMENDMENT. If any special meeting is called to effect a
change in the Bank's charter as provided for in Section 17 of the Illinois
Banking Act, the Board of Directors shall adopt a resolution setting forth the
proposed amendment and directing that it be submitted to vote at the special
meeting; and notice of the purpose, place, day and hour of the special meeting
shall be given by publication thereof at least once in each week for three
successive weeks immediately preceding the week during which the meeting is to
be held in a newspaper published in the city of Chicago and by mailing such
notice not less than thirty days previous to such meeting to each stockholder
entitled to vote at his address as the same shall appear on the stock books of
the Bank.
SECTION 4. LOCATION. The Board of Directors may designate any place in the
State of Illinois as the place of meeting for any annual or special meeting.
SECTION 5. RECORD DATE. In lieu of closing the stock transfer books for the
purpose of determining stockholders entitled to notice of or to vote at any
meeting of stockholders, or stockholders entitled to receive payment of any
dividend, or in order to make a determination of stockholders for any other
proper purpose, the Board of Directors may fix in advance a date as the record
date for any such determination. In the absence of specific action by the Board
closing the stock transfer books or fixing a different record date for each
annual and each special meeting of the stockholders, the date on which notice of
such meeting is mailed shall be the record date for such determination of
stockholders entitled to vote.
SECTION 6. QUORUM. A majority of the outstanding shares of the capital stock
of the Bank, represented either by the holders thereof or by duly authenticated
proxies, shall constitute a quorum for the transaction of business at any
meeting of the stockholders, but in the absence of a quorum a meeting may be
adjourned from time to time without notice to the stockholders.
<PAGE>
ARTICLE II: DIRECTORS
----------------------
SECTION 1. POWERS. The business and affairs of the Bank shall be managed by
the Board of Directors. The Board of Directors may adopt such rules and
regulations for the conduct of its meetings and the management of the affairs of
the Bank as it may deem proper, not inconsistent with the laws of the United
States, of the State of Illinois, or these bylaws; and all officers and
employees shall strictly adhere to and be bound by such rules and regulations.
Directors need not be stockholders of the Bank or of any company which has
control over the Bank within the meaning of Section 2 of the Illinois Bank
Holding Company Act, as now or hereafter amended.
SECTION 2. COMMITTEES. The Board of Directors may, by resolution or
resolutions passed by majority of the whole Board, designate an Executive
Committee and such other committees as it may deem necessary, and from time to
time suspend or continue the powers and duties of any committee. The Chairman
of the Board, a Vice Chair of the Board, the President or the member or members
of any Board committee present at any duly called meeting and not disqualified
from voting, whether or not such member or members constitute a quorum, may
designate another member or other members of the Board of Directors to act at
such meeting, and any director or directors so designated shall have the same
powers, duties and compensation as regular members. The presence at the meeting
of any director or directors so designated shall be considered in determining
whether a quorum is present.
SECTION 3. VACANCIES. Vacancies in the Board of Directors may be filled for
the unexpired term at a special meeting of the stockholders called for that
purpose. Additionally, the Board of Directors pursuant to paragraph (5) of
Section 16 of the Illinois Banking Act, by the affirmative vote of a majority of
the Board of Directors at any regular or special meeting of the Board, may
during the interval between annual meetings of stockholders elect not more than
a total of three persons as directors to fill vacancies arising during such
interval.
SECTION 4. MEETINGS. Regular meetings of the Board of Directors shall be held
on the third Wednesday of each month at 11:00 o'clock a.m. (except for the
meeting in January, April, July and October which shall be held at 9:30 o'clock
a.m.) unless such day be a legal holiday, in which case the regular meeting
shall be held at the same hour on the next business day, or at such other time,
which may be a legal holiday, as the Board of Directors may determine. All such
regular meetings shall be held at the offices of the Bank, or such other place
as the Chairman of the Board, a Vice Chair of the Board or the President may at
any time designate, and in the event of such designation, notice of the
alternate meeting place shall be given by mailing the same to each director not
later than five business days preceding the date of the meeting, or by
telegraphing the same to him or delivering the same to him personally not later
than the day previous to such meeting, but save for any such notice of alternate
meeting place, such regular meetings shall be held without other notice than
this bylaw. Special meetings may be called by the Chairman of the Board, a Vice
Chair of the Board or the President or by or at a written request of any three
directors. Except to the extent the time or method of giving notice is
regulated by statute, notice of any such meeting shall be given by mailing the
same to each director not later than five business days preceding the date of
the meeting, or by telegraphing the same to him or by delivering the same to him
personally not later than the day previous to such meeting. Any director may
waive notice of any meeting by waiver signed either before or after such
meeting. Except as otherwise required by statute or these bylaws, neither
<PAGE>
the business to be transacted at nor the purpose of any meeting need be
specified in the notice or waiver.
