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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 26, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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THE GOODYEAR TIRE & RUBBER COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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OHIO
(STATE OF INCORPORATION)
34-0253240
(I.R.S. EMPLOYER IDENTIFICATION NUMBER)
1144 EAST MARKET STREET
AKRON, OHIO 44316-0001
(330) 796-2121
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, OF REGISTRANT'S PRINCIPAL
EXECUTIVE OFFICES)
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C. THOMAS HARVIE, ESQ., VICE PRESIDENT AND GENERAL COUNSEL
THE GOODYEAR TIRE & RUBBER COMPANY
1144 EAST MARKET STREET
AKRON, OHIO 44316-0001
(330) 796-2121
(ADDRESS, INCLUDING ZIP CODE AND TELEPHONE NUMBER, OF AGENT FOR SERVICE)
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COPIES TO:
GERRY V. WITTKAMPER, ESQ. JOHN W. WHITE, ESQ.
THE GOODYEAR TIRE & RUBBER COMPANY CRAVATH, SWAINE & MOORE
1144 EAST MARKET STREET WORLDWIDE PLAZA
AKRON, OHIO 44316-0001 825 EIGHTH AVENUE
NEW YORK, NY 10019-7475
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
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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, please 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
<TABLE>
<S> <C> <C> <C> <C>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT BEING OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
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Debt Securities................... $500,000,000(1) 100% $500,000,000(2) $172,413.80
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</TABLE>
(1) Or, if any Debt Securities are issued at original issue discount, such
greater amount as may result in the initial offering prices for Debt
Securities aggregating $500,000,000. Any offering of Debt Securities
denominated in any foreign currencies or foreign currency units will be
treated as the equivalent in U.S. dollars based on the exchange rate
applicable to the purchase of such Debt Securities from the Registrant.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(a) under the Securities Act of 1933.
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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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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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 MARCH 26, 1996
THE GOODYEAR TIRE & RUBBER COMPANY
DEBT SECURITIES
------------------------
The Goodyear Tire & Rubber Company (the "Company") may offer and sell from
time to time debt securities consisting of debentures, notes and/or other
unsecured evidences of indebtedness (the "Debt Securities") in one or more
series at an aggregate initial offering price not to exceed $500,000,000 (or its
equivalent at the time of offering in a non-U.S. dollar currency or a composite
currency or currencies). As used herein, the term Debt Securities shall include
securities denominated, or whose principal is payable, in United States dollars,
or, at the option of the Company, in any other currency or in a composite
currency or currencies or in amounts determined by reference to an index. The
Debt Securities may be offered in separate series in amounts, at prices and on
terms to be determined at the time of offering. The terms of the Debt
Securities, including, where applicable, the specific designation, aggregate
principal amount, denominations, maturity, interest rate or rates (which may be
fixed or variable) and time of payment of interest, if any, terms for redemption
at the option of the Company or the holder, terms for any sinking fund payments,
any listing on a securities exchange, the initial public offering price or
prices and certain other terms of the offering and sale of the Debt Securities
in respect of which this Prospectus is being delivered will be set forth in an
accompanying Prospectus Supplement (the "Prospectus Supplement").
The Debt Securities may be sold to or through underwriters, dealers or
agents or directly to other purchasers. See "Plan of Distribution." The names of
any underwriters, dealers or agents, the principal amounts to be purchased by
any underwriters or dealers acting for their own accounts and the compensation
of such underwriters, dealers or agents will be set forth in the applicable
Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
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.
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The date of this Prospectus is , 1996
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NO DEALER, SALESPERSON, OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT AND, IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR THE UNDERWRITERS. THIS PROSPECTUS AND
THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION
OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO
ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN SUCH JURISDICTION.
NEITHER THE DELIVERY OF THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT NOR ANY
SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY
IMPLICATION THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF
THE COMPANY SINCE SUCH DATE.
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, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission
pursuant to the informational requirements of the Exchange Act may be inspected
and copied at the public reference facilities maintained by the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, and at its Regional Offices
located at 230 South Dearborn Street, Chicago, Illinois 60604 and 75 Park Place,
New York, New York 10007. Copies of such material can be obtained, at prescribed
rates, by writing to the Commission, Public Reference Section, at 450 Fifth
Street, N.W., Washington, D.C. 20549. Such material can also be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005, The Chicago Stock Exchange, Incorporated, 440 South LaSalle Street,
Chicago, Illinois, and The Pacific Stock Exchange, Incorporated, 115 Sansone
Street, San Francisco, California, on which exchanges shares of the Company's
Common Stock are listed.
The Company has filed with the Commission a registration statement on Form
S-3 relating to the Debt Securities (such registration statement, together with
all amendments, exhibits and schedules, is referred to collectively herein as
the "Registration Statement") under the Securities Act of 1933, as amended (the
"Act"). This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which have been omitted in accordance
with the rules and regulations of the Commission. For further information,
reference is hereby made to the Registration Statement. Copies of the
Registration Statement may be inspected, without charge, at the offices of the
Commission, or obtained at prescribed rates from the Public Reference Section of
the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1995 is hereby incorporated by reference into the Registration Statement, of
which this Prospectus is a part, filed with the Commission (File No. 1-1927)
under the Exchange Act.
All documents filed by the Company with the Commission pursuant to Section
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 Debt Securities shall be
deemed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing such documents. Any statement contained in this
Prospectus or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein, or in any
subsequently filed document that also is or is deemed to be incorporated by
reference herein, modifies or supersedes such statement. Any
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statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus is delivered, upon the request of such person, a
copy of any or all of the foregoing documents incorporated herein by reference
(other than exhibits to such documents, unless such exhibits are specifically
incorporated by reference into such documents). Requests for such copies should
be directed to the attention of The Goodyear Tire & Rubber Company, 1144 East
Market Street, Akron, Ohio 44316-0001, Attention: Office of the Secretary
(Telephone number: 330-796-2121).
THE COMPANY
The Goodyear Tire & Rubber Company (the "Company" and, together with its
domestic and foreign subsidiary companies, "Goodyear") is a leading producer of
tires and rubber products. Goodyear manufactures and sells new tires for most
applications in most regions of the world. Goodyear also manufactures and
markets several lines of rubber and reinforced plastic products for the
transportation industry and various industrial and consumer markets and numerous
rubber-related chemicals for various applications, provides automotive repair
and other services and sells various other products. Goodyear's Celeron
subsidiaries engage in various crude oil transportation and related activities,
primarily the operation of the All American Pipeline System, a 1,225 mile crude
oil pipeline extending from two points along the central California coast to
McCamey, Texas.
The Company, an Ohio corporation organized in 1898, maintains its principal
executive offices at 1144 East Market Street, Akron, Ohio 44316-0001. The
Company's telephone number is 330-796-2121.
USE OF PROCEEDS
Unless otherwise indicated in a Prospectus Supplement relating to a series
of Debt Securities, the net proceeds from the sale of the Debt Securities will
be used for general corporate purposes, including, without limitation, to
refinance short-term bank borrowings and other existing indebtedness, future
acquisitions, capital expenditures and working capital. Each Prospectus
Supplement will contain specific information concerning the use of proceeds from
the issue and sale of the Debt Securities offered thereunder.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's ratio of earnings to fixed
charges for the periods indicated:
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31, 1995
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1995 1994 1993 1992 1991
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<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges.............. 5.31 4.95 4.16 2.97 1.69
</TABLE>
For purposes of computing the Ratio of Earnings to Fixed Charges, (a)
"earnings" consist of income before income taxes, extraordinary items and
cumulative effect of accounting changes (plus amortization of capitalized
interest, minority interest in net income of subsidiaries with fixed charges and
the shares of fixed charges of equity investees, minus capitalized interest, the
interests of minorities in subsidiary losses and undistributed earnings of
equity investees), and (b) "fixed charges" include interest expense,
amortization of debt discount and expense, the portion of rents representative
of an interest factor, capitalized interest and the Company's share of fixed
charges of equity investees. If the financing fees associated with the Company's
receivable sales programs were included in fixed charges, the Ratio of Earnings
to Fixed Charges would be 4.68, 4.46, 3.89, 2.80 and 1.62 for the years ended
December 31, 1995, 1994, 1993, 1992 and 1991, respectively.