SECTION 5. QUORUM. A majority of the authorized number of directors shall
constitute a quorum for the transaction of business at any meeting of the Board
of Directors, but less than a quorum shall have power to take a recess or
adjourn a meeting to another day or hour.
SECTION 6. SECRETARY OF THE BOARD. The Board of Directors may appoint a
Secretary of the Board other than the Secretary of the Bank as provided for in
Section 10 of Article III of the bylaws, who may nor may not be a member of the
Board and who shall keep the minutes of the meetings of the Board and perform
such other duties as the Board shall from time to time prescribe.
ARTICLE III: OFFICERS
----------------------
SECTION 1. NUMBER AND TENURE. The officers of the Bank shall be chosen by the
Board of Directors and may consist of a Chairman of the Board, one or more Vice
Chairs of the Board and a President, each of whom shall be a member of the
Board, and one of whom shall be designated the Chief Executive Officer, one or
more Senior Executive Vice Presidents, one or more Executive Vice Presidents,
and one or more Executives (of any whose titles may be accompanied by reference
to the area of their respective responsibilities), one or more Senior Vice
Presidents, Vice President, Assistant Vice Presidents, a Secretary, one or more
Assistant Secretaries, a Cashier, a Controller, an Auditor, one or more Trust
Counsel, and such other officers as the Chief Executive Officer may from time to
time designate. Officer directors shall be elected by the Board. Executives
who are not also directors shall be elected by the Directors Committee on
Compensation. All other officers shall be appointed by the Chief Executive
Officer. Officers, whether elected or appointed, shall hold their respective
offices until the next succeeding annual meeting of stockholders and their
successors are elected and qualified, or until their retirement, resignation,
removal or appointment to another office. Any officer may be removed by the
Chief Executive Officer or the Board at any time with or without cause.
SECTION 2. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall exercise
general control and supervision of the business and affairs of the Bank, shall
see to it that all resolutions and orders of the Board of Directors are effected
and shall have such other powers and duties as the directors may specify. He
may appoint persons to hold office as Senior Vice President or below. During
any absence or disability to act of the Chief Executive Officer, his powers and
duties shall be exercised and performed by a Vice Chair of the Board, the
President, or by an officer designated by the Board of Directors for that
purpose. He shall be an ex-officio member of all Board committees.
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board shall preside at
all meetings of the Board of Directors and of the stockholders. He shall have
general responsibility for all Board matters, including without limitation, the
development of corporate governance policies and processes, committee
assignments, and meeting agendas. He shall have such other powers and duties as
the Board of Directors may specify. He shall be an ex-officio member of all
Board committees.
<PAGE>
SECTION 4. PRESIDENT. The President shall have such powers and duties as the
Board of Directors or the Chief Executive Officer may specify. During any
absence or disability to act of the President, his powers and duties shall be
performed and exercised by an officer designated in writing by the Chief
Executive, or in the absence of such designation, by an officer designated by
the Board of Directors for that purpose.
SECTION 5. CHIEF OPERATING OFFICER. The Chief Operating Officer shall manage
or supervise the management of the day-to-day operations of the Bank and shall
have such powers and duties as the Chief Executive Officer or the Board of
Directors may specify.
SECTION 6. VICE CHAIR OF THE BOARD. A Vice Chair of the Board shall have such
powers and duties as the Board of Directors may specify. During any absence or
disability to act of Chairman of the Board, a Vice Chair of the Board shall
preside at all meetings of the Board of Directors and of the stockholders and
have and exercise his powers and duties.
SECTION 7. SENIOR EXECUTIVE VICE PRESIDENT, EXECUTIVE VICE PRESIDENT,
EXECUTIVES, SENIOR VICE PRESIDENTS, VICE PRESIDENTS. Each Senior Executive Vice
President, Executive Vice President, Executive, Senior Vice President, and Vice
President shall have and perform such duties as the Chairman of the Board, a
Vice Chair of the Board or the President may delegate and is authorized to
accept trusts, execute contracts and agreements in relation to trusts and loans,
sign authentication's and certificates in connection with trusts and
certificates of stock, and sign or countersign checks, drafts, certificates of
deposit and letters of credit and all similar instruments or obligations issued
by the Bank.
SECTION 8. ASSISTANT VICE PRESIDENTS. Each Assistant Vice President is
authorized, subject to the supervision and direction of the President or a Vice
President, to accept trusts, execute contracts and agreements in relation to
trusts and to sign authentication's and certificates in connection with trusts
and certificates of stock; also to sign or countersign checks, drafts,
certificates of deposit and letters of credit and all similar instruments or
obligations issued by the Bank.
SECTION 9. CASHIER. The Cashier shall have charge and superintendence of the
operations of the Bank touching the deposit of money and commercial and savings
accounts, subject to the supervision and direction of the Chairman of the Board,
a Vice Chair of the Board, the President or a Vice President, and is authorized
to sign or countersign checks, drafts, certificates of deposit and letters of
credit and, as provided in Article V hereof, to sign certificates representing
stock of the Bank.
SECTION 10. SECRETARY. The Secretary shall act as secretary of the Board and
as secretary at meetings of the stockholders and, in general, shall have charge
of all records of the Bank relating to its organization and corporate action and
shall have power to certify the contents thereof.
SECTION 11. ASSISTANT SECRETARIES. Each Assistant Secretary is authorized,
subject to the supervision and direction of the President, a Vice President or
the Secretary, to accept trusts, execute contracts and agreements in relation to
trusts, to sign authentication's and certificates in connection with trusts and
certificates of stock, and to certify the contents of all records of the Bank,
<PAGE>
to the same extent as the Secretary; to sign or countersign checks, drafts,
certificates of deposit, letters of credit and, as provided in Article V hereof,
certificates representing the stock of the Bank.
SECTION 12. OTHER OFFICERS. All other officers shall perform such duties and
possess such powers as from time to time may be directed or delegated by the
Board of Directors, the Executive Committee, the Chairman of the Board, a Vice
Chair of the Board, the President or a Vice President.
SECTION 13. OTHER SIGNING AUTHORITY. In addition to the signing authorities
granted by or pursuant to the foregoing provisions of this Article III, the
Chairman of the Board, a Vice Chair of the Board, the President, any Senior
Executive Vice President, Executive Vice President, or Executive or any Senior
Vice President within the area of his assigned duties or responsibilities, may
designate from time to time in writing any officer or employee, either by name
or by title, to sign or execute any documents, instruments or contracts to which
the Bank is a party.
ARTICLE IV: SEAL
-----------------
The Board shall provide a Seal for the Bank, which shall be in the charge of the
Secretary or any other officer designated by him or by the President or the
Executive Committee, such Seal or a facsimile thereof to be affixed to or
otherwise reproduced on certificates of stock and any other documents in
accordance with the directions of the Board, the Executive Committee, the
President, any Vice President or the Secretary.
ARTICLE V: CAPITAL STOCK
-------------------------
SECTION 1. TRANSFER. Transfers of shares of stock of the Bank shall be made
upon the books of the Bank by the registered holder in person, or by attorney
duly authorized, on surrender of the certificate or certificates representing
such shares. The person in whose name shares of stock stand on the books of the
Bank shall be deemed to be the owner thereof for all purposes as regards the
Bank. All transfers of shares of stock in the Bank to a fiduciary, including an
executor, administrator, trustee, guardian, committee, conservator, curator,
tutor, custodian or nominee, and any transfer of shares of stock of the Bank
upon assignment by such fiduciary, shall be made by the Bank under, and the Bank
shall have the protections and rights with respect thereto provided for by, an
Act of the General Assembly of the State of Illinois entitled "An Act relating
to the transfer of securities to and by fiduciaries and to repeal a part of an
Act therein named", approved May 23, 1957.
SECTION 2. CERTIFICATES. All certificates representing stock of the Bank shall
be signed manually by the Chairman of the Board or the President or a Vice
President or the Cashier, and by the Secretary or an Assistant Secretary.
<PAGE>
ARTICLE VI: LOANS ON STOCK OF THIS BANK
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The Bank shall make no loans in whole or in part upon the stock of the Bank as
collateral.
ARTICLE VII: AUDITS
--------------------
SECTION 1. SCOPE. The scope of and the procedures or tests to be followed in
the auditing division in examining the books, assets, liabilities and affairs of
the Bank and reporting thereon to the Board of Directors, and the extent and
manner of coordinating such examination and report into or with any audit report
by certified public accountants, shall be such as may be from time to time
prescribed by the Board of Directors or by an Examining Committee appointed from
time to time by the Board of Directors and consisting of at least two directors
who are not officers of the Bank.
SECTION 2. REPORTS. The Auditor, or the officer designated by the Board as
responsible for the supervision of the auditing division, shall report under
seal to the Examining Committee appointed by the Board of Directors and, if none
is appointed, to the Board of Directors itself, on the audit program and
internal controls in each quarter of the year and shall appear at any time at
the request of the Board of Directors or the Executive Committee at any regular
or special meetings thereof and report on the results of examinations, the
soundness of condition of the Bank and any other pertinent information in
connection therewith. The Auditor, or officer designated by the Board as
responsible for the supervision of the auditing division, shall have continuing
responsibility to report promptly under seal to the Board of Directors or the
Executive Committee any material irregularities which in his opinion are of
sufficient importance to be brought to their attention before his next quarterly
report.