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DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions
of the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the series of Debt Securities offered by an accompanying
Prospectus Supplement (the "Offered Debt Securities"), and the extent to which
the following general provisions apply thereto, will be described therein.
The Debt Securities will be issued under an Indenture, dated as of March
15, 1996 (the "Indenture"), between the Company and Chemical Bank, as Trustee
(the "Trustee"), a form of which Indenture is filed as an exhibit to the
Registration Statement. The following summaries of certain provisions of the
Indenture do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all the provisions of the Indenture, including
the definitions therein. Certain terms defined in the Indenture are capitalized
herein. Wherever capitalized terms are used and not otherwise defined herein, it
is intended that such terms shall have the meanings assigned to them in the
Indenture.
GENERAL
The Indenture limits the aggregate principal amount of the Debt Securities
which may be issued thereunder to $500,000,000. The Indenture does not further
limit the aggregate principal amount of any particular series of Offered Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued from time to time in series. The Debt Securities will be direct
unsecured obligations of the Company and will rank pari passu in right of
payment with all other unsecured and unsubordinated indebtedness of the Company.
Reference is made to the Prospectus Supplement relating to the Offered Debt
Securities for the following terms or additional provisions thereof, where
applicable: (1) the title of the Offered Debt Securities; (2) any limit on the
aggregate principal amount of the Offered Debt Securities; (3) the price
(expressed as a percentage of the aggregate principal amount thereof) at which
the Offered Debt Securities will be issued; (4) the date or dates on which the
Offered Debt Securities will mature; (5) the rate or rates (which may be fixed
or variable) at which the Offered Debt Securities will bear interest, if any;
(6) the date or dates from which any such interest will accrue, the date on
which payment of such interest will commence, the Interest Payment Dates, the
Regular Record Dates for such Interest Payment Dates, and the Person to whom any
such interest will be payable, if other than the Person in whose name the
Offered Debt Security (or one or more Predecessor Securities) is registered at
the close of business on the Regular Record Date for such interest payment; (7)
the place or places where the principal of (and premium, if any) and interest on
the Offered Debt Securities will be payable; (8) the dates on which and the
price or prices at which the Offered Debt Securities will, pursuant to any
mandatory sinking fund provisions, or may, pursuant to any optional sinking fund
provisions, be redeemed by the Company, and the other detailed terms and
provisions of such sinking funds; (9) the date, if any, after which, and the
price or prices at which, the Offered Debt Securities may, pursuant to any
optional redemption provisions, be redeemed at the option of the Company or of
the Holder thereof and the other detailed terms and provisions of such optional
redemptions; (10) the currency or currencies, including composite currencies, in
which payment of the principal of (and premium, if any) and interest on the
Offered Debt Securities will be payable if other than U.S. dollars; (11) any
index used to determine the amount of payments of principal of (and premium, if
any) or interest on the Offered Debt Securities; (12) the portion of the
principal amount of the Offered Debt Securities, if other than the principal
amount thereof, payable upon acceleration of maturity thereof; (13) the right of
the Company to defease the Offered Debt Securities for purposes of certain
restrictive covenants and certain Events of Default under the Indenture; (14)
whether such Debt Securities will be issued in fully registered form without
coupons or will be issued in the form of one or more global securities in
temporary global form or definitive global form; and (15) any other terms of the
Offered Debt Securities. (Section 3.01)
Unless otherwise provided in the Prospectus Supplement relating to the
Offered Debt Securities, (1) principal of (and premium, if any) and interest on
the Debt Securities will be payable, and the Debt Securities of each series will
be exchangeable and transfers thereof will be registrable, at the Corporate
Trust Office of the Trustee, except that, at the option of the Company, interest
may be paid by mailing a check to
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the address of the Person entitled thereto as it appears in the Security
Register; (2) payment of any interest due on any Debt Security will be made to
the Person in whose name such Debt Security is registered at the close of
business on the Regular Record Date for such interest; and (3) the Debt
Securities will be issued only in fully registered form without coupons and in
denominations of $1,000 or any integral multiples thereof. 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. (Sections 3.01, 3.02, 3.05,
3.07 and 10.02)
Debt Securities may be issued as Original Issue Discount Debt Securities to
be sold at a substantial discount from their principal amount. In that event,
special federal income tax, accounting and other considerations applicable
thereto will be described in the Prospectus Supplement rating thereto. "Original
Issue Discount Security" means any Debt 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. (Section 1.01)
The applicable Prospectus Supplement will describe the federal income tax
consequences of the ownership of any Offered Debt Securities denominated in
other than U.S. dollars.
COVENANTS
LIMITATION ON SECURED INDEBTEDNESS. The Company will covenant that it will
not, and will not permit any Restricted Subsidiary (as defined below) to, issue,
assume or guarantee any Secured Indebtedness (as defined below), if such Secured
Indebtedness is secured by a Lien upon Restricted Property (as defined below) of
the Company or a Restricted Subsidiary (as defined below) without securing the
Debt Securities equally and ratably with, or prior to, such Debt Securities. The
limitation on Secured Indebtedness does not apply, however, to: (i) any Lien on
property of any corporation if such Lien is in existence at the time such
corporation becomes a Restricted Subsidiary, (ii) any Lien on Restricted
Property if such Lien is in existence at the time of acquisition by the Company
or a Restricted Subsidiary of such Restricted Property; (iii) any Lien on
Restricted Property to secure the payment of all or any part of the purchase
price (or other acquisition cost) of such Restricted Property or to secure any
indebtedness incurred (prior to, at the time of, or within one year after, the
acquisition by the Company or a Restricted Subsidiary of such Restricted
Property) for the purpose of, or in connection with, financing all or any part
of the purchase price thereof; (iv) any Lien on property of the Company or a
Restricted Subsidiary if such Lien was in existence prior to the time a
corporation is merged into or consolidated with, or prior to the time of a sale,
lease or other disposition of the properties of such corporation as an entirety
or substantially as an entirety to, the Company or a Restricted Subsidiary; (v)
any Lien securing Secured Indebtedness owing by any Restricted Subsidiary to the
Company or another Restricted Subsidiary; (vi) any Lien on Restricted Property
in favor of the United States of America or any State thereof, or any
department, agency or instrumentality or political subdivision of the United
States of America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or other
payments, or performance of any other obligations, pursuant to any contract or
statute or to secure any indebtedness incurred for the purpose of financing all
or any part of the purchase price or cost of construction of the Restricted
Property subject to such Lien, including, without limitation, Liens to secure
pollution control bonds or industrial revenue or other types of bonds; (vii) any
Lien on personal property (other than manufacturing equipment); (viii) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any Secured Indebtedness or any Lien
referred to in clauses (i) through (vii), provided that the principal amount of
Secured Indebtedness secured by the Lien shall not exceed the principal amount
of Secured Indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Lien shall be
limited to all or a part of the Restricted Property which secured the Lien so
extended, renewed or replaced (plus improvements on such Restricted Property);
and (ix) Liens on Restricted Property if, immediately after the grant thereof,
the aggregate amount of all Secured Indebtedness secured by Liens that would not
be permitted but for this clause (ix) does not exceed 15% of the Shareholders'
Equity of the Company (as defined below) as at the last day of the then most
recently
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completed fiscal quarter of the Company, as reported on the consolidated balance
sheet of the Company. (Section 10.05.)
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. The Company will covenant
that it will not, and will not permit any Restricted Subsidiary to, enter into
any lease (except leases for a term of not more than three years and excluding
leases of newly acquired, improved or constructed property) covering any
Restricted Property of the Company or a Restricted Subsidiary owned at March 15,
1996 that is sold to any other person in connection with such lease (a "Sale and
Leaseback Transaction"), unless the Company or such Restricted Subsidiary would
either (a) be entitled, pursuant to the provisions of Section 10.05 of the
Indenture, to incur Secured Indebtedness secured by a Lien on the Restricted
Property to be leased in an amount equal to the Attributable Debt with respect
to such Sale and Leaseback Transaction without equally and ratably securing the
Debt Securities, or (b) the Company or such Restricted Subsidiary applies an
amount equal to the proceeds from the sale of such Restricted Property to the
retirement of any Funded Debt (as defined below) of the Company or such
Restricted Subsidiary within 120 days of the effective date of such Sale and
Leaseback Transaction. This restriction on Sale and Leaseback Transactions does
not, however, prevent the Company or any Restricted Subsidiary from: (i)
entering into any transaction not involving a lease with a term of more than
three years; or (ii) entering into any Sale and Leaseback Transaction if it is
entered into within 180 days after the later of the acquisition, completion of
construction of such property, or the commencement of operation of such
Restricted Property. (Section 10.06)
CERTAIN DEFINITIONS. As used in the Indenture: "Attributable Debt" will
mean the total net amount of rent required to be paid during the remaining term
of the relevant lease, discounted at the rate per annum equal to the lesser of
(i) the prevailing market interest rate at the relevant date, on United States
Treasury obligations having a maturity substantially equal to the average term
of the relevant lease, plus 3%, or (ii) the weighted average interest rate borne
by the Debt Securities then outstanding; "Funded Debt" will mean as any date as
of which any determination thereof is being or to be made, all Indebtedness that
by its terms (i) matures more than one year after the date on which it was so
issued, incurred, assumed or guaranteed by the Company (or a Restricted
Subsidiary), or (ii) matures one year or less after the date it was issued,
incurred, guaranteed or assumed which at such date may be renewed at the sole
election or option of the Company (or a Restricted Subsidiary) so as to mature
more than one year after such date; "Indebtedness" of any person will mean
indebtedness for money borrowed (including capitalized lease obligations and
conditional sales and similar agreements which provide for the deferral of the
payment of the purchase price for property or services for a period in excess of
one year after acceptance of the complete delivery thereof); "Lien" will mean
with respect to any asset, (i) any mortgage, deed of trust, lien, pledge,
encumbrance, charge or security interest in or on such asset, or (ii) the
interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement relating to such asset; "Restricted Property"
will mean any manufacturing plant or equipment owned by the Company or a
Restricted Subsidiary which is used primarily to manufacture tires or other
automotive products and is located within any one or more of the States of the
United States of America, but shall not include (i) retread plants, (ii) plants
or equipment which, in the opinion of the Board of Directors of the Company, are
not of material importance to the total business conducted by the Company and
its Subsidiaries as a whole, or (iii) plants, facilities or equipment which, in
the opinion of the Board of Directors of the Company, are used primarily for
transportation, marketing or warehousing; "Restricted Subsidiary" will mean a
subsidiary organized under the laws of any State of the United States of America
engaged primarily in manufacturing tires or other automotive products (i)
substantially all of the assets of which are located within any one or more of
the States of the United States of America, and (ii) which has assets in excess
of 5% of the total consolidated assets of the Company and its consolidated
Subsidiaries (as shown on the then most recent annual or quarterly consolidated
balance sheet of the Company), except that "Restricted Subsidiary" will not
include any subsidiary the principal business of which is financing accounts
receivable, leasing, owning and developing real estate, engaging in
transportation activities, or engaging in distribution or related activities;
"Secured Indebtedness" will mean Indebtedness of the Company or any Restricted
Subsidiary secured a Lien on Restricted Property, but excluding from such
definition all Indebtedness which is (i) outstanding on March 15, 1996 and
secured by Liens existing on that date, or (ii) not Funded Debt; "Shareholders'
Equity" of the Company will mean, the sum of the stated capital, plus capital
surplus, plus Retained Earnings of the Company and its Consolidated Subsidiaries
as set
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forth on the then most recent annual or quarterly consolidated balance sheet;
and "Subsidiary" will mean any corporation more than 50% of the voting stock of
which is owned, directly or indirectly, by the Company and/or one or more other
Subsidiaries of the Company. (Section 1.01)
CONSOLIDATION, MERGER AND SALE OF ASSETS. The Company will covenant that
it will not merge into or consolidate with any other corporation, or sell all or
substantially all of its assets as an entirety to any person (except for cash),
unless (a) the successor is a corporation organized under the laws of the United
States of America or any State thereof, and (b) the successor assumes all the
obligations under the Debt Securities and the Indenture. (Section 8.01). Upon
any such merger, consolidation or sale, the successor will succeed to, and will
be substituted in lieu of, the Company. (Section 8.02).
LEVERAGED TRANSACTIONS AND CHANGES IN CONTROL. Other than the Limitation
on Secured Indebtedness and Limitation on Sale and Leaseback Transactions
covenants described above, the Indenture and the Debt Securities do not contain
any covenants or other provisions designed to afford holders of the Debt
Securities protection in the event of a highly leveraged transaction involving
the Company. The Indenture does not contain provisions requiring redemption of
the Debt Securities by the Company, or adjustment to any terms of the Debt
Securities, upon any change in control of the Company.
EVENTS OF DEFAULT
An Event of Default with respect to Debt Securities of any series is
defined in the Indenture as: (1) default for 30 days in payment of any interest
on any Debt Security of that series; (2) default in payment of principal of (or
premium, if any, on) any Debt Security of that series at Maturity; (3) failure
to deposit any sinking fund payment when due in respect of that series; (4)
failure by the Company for 60 days after due notice in performance of any other
of the covenants or warranties in the Indenture (other than a covenant or
warranty included in the Indenture solely for the benefit of a series of Debt
Securities other than that series); (5) certain events of bankruptcy, insolvency
or reorganization of the Company; and (6) any other Event of Default provided
with respect to Debt Securities of that series. (Section 5.01)
The Indenture provides that, if any Event of Default with respect to Debt
Securities of any series at the time Outstanding occurs and is continuing,
either the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series may declare the principal amount
(or, if any of the Debt Securities of that series are Original Issue Discount
Debt Securities, such portion of the principal amount of such Debt Securities as
may be specified in the terms thereof) of all Debt Securities of that series to
be due and payable immediately, but upon certain conditions such declaration may
be annulled and past defaults (except, unless theretofore cured, a default in
payment of principal of (or premium, if any) or interest on the Debt Securities
of that series and certain other specified defaults) may be waived by the
Holders of a majority in principal amount of the Outstanding Debt Securities of
that series on behalf of the Holders of all Debt Securities of that series.
(Sections 5.02 and 5.13)
Reference is made to the Prospectus Supplement relating to each series of
Offered Debt Securities that consists in whole or in part of Original Issue
Discount Debt Securities for the particular provisions relating to acceleration
of the Maturity of a portion of the principal amount of such Original Issue
Discount Debt Securities upon the occurrence of an Event of Default and the
continuation thereof.
The Indenture provides that the Trustee will, within 90 days after the
occurrence of a default with respect to Debt Securities of any series at the
time Outstanding, give to the Holders of the Outstanding Debt Securities of that
series notice of such default known to it if uncured and not waived, provided
that, except in the case of default in the payment of principal of (or premium,
if any) or interest on any Debt Security of that series, on in the deposit of
any sinking fund payment which is provided, the Trustee will be protected in
withholding such notice if the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of the Outstanding
Debt Securities of such series; and, provided further, that in the case of any
default of the character specified in clause (4) under "Events of Default," such
notice shall not be given until at least 30 days after the occurrence thereof.