ARTICLE VIII: INDEMNIFICATION
------------------------------
SECTION 1. APPLICABILITY. Every person now or heretofore or hereafter serving
as a director, officer or employee of the Bank or of a wholly owned subsidiary
of the Bank, and every officer or employee of the Bank or of any such wholly
owned subsidiary now, heretofore or hereafter serving as director or officer of
one or more other corporations or organizations, or as trustee, executor,
administrator, guardian or conservator or in a similar fiduciary capacity, at
the request of the Bank as evidenced by action of the Executive Committee or the
Board designating the situation as one entitled to the benefit of this bylaw or
to the benefit of a similar indemnifying resolution of the Board, shall be
indemnified or reimbursed by the Bank from and for expenses, liabilities, fines,
penalties and costs that may be imposed upon or incurred by him, including by
way of settlement, in connection with any action, suit, or proceeding, civil or
criminal, in which he may be or become a party by reason of his being or having
been such director, officer, trustee, executor, administrator,
<PAGE>
guardian, conservator or other such fiduciary; provided, however, that no such
person shall be entitled to such indemnity or reimbursement.
(a) in relation to matters as to which he shall be finally adjudged in
an action brought by the Bank directly or derivatively to be liable for breach
of a duty to or for nonpayment of a liability to the Bank; or
(b) in relation to matters included in an action, suit or proceeding
of the kind referred to in the foregoing subparagraph (a) but which is settled
or disposed of without final adjudication on the merits except and unless the
Board or, as the case may be, the stockholders, shall make the same findings as
are provided for in the following subparagraph (c) as a condition precedent to
such indemnity or reimbursement; or
(c) in relation to matters involved in an action, suit or proceeding
which is of a kind other than that referred to in the foregoing subparagraph
(a), unless such action, suit or proceeding is dismissed or otherwise disposed
of on the merits in favor of such person, or, if not so dismissed or disposed
of, unless the Board shall find that such person acted in good faith for a
purpose which he reasonably believed to be in the best interests of the Bank,
and in the case of criminal actions or proceedings, in addition had good warrant
to believe that his conduct was not unlawful.
SECTION 2. FINDINGS. The action by the Board called for in subparagraph (c) of
Section 1 hereof shall be at a meeting at which a quorum consisting of directors
who are not parties to such suit, action or proceeding is present; and in taking
such action no director involved shall be qualified to vote thereon. In the
absence of quorum, such finding shall nevertheless be effective if made by
resolution of the stockholders adopted at an annual meeting or at a special
meeting of the stockholders. The right of indemnification or reimbursement
provided for by this Article shall not be exclusive and shall not affect any
right to indemnification or reimbursement which any director, officer or
employee might otherwise have as a matter of law.
The term "Bank" as used in this Article shall be deemed to include the Bank and
the predecessor bank of the same name, all with the same effect as if the Bank
and said predecessor had at all times been one and the same corporation.
SECTION 3. LEGAL EXPENSES. Expenses incurred by a director, officer or
employee in defending a civil or criminal action, suit or proceeding may be paid
by the Bank in advance of the final disposition of such action, suit or
proceeding as authorized by the Board of Directors in a specific case upon
receipt of an undertaking by or on behalf of the director, officer or employee
to repay such amount unless it shall ultimately be determined that he is
entitled to indemnification as provided in this Article VIII.
<PAGE>
ARTICLE IX: MANAGEMENT SUCCESSION PROVISIONS
---------------------------------------------
In the temporary absence of the Chairman of the Board, a Vice Chair of the Board
and the President, certain Executives or Senior Vice Presidents shall have and
exercise all the powers and duties of the Chief Executive Officer until the
Board of Directors meets to provide for permanent succession, the order of
precedence having been set by the Board of Directors referring to this Article
IX. The provisions of this paragraph are, however, subject to the right of the
stockholder, the Board of Directors and of the Executive Committee to appoint
the presiding officer of their respective meetings.
ARTICLE X: AMENDMENT OR REPEAL
-------------------------------
These bylaws, or any part hereof, may be amended, altered, changed, added to or
repealed, and other adopted in their place by the Board of Directors of the
Bank, at any regular or special meeting.
. . . . . . . . . . . . . . . . .
I, C. Potter hereby certify that I am the Assistant Secretary of
Harris Trust and Savings Bank, Chicago, Illinois and that the
foregoing is a true and correct copy of the bylaws of this bank and
that the same are in full force and effect this 31st day of August,
1995
___________________________
Assistant Secretary