The term "default" with respect to any series of Outstanding Debt Securities for
the purpose only of this provision means any event which is, or after notice or
lapse of time or both would become, an Event of Default. (Section 6.02)
7
<PAGE> 9
The Indenture contains a provision entitling the Trustee, subject to the
duty of the Trustee during default to act with the required standard of care, to
be indemnified by the Holders of any series of Outstanding Debt Securities
before proceeding to exercise any right or power under the Indenture at the
request of the Holders of such series of Debt Securities. (Section 6.03) Subject
to such provisions for indemnification of the Trustee, the Indenture provides
that the Holders of a majority in principal amount of Outstanding Debt
Securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Debt Securities of such
series, provided that the Trustee may decline to act if such direction is
contrary to law or the Indenture. (Section 5.12)
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless: (1) such Holder shall have previously given to the Trustee
written notice of a continuing Event of Default with respect to Debt Securities
of that series, (2) the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of that series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, (3) the Trustee shall have failed to institute such proceeding within
60 days and (4) the Trustee shall not have received from the Holders of a
majority in principal amount of the Outstanding Debt Securities of that series a
direction inconsistent with such request during such 60-day period. (Section
5.07) However, the Holder of any Debt Security will have an absolute right to
receive payment of the principal of (and premium, if any) and any interest on
such Debt Security on or after the due dates expressed in such Debt Security and
to institute suit for the enforcement of any such payment. (Section 5.08)
The Indenture includes a covenant that the Company will file annually with
the Trustee a certificate of no default as to certain provisions of the
Indenture, or specifying any default that exists. (Section 10.08)
DEFEASANCE
The Prospectus Supplement will state if any defeasance provision will apply
to the Offered Debt Securities.
DEFEASANCE AND DISCHARGE. The Indenture provides that, if applicable, the
Company will be discharged from any and all obligations in respect of the Debt
Securities of any series (except for certain obligations to register the
transfer or exchange of Debt Securities of such series, to replace stolen, lost
or mutilated Debt Securities of such series, to maintain paying agencies and to
hold monies for payment in trust) upon the deposit with the Trustee, in trust,
of money or U.S. Government Obligations which through the payment of interest
and principal in respect thereof in accordance with their terms will provide
money in an amount sufficient to pay (1) the principal of (and premium, if any)
and each installment of interest on the Debt Securities of such series on the
Stated Maturity of such payments and (2) installments of any sinking fund
payments applicable to the Debt Securities of such series, in accordance with
the terms of the Indenture and the Debt Securities of such series. Such a trust
may only be established if, among other things, the Company has delivered to the
Trustee an Opinion of Counsel (who may be an employee of or counsel for the
Company) to the effect that (1) that Holders of the Debt Securities of such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit, defeasance and discharge and will be subject to
federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and discharge had
not occurred, or, in lieu of such opinion, the Company delivers to the Trustee a
ruling of the Internal Revenue Service to the same effect, and (2) the Debt
Securities, if then listed on a national securities exchange under the Exchange
Act, would not be delisted as a result of such defeasance. (Sections 13.02 and
13.04)
DEFEASANCE OF CERTAIN COVENANTS AND CERTAIN EVENTS OF DEFAULT. The
Indenture provides that, if applicable, the Company may omit to comply with
certain restrictive covenants in Sections 10.05 and 10.06, and the occurrence
and continuance of an Event of Default under Section 5.01(d) (described in
clause (4) under "Events of Default") shall not be deemed to be an Event of
Default under the Indenture and the Debt Securities of any series, upon the
deposit with the Trustee, in trust, of money or U.S. Government Obligations
which through the payment of interest and principal in respect thereof in
accordance with their terms will
8
<PAGE> 10
provide money in an amount sufficient to pay (1) the principal of (and premium,
if any) and each installment of interest on the Debt Securities of such series
on the Stated Maturity of such payments and (2) installments of any sinking fund
payments applicable to the Debt Securities of such series, in accordance with
the terms of the Indenture and the Debt Securities of such series. The
obligations of the Company under the Indenture and the Debt Securities of such
series other than the covenants referred to above and the Events of Default
other than the Events of Default referred to above shall remain in full force
and effect. Such a trust may only be established if, among other things, the
Company has delivered to the Trustee an Opinion of Counsel (who may be an
employee of or counsel for the Company) to the effect that (1) the Holders of
the Debt Securities of such series will not recognize income, gain or loss for
federal income tax purposes as a result of such deposit and defeasance of
certain covenants and Events of Default and will be subject to federal income
tax on the same amount and in the same manner and at the same times, as would
have been the case if such deposit and defeasance had not occurred and (2) the
Debt Securities of such series, if then listed on a national securities exchange
under the Exchange Act, would not be delisted as a result of such defeasance.
(Sections 13.03 and 13.04)
DEFEASANCE AND CERTAIN OTHER EVENTS OF DEFAULT. In the event the Company
exercises its option not to comply with certain covenants of the Indenture with
respect to the Debt Securities of any series as described above and the Debt
Securities of such series are declared due and payable because of the occurrence
of any Event of Default other than an Event of Default described in clause (4)
under "Events of Default," the amount of money and U.S. Government Obligations
on deposit with the Trustee will be sufficient to pay amounts due on the Debt
Securities of such series at the time of their stated maturity, but may not be
sufficient to pay amounts due on the Debt Securities of such series at the time
of the acceleration resulting from such Event of Default. However, the Company
shall remain liable for such payments.
MODIFICATIONS AND WAIVERS OF THE INDENTURE
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in principal amount
of Outstanding Debt Securities of each series affected thereby, to execute
supplemental indentures adding any provisions to or changing or eliminating any
of the provisions of the Indenture or modifying the rights of the Holders of
Outstanding Debt Securities of such series, except that no such supplemental
indenture may, without the consent of the Holder of each Outstanding Debt
Security affected thereby, (1) change the Stated Maturity of the principal of,
or any installment of principal of or interest on, any Debt Security, (2) reduce
the principal amount of (or premium, if any) or any interest on any Debt
Security or reduce the amount of principal of an Original Issue Discount
Security that would be due and payable upon acceleration, (3) change the place
or currency of payment of principal of (or premium, if any) or interest on any
Debt Security, (4) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption Date), (5)
reduce the aforesaid percentage in principal amount of Outstanding Debt
Securities of any series, the consent of the Holders of which is required for
any such supplemental indenture or for waiver of compliance with certain
provisions of the Indenture or certain defaults thereunder, or (6) effect
certain other changes. (Section 9.02)
The Holders of at least a majority in principal amount of the Outstanding
Debt Securities of any series may on behalf of the Holders of all Debt
Securities of such series waive, insofar as such series is concerned, compliance
by the Company with certain restrictive provisions of the Indenture. (Section
10.09) The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all Debt Securities of
such series waive any past default under the Indenture with respect to such
series, except a default in the payment of the principal of (or premium, if any)
or any interest on any Debt Security of such series or in respect of a provision
or covenant which under the Indenture cannot be modified or amended without the
consent of the Holder of each Outstanding Debt Security of such series affected
thereby. (Section 5.13)
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<PAGE> 11
BOOK-ENTRY SYSTEM
The provisions set forth below in this section headed "Book-Entry System"
will apply to the Debt Securities of any series if the Prospectus Supplement
relating to such series so indicates.
The Debt Securities of such series will be represented by one or more
global securities (collectively, a "Global Security") registered in the name of
a depositary (the "Depositary") or a nominee of the Depositary identified in the
Prospectus Supplement relating to such series. Except as set forth below, a
Global Security may be transferred, in whole and not in part, only to the
Depositary or another nominee of the Depositary.
Upon the issuance of a Global Security, the Depositary will credit, on its
book-entry registration and transfer system, the respective principal amounts of
the Debt Securities represented by such Global Security to the accounts of
institutions that have accounts with the Depositary or its nominee
("participants"). The accounts to be credited will be designated by the
underwriters, dealers or agents. Ownership of beneficial interests in a Global
Security will be limited to participants or persons that may hold interests
through participants. Ownership of interests in such Global Security will be
shown on, and the transfer of those ownership interests will be effected only
through, records maintained by the Depositary (with respect to participants'
interests) and such participants (with respect to the owners of beneficial
interests in such Global Security). The laws of some jurisdictions may require
that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and laws may impair the ability to transfer
beneficial interests in a Global Security.
So long as the Depositary, or its nominee, is the registered holder and
owner of such Global Security, the Depositary or such nominee, as the case may
be, will be considered the sole owner and holder of the related Debt Securities
for all purposes of such Debt Securities and for all purposes under the
Indenture. Except as set forth 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 definitive form and will not be
considered to be the owners or holders of any Debt Securities under the
Indenture or such Global Security.
Accordingly, each person owning a beneficial interest in a Global Security
must rely on the procedures of the Depositary and, if such person is not a
participant, on the procedures of the participant through which such person owns
its interest, to exercise any rights of a holder of Debt Securities under the
Indenture or such Global Security. The Indenture permits the Depositary to
authorize participants, as its agents, to take any action which the Depositary,
as the holder of a Global Security, is entitled to take under the Indenture or
such Global Security. The Company understands that under existing industry
practice, in the event the Company requests any action of holders of Debt
Securities or an owner of a beneficial interest in a Global Security desires to
take any action that the Depositary, as the holder of such Global Security is
entitled to take, the Depositary would authorize the participants to take such
action, and that the participants would authorize beneficial owners owning
through such participants to take such action or would otherwise act upon the
instructions of beneficial owners owning through them.
Payment of principal of and premium, if any, and interest, if any, on Debt
Securities represented by a Global Security will be made to the Depositary or
its nominee, as the case may be, as the registered owner and holder of such
Global Security.
Upon receipt of any payment of principal, premium, if any, or interest, if
any, in respect of a Global Security, the Depositary will credit immediately
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global Security
as shown on the records of the Depositary. Payments by participants to owners of
beneficial interests in a Global Security held through such participants will be
governed by standing instructions and customary practices, as is the case with
securities held for the accounts of customers in bearer form or registered in
"street name," and will be the responsibility of such participants. The Company
will not have any responsibility or liability for any aspect of the records
relating to, or payments made on account of, beneficial ownership interests in a
Global Security for any Debt Securities or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests or for any
other aspect of the relationship between the Depositary and its participants or
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<PAGE> 12
the relationship between such participants and the owners of beneficial
interests in such Global Security owning through such participants.
Unless and until it is exchanged in whole or in part for Debt Securities in
definitive form, a Global Security may not be transferred except as a whole by
the Depositary to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary.
Debt Securities represented by a Global Security are exchangeable for Debt
Securities in definitive form of like tenor as such Global Security in
denominations of $1,000 and in any greater amount that is an integral multiple
thereof if (i) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or if at any time the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (ii) the Company in its discretion at any time
determines not to have all of the Debt Securities represented by a Global
Security and notifies the Trustee thereof, or (iii) an Event of Default has
occurred and is continuing with respect to the Debt Securities. Any Debt
Security that is exchangeable pursuant to the preceding sentence is exchangeable
for Debt Securities issuable in authorized denominations and registered in such
names as the Depositary shall direct. Subject to the foregoing, a Global
Security is not exchangeable, except for a Global Security or Global Securities
of the same aggregate denominations to be registered in the name of the
Depositary or its nominee.
SAME-DAY SETTLEMENT AND PAYMENT
Settlement by the purchasers of the Notes will be made in immediately
available funds. All payments by the Company to the Depositary of principal and
interest will be made in immediately available funds.
The Notes will trade in the Depositary's Same-Day Funds Settlement System
until maturity, and therefore the Depositary will require secondary trading
activity in the Notes to be settled in immediately available funds. Secondary
trading in long-term notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. No assurance can be given as to the
effect, if any, of settlement in immediately available funds on trading activity
in the Notes.
REGARDING THE TRUSTEE
Chemical Bank is the Trustee under the Indenture. The Company maintains
various banking relationships with the Trustee. Chemical is the agent and a
lender under (i) a Revolving Credit Facility Agreement, dated as of July 15,
1994, whereunder Chemical Bank and 30 other domestic and international banks
have agreed to lend up to $900 million at any time and from time to time through
July 15, 1995, and (ii) a Credit Agreement [364-Day Facility], dated as of July
15, 1994, whereunder Chemical Bank and 29 other domestic and international banks
have agreed to lend up to $294 million at any time and from time to time until
July 12, 1996, when the commitment of each participating bank terminates unless
extended for 364 days on a bank by bank basis or, if not so extended, the
Company may obtain a two year loan from any non-extending bank. Chemical Bank is
also the counterparty to certain interest rate exchange transactions and
performs various other banking services for the Company in the ordinary course
of business. Chemical Bank has received and will receive fees and other
compensation in connection with the aforesaid credit agreements and for such
other transactions and services.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters, dealers or
agents or directly to other purchasers.
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<PAGE> 13
The distribution of Debt Securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices. Underwriters may sell Debt
Securities to or through dealers.
In connection with the sale of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions
from the underwriters and/or commissions from the purchasers for whom they may
act as agents. Underwriters, dealers and agents that participate in the
distribution of Debt Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company and any profit on the
resale of Debt Securities by them may be deemed to be underwriting discounts and
commissions under the Act. Any such underwriter or agent will be identified, and
any such compensation to be received from the Company will be described, in the
Prospectus Supplement.
Under agreements that may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act. Underwriters, dealers and agents
may engage in transactions with, or perform services for, the Company and its
subsidiaries in the ordinary course of business and receive fees in connection
therewith.
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Offered Debt Securities from the Company
pursuant to contracts providing for payment and delivery on a future date.
Institutions with which such contracts may be made include commercial and
savings banks, insurance companies, pension funds, investment companies,
educational and charitable institutions and others, but in all cases such
institutions must be approved by the Company. The obligations of any purchaser
under any such contract will be subject to the condition that the purchase of
the Offered Debt Securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such other agents will not have any responsibility in respect
of the validity or performance of such contracts.
Each series of Debt Securities will be a new issue of securities with no
established trading market. Unless otherwise specified in a Prospectus
Supplement relating to a series of Debt Securities, the Debt Securities will not
be listed on any securities exchange. Any underwriters to whom Debt Securities
are sold by the Company for public offering and sale may make a market in such
Debt 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 that any underwriter will make a market in the Debt Securities of any
series or as to the existence or liquidity of a trading market for the Debt
Securities of any series.
VALIDITY OF DEBT SECURITIES
Unless otherwise indicated in an accompanying Prospectus Supplement
relating to Offered Debt Securities, the validity of the Debt Securities will be
passed upon for the Company by C. Thomas Harvie, Esq., a Vice President and the
General Counsel of the Company, and for the underwriters or agents by Cravath,
Swaine & Moore, Worldwide Plaza, 825 Eighth Avenue, New York, New York 10019.
EXPERTS
The consolidated financial statements of the Company incorporated in this
Prospectus by reference to the Company's Annual Report on Form 10-K for the year
ended December 31, 1995 have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of said
firm as experts in auditing and accounting.
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<PAGE> 14
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following list sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred in connection with the
issuance and distribution of the Debt Securities being registered by this
Registration Statement. All amounts are estimated except the Commission
registration fee.
<TABLE>
<S> <C>
Commission Registration Fee........................................... $172,413.80
Printing and Engraving Costs.......................................... $ 75,000.00*
Accounting Fees and Expenses.......................................... $ 85,000.00*
Trustee Fees and Expenses............................................. $ 20,000.00*
Legal Fees and Expenses............................................... $ 10,000.00*
Rating Agencies' Fees................................................. $457,500.00*
Blue Sky Fees and Expenses............................................ $ 10,000.00*
Miscellaneous......................................................... $ 30,000.00*
-----------
Total....................................................... $859,913.80
===========
</TABLE>
- ---------------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Code of Regulations of Registrant concerns indemnification
of the Registrant's directors and officers and provides as follows:
INDEMNIFICATION
"The Company shall indemnify each person who is or was a director, officer
or employee of the Company, or of any other corporation which he served as such
at the request of the Company, against any and all liability and reasonable
expense that may be incurred by him in connection with or resulting from any
claim, action, suit or proceeding (whether brought by or in the right of the
Company or such other corporation or otherwise), civil or criminal, or in
connection with an appeal relating thereto, in which he may become involved, as
a party or otherwise, by reason of his being or having been a director, officer,
or employee of the Company or of such other corporation, or by reason of any
past or future action taken or not taken in his capacity as such director,
officer, or employee, whether or not he continues to be such at the time such
liability or expense is incurred, provided such person acted, in good faith, in
what he reasonably believed to be the best interests of the Company or such
other corporation, as the case may be, and, in addition, in any criminal action
or proceeding, had no reasonable cause to believe that his conduct was unlawful.
As used in this Article, the terms "liability" and "expense" shall include, but
shall not be limited to, counsel fees and disbursements and amounts of
judgments, fines, or penalties against, and amounts paid in settlement by, a
director, officer, or employee, other than amounts paid to the Company itself or
to such other corporation served at the Company's request. The termination of
any claim, action, suit, or proceeding, civil or criminal, by judgment,
settlement (whether with or without court approval) or conviction or upon a plea
of guilty or of nolo contendere, or its equivalent, shall not create a
presumption that a director, officer, or employee did not meet the standards of
conduct set forth in the first sentence of this Article. Any such director,
officer, or employee referred to in this Article who has been wholly successful,
on the merits or otherwise, with respect to any claim, action, suit or
proceeding of the character described herein shall be entitled to
indemnification as of right. Except as provided in the preceding sentence, any
indemnification hereunder shall be made at the discretion of the Company, but
only if (1) the Board, acting by a quorum consisting of directors who are not
parties to (or who have been wholly successful with respect to) such claim,
action, suit, or proceeding, shall find that the director, officer, or employee
has met the standards of conduct set forth in the first sentence of
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this Article, or (2) independent legal counsel (who may be the regular counsel
of the Company) shall deliver to it their written advice that, in their opinion,
such director, officer, or employee has met such standards. Expense incurred
with respect to any such claim action, suit, or proceeding may be advanced by
the Company prior to the final disposition thereof upon receipt of an
undertaking by or on behalf of the recipient to repay such amount unless it
shall ultimately be determined that he is entitled to indemnification under this
Article. The rights of indemnification provided in this Article shall be in
addition to any rights to which any person concerned may otherwise be entitled
by contract or as a matter of law, and shall inure to the benefit of their
heirs, executors, and administrators of any such person."
Indemnification also may be made available by Registrant to its directors,
officers, employees and agents, and may be available as a matter of right, under
Section 1701.13(E) of the Ohio Revised Code. Section 1701.13(E) of the Ohio
Revised Code provides as follows:
"(E)(1) A corporation may indemnify or agree to indemnify
any person who was or is a party, or is threatened to be made a
party, to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, other than an action by or in the right of the
corporation, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director,
trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including
attorney's fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection
with such action, suit, or proceeding, if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to
any criminal action or proceeding, if he had no reasonable cause
to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, or
conviction, or upon a plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did
not act in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation,
and, with respect to any criminal action or proceeding, he had
reasonable cause to believe that his conduct was unlawful.
(2) A corporation may indemnify or agree to 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 suit
by or in the right of the corporation to procure a judgment in
its favor, by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation, or is or was
serving at the request of the corporation as a director,
trustee, officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture,
trust, or other enterprise, against expenses, including
attorney's fees, actually and reasonably incurred by him in
connection with the defense or settlement of such action or
suit, if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
corporation, except that no indemnification shall be made in
respect of any of the following:
(a) Any claim, issue, or matter as to which such person is
adjudged to be liable for negligence or misconduct in the
performance of his duty to the corporation unless, and only to
the extent that, the court of common pleas or the court in which
such action or suit was brought determines, upon application,
that, despite the adjudication of liability, but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the court
of common pleas or such other court shall deem proper;
(b) Any action or suit which the only liability asserted
against a director is pursuant to Section 1701.95 of the Revised
Code.
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(3) To the extent that a director, trustee, officer,
employee, member, manager, or agent has been successful on the
merits or otherwise in defense of any action, suit, or
proceeding referred to in division (E)(1) or (2) of this
section, or in defense of any claim, issue, or matter therein,
he shall be indemnified against expenses, including attorney's
fees, actually and reasonably incurred by him in connection with
the action, suit, or proceeding.
(4) Any indemnification under division (E)(1) or (2) of
this section, unless ordered by a court, shall be made by the
corporation only as authorized in the specific case, upon a
determination that indemnification of the director, trustee,
officer, employee, member, manager, or agent is proper in the
circumstances because he has met the applicable standard of
conduct set forth in division (E)(1) or (2) of this section.
Such determination shall be made as follows:
(a) By a majority vote of a quorum consisting of directors
of the indemnifying corporation who were not and are not parties
to or threatened with the action, suit, or proceeding referred
to in division (E)(1) or (2) of this section;
(b) If the quorum described in division (E)(4)(a) of this
section is not obtainable or if a majority vote of a quorum of
disinterested directors so directs, in a written opinion by
independent legal counsel other than an attorney, or a firm
having associated with it an attorney, who has been retained by
or who has performed services for the corporation or any person
to be indemnified within the past five years;
(c) By the shareholders;
(d) By the court of common pleas or the court in which the
action, suit, or proceeding referred to in division (E)(1) or
(2) of this section was brought.
Any determination made by the disinterested directors under
division (E)(4)(a) or by independent legal counsel under
division (E)(4)(b) of this section shall be promptly
communicated to the person who threatened or brought the action
or suit by or in the right of the corporation under division
(E)(2) of this section, and, within ten days after receipt of
such notification, such person shall have the right to petition
the court of common pleas or the court in which such action or
suit was brought to review the reasonableness of such
determination.
(5)(a) Unless at the time of a director's act or omission
that is the subject of an action, suit, or proceeding referred
to in division (E)(1) or (2) of this section, the articles or
the regulations of a corporation state, by specific reference to
this division, that the provisions of this division do not apply
to the corporation and unless the only liability asserted
against a director in an action, suit, or proceeding referred to
in division (E)(1) or (2) of this section is pursuant to section
1701.95 of the Revised Code, expenses, including attorney's
fees, incurred by a director in defending this action, suit, or
proceeding shall be paid by the corporation as they are
incurred, in advance of the final disposition of the action,
suit, or proceeding, upon receipt of an undertaking by or on
behalf of the director in which he agrees to do both of the
following:
(i) Repay such amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that
his action or failure to act involved an act or omission
undertaken with deliberate intent to cause injury to the
corporation or undertaken with reckless disregard for the best
interests of the corporation;
(ii) Reasonably cooperate with the corporation concerning
the action, suit, or proceeding.
(b) Expenses, including attorney's fees, incurred by a
director, trustee, officer, employee, member, manager, or agent
in defending any action, suit, or proceeding referred to in
division (E)(1) or (2) of this section, may be paid by the
corporation as they are
II-3
<PAGE> 17
incurred, in advance of the final disposition of the action,
suit, or proceeding, as authorized by the directors in the
specific case, upon receipt of an undertaking by or on behalf of
the director, trustee, officer, employee, member, manager, or
agent to repay such amount, if it ultimately is determined that
he is not entitled to be indemnified by the corporation.
(6) The indemnification authorized by this section shall
not be the exclusive of, and shall be in addition to, any other
rights granted to those seeking indemnification under the
articles, the regulations, any agreement, a vote of shareholders
or disinterested directors, or otherwise, both as to action in
their official capacities and as to action in another capacity
while holding their offices or positions, and shall continue as
to a person who ceased to be a director, trustee, officer,
employee, member, manager, or agent and shall inure to the
benefit of their heirs, executors, and administrators of such a
person.
(7) A corporation may purchase and maintain insurance or
furnish similar protection, including, but not limited to, trust
funds, letters of credit, or self-insurance, on behalf of or for
any person who is or was a director, officer, employee, or agent
of the corporation, or is or was serving at the request of the
corporation as a director, trustee, officer, employee, member,
manager, or agent of another corporation, domestic or foreign,
nonprofit or for profit, a limited liability company, or a
partnership, joint venture, trust or other enterprise, against
any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or
not the corporation would have the power to indemnify him
against such liability under this section. Insurance may be
purchased from or maintained with a person in which the
corporation has a financial interest.
(8) The authority of a corporation to indemnify persons
pursuant to division (E)(1) or (2) of this section does not
limit the payment of expenses as they are incurred,
indemnification, insurance, or other protection that may be
provided pursuant to divisions (E)(5), (6), and (7) of this
section. Divisions (E)(1) and (2) of this section do not create
any obligation to repay or return payments made by the
corporation pursuant to division (E)(5), (6), or (7).
(9) As used in division (E) of this section, "corporation"
includes all constituent entities in a consolidation or merger
and the new or surviving corporation, so that any person who is
or was a director, officer, employee, trustee, member, manager,
or agent of such a constituent entity, or is or was serving at
the request of such constituent entity as a director, trustee,
officer, employee, member, manager, or agent of another
corporation, domestic or foreign, nonprofit or for profit, a
limited liability company, or a partnership, joint venture,
trust, or other enterprise, shall stand in the same position
under this section with respect to the new or surviving
corporation as he would if he had served the new or surviving
corporation in the same capacity."
Registrant maintains and pays the premiums on contracts insuring Registrant
(with certain exclusions) against any liability to directors and officers it may
incur under the above provisions for indemnification and insuring each director
and officer of Registrant (with certain exclusions) against liability and
expense, including legal fees, which he or she may incur by reason of his or her
relationship to Registrant, even if Registrant does not have the obligation or
right to indemnify such director or officer against such liability or expense.
Reference is made to Section 7 of the form of Underwriting Agreement, filed
as Exhibit 1.1 to this Registration Statement, for the Registrant's and the
Underwriters' respective agreements to indemnify each other against certain
civil liabilities, including liabilities under the Securities Act, and to
provide contribution in circumstances where indemnification is available.
II-4
<PAGE> 18
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
ITEM NUMBER DESCRIPTION
- ------- ------- ------------------------------------------------------------------------
<C> <S> <C>
1 1.1 Form of Underwriting Agreement.
4 4.1(A) Certificate of Amended Articles of Incorporation of Registrant, dated
December 20, 1954, and Certificate of Amendment to Amended Articles of
Incorporation of Registrant, dated April 6, 1993 (two documents
comprising Registrant's Articles of Incorporation as amended to date).
4.1(B) Code of Regulations, adopted November 22, 1955, and amended April 5,
1965, April 7, 1980, April 6, 1981 and April 13, 1987.
4.2 Form of Indenture, dated as of March 15, 1996, between Registrant and
Chemical Bank.
5 5.1 Opinion of C. Thomas Harvie, Esq., Vice President and General Counsel of
Registrant, as to the validity of the Debt Securities being offered.
12 12.1 Computation of Ratios of Earnings to Fixed Charges.
23 23.1 The consent of Price Waterhouse LLP, independent accountants, to the
incorporation by reference in this Registration Statement on Form S-3 of
their report dated February 1, 1996 appearing at page 30 of Registrant's
Annual Report on Form 10-K for the year ended December 31, 1995.
23.2 The consent of C. Thomas Harvie, Esq., Vice President and General
Counsel of Registrant, is included in his opinion filed as Exhibit 5.1
to this Registration Statement.
24 24.1 Power of Attorney, dated January 9, 1996, authorizing Robert W. Tieken,
C. Thomas Harvie, Richard W. Hauman, George E. Strickler and James
Boyazis, or any one of them, to sign this Registration Statement on
behalf of the Registrant and certain of the directors and officers of
Registrant.
25 25.1 Statement of Eligibility of Chemical Bank on Form T-1 relating to the
Indenture, dated as of March 14, 1996, between Registrant and Chemical
Bank.
</TABLE>
ITEM 17. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof, which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. 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
change in volume and price represent no more than a 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table set forth in the effective registration
statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement, including (but not limited to) any addition or deletion of a
managing underwriter;
provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant
pursuant to
II-5
<PAGE> 19
Section 13 or Section 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 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.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
D. The undersigned Registrant 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 a
part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act 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-6
<PAGE> 20
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Akron, State of Ohio, on the 25th day of March, 1996.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ ROBERT W. TIEKEN
------------------------------------
Robert W. Tieken,
Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------------------------------- ----------------------- -----------------------------------
<S> <C> <C>
Samir F. Gibara.................. President and Chief
Executive Officer and a
Director (Principal
Executive Officer)
George E. Strickler.............. Vice President and By: /s/ ROBERT W. TIEKEN
Comptroller (Principal -----------------------------------
Accounting Officer) Robert W. Tieken
John G. Breen.................... Director Signing individually as Executive
William E. Butler................ Director Vice President (Principal Financial
Thomas H. Cruikshank............. Director Officer) of Registrant and as
Stanley C. Gault................. Director Attorney-in-Fact for the directors
William J. Hudson, Jr............ Director and officers whose names appear
Gertrude G. Michelson............ Director opposite
Steven A. Minter................. Director
Agnar A. Pytte................... Director March 25, 1996
George H. Schofield.............. Director
William C. Turner................ Director
</TABLE>
II-7
<PAGE> 21
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT EXHIBIT
ITEM NUMBER DESCRIPTION
- ------- ------ -------------------------------------------------------------------------
<C> <C> <S>
1 1.1 Form of Underwriting Agreement.
4 4.1(A) Certificate of Amended Articles of Incorporation of Registrant, dated
December 20, 1954, and Certificate of Amendment to Amended Articles of
Incorporation of Registrant, dated April 6, 1993 (two documents
comprising Registrant's Articles of Incorporation as amended to date).
4.1(B) Code of Regulations, adopted November 22, 1955, and amended April 5,
1965, April 7, 1980, April 6, 1981 and April 13, 1987.
4.2 Form of Indenture, dated as of March 15, 1996, between Registrant and
Chemical Bank.
5 5.1 Opinion of C. Thomas Harvie, Esq., Vice President and General Counsel of
Registrant, as to the validity of the Debt Securities being offered.
12 12.1 Computation of Ratios of Earnings to Fixed Charges.
23 23.1 The consent of Price Waterhouse LLP, independent accountants, to the
incorporation by reference in this Registration Statement on Form S-3 of
their report dated February 1, 1996 appearing at page 30 of Registrant's
Annual Report on Form 10-K for the year ended December 31, 1995.
23.2 The consent of C. Thomas Harvie, Esq., Vice President and General Counsel
of Registrant, is included in his opinion filed as Exhibit 5.1 to this
Registration Statement.
24 24.1 Power of Attorney, dated January 9, 1996, authorizing Robert W. Tieken,
C. Thomas Harvie, Richard W. Hauman, George E. Strickler and James
Boyazis, or any one of them, to sign this Registration Statement on
behalf of the Registrant and certain of the directors and officers of
Registrant.
25 25.1 Statement of Eligibility of Chemical Bank on Form T-1 relating to the
Indenture, dated as of March 14, 1996, between Registrant and Chemical
Bank.
</TABLE>
<PAGE> 1
Exhibit 1.1
THE GOODYEAR TIRE & RUBBER COMPANY
Underwriting Agreement
----------------------
New York, New York
To the Representative(s)
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Ladies and Gentlemen:
The Goodyear Tire & Rubber Company, an Ohio corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters"), for whom you (the "Representatives") are acting as
representatives, the principal amount of its securities identified in Schedule
I hereto (the "Securities"), to be issued under an indenture (the "Indenture")
dated as of March 15, 1996, between the Company and Chemical Bank, as trustee
(the "Trustee"). If the firm or firms listed in Schedule II hereto include
only the firm or firms listed in Schedule I hereto, then the terms
"Underwriters" and "Representatives", as used herein, shall each be deemed to
refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to, and agrees with, each Underwriter as set forth below in this
Section 1. Certain terms used in this Section 1 are defined in paragraph (c)
hereof.
(a) If the offering of the Securities is a Delayed Offering
(as specified in Schedule I hereto), paragraph (i) below is applicable
and, if the offering
<PAGE> 2
of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use
of Form S-3 under the Securities Act of 1933 (the "Act") and
has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of
which is set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration under the Act
of the offering and sale of the Securities. The Company may
have filed one or more amendments thereto, and may have used a
Preliminary Final Prospectus, each of which has previously
been furnished to you. Such registration statement, as so
amended, has become effective. The offering of the Securities
is a Delayed Offering and, although the Basic Prospectus may
not include all the information with respect to the Securities
and the offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus, the Basic
Prospectus includes all such information required by the Act
and the rules thereunder to be included therein as of the
Effective Date. The Company will next file with the
Commission pursuant to Rules 415 and 424(b)(2) or (5) a final
supplement to the form of prospectus included in such
registration statement relating to the Securities and the
offering thereof. As filed, such final prospectus supplement
shall include or incorporate by reference to other documents
all required information with respect to the Securities and
the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(ii) The Company meets the requirements for the use
of Form S-3 under the Act and has filed with the Commission a
registration statement (the
<PAGE> 3
3
file number of which is set forth in Schedule I hereto) on
such Form, including a basic prospectus, for registration
under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto,
including a Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company will next file
with the Commission either (x) a final prospectus supplement
relating to the Securities in accordance with Rules 430A and
424(b)(1) or (4), or (y) prior to the effectiveness of such
registration statement, an amendment to such registration
statement, including the form of final prospectus supplement.
In the case of clause (x), the Company has included in such
registration statement, as amended at the Effective Date, all
information (other than Rule 430A Information) required by the
Act and the rules thereunder to be included in the Final
Prospectus with respect to the Securities and the offering
thereof. As filed, such final prospectus supplement or such
amendment and form of final prospectus supplement shall
contain all Rule 430A Information, together with all other
such required information, with respect to the Securities and
the offering thereof and, except to the extent the
Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to
you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Final Prospectus is first filed (if required) in
accordance with Rule 424(b) and on the Closing Date, the Final
Prospectus (and any supplement thereto) will, comply in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934 (the "Exchange Act") and the Trust Indenture Act
of 1939 (the "Trust Indenture Act") and the respective rules
thereunder; on the Effective Date, the Registration Statement did not
or will not contain any untrue
<PAGE> 4
4
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the Effective Date and on the
Closing Date the Indenture did or will comply in all material respects
with the requirements of the Trust Indenture Act and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not
filed pursuant to Rule 424(b), did not or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement or
the Final Prospectus (or any supplement thereto) in reliance upon and
in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives
specifically for inclusion in the Registration Statement or the Final
Prospectus (or any supplement thereto).
(c) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus"
shall mean the prospectus referred to in paragraph (a) above contained
in the Registration Statement at the Effective Date including, in the
case of a Non-Delayed Offering, any Preliminary Final Prospectus.
"Preliminary Final Prospectus" shall mean any preliminary prospectus
supplement to the Basic Prospectus which describes the Securities and
the offering thereof and is used prior to filing of the Final
Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the
<PAGE> 5
5
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time, together with the Basic Prospectus or, if, in the case
of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the
Registration Statement at the Effective Date. "Registration
Statement" shall mean the registration statement referred to in
paragraph (a) above, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended. Such term
shall include any Rule 430A Information deemed to be included therein
at the Effective Date as provided by Rule 430A. "Rule 415", "Rule
424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulation under the Act. "Rule 430A Information" means information
with respect to the Securities and the offering thereof permitted to
be omitted from the Registration Statement when it becomes effective
pursuant to Rule 430A. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the
Effective Date of the Registration Statement or the issue date of the
Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or
the Final Prospectus shall be deemed to refer to and include the
filing of any document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus,
as the case may be, deemed to be incorporated therein by reference. A
"Non-Delayed Offering" shall mean an offering of securities which is
intended to commence promptly after the effective date of a
registration statement, with the result that, pursuant to Rules 415
and 430A, all information (other
<PAGE> 6
6
than Rule 430A Information) with respect to the securities so offered
must be included in such registration statement at the effective date
thereof. A "Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly after the
effective date of a registration statement, with the result that only
information required pursuant to Rule 415 need be included in such
registration statement at the effective date thereof with respect to
the securities so offered. Whether the offering of the Securities is
a Non-Delayed Offering or a Delayed Offering shall be set forth in
Schedule I hereto.
2. PURCHASE AND SALE. Subject to the terms and conditions
and in reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
set forth in Schedule I hereto the principal amount of the Securities set forth
opposite such Underwriter's name in Schedule II hereto, except that, if
Schedule I hereto provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of Securities to be
purchased by the Underwriters shall be as set forth in Schedule II hereto less
the respective amounts of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein sometimes called the
"Underwriters' Securities" and Securities to be purchased pursuant to Delayed
Delivery Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the Underwriters are
authorized to solicit offers to purchase Securities from the Company pursuant
to delayed delivery contracts ("Delayed Delivery Contracts"), substantially in
the form of Schedule III hereto but with such changes therein as the Company
may authorize or approve. The Underwriters will endeavor to make such
arrangements and, as compensation therefor, the Company will pay to the
Representatives, for the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal amount of the
Securities for which Delayed Delivery Contracts are made. Delayed Delivery
Contracts are to be with institutional investors, including commercial and
savings banks, insurance companies, pension funds, investment companies and
educational and charitable institutions. The Company will enter into Delayed
Delivery Contracts in all
<PAGE> 7
7
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility
in respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the
principal amount of Securities set forth opposite the name of such Underwriter
bears to the aggregate principal amount set forth in Schedule II hereto, except
to the extent that you determine that such reduction shall be otherwise than in
such proportion and so advise the Company in writing; PROVIDED, HOWEVER, that
the total principal amount of Securities to be purchased by all Underwriters
shall be the aggregate principal amount set forth in Schedule II hereto less
the aggregate principal amount of Contract Securities.
3. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwriters' Securities shall be made on the date and at the time specified in
Schedule I hereto (or such later date not later than five business days after
such specified date as the Representatives shall designate), which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 8 hereof (such date and time of delivery and payment
for the Underwriters' Securities being herein called the "Closing Date").
Payment for the Underwriters' Securities shall be made by certified or official
bank check or checks payable to the order of the Company, or by wire transfer
if so specified in Schedule I, in the funds and at the time and place set forth
in Schedule I, upon delivery to the Representatives for the respective accounts
of the several Underwriters of the Underwriters' Securities. Unless otherwise
specified in Schedule I, the Underwriters' Securities will be represented by
one or more definitive global Securities in book-entry form which will be
deposited by or on behalf of the Company with The Depository Trust Company (the
"DTC") or its designated custodian. The Company will deliver the Underwriters'
Securities to the Representatives for the account of each Underwriter by
causing DTC to credit the Underwriters' Securities to the
<PAGE> 8
8
account of the Representatives at DTC. The Company will cause the certificates
representing the Underwriters' Securities to be made available to the
Representatives for checking on the business day prior to the date of delivery
at the office of DTC or its designated custodian.
4. AGREEMENTS. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the Execution Time, and
any amendment thereto, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statement or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Basic
Prospectus unless the Company has furnished you a copy for your review
prior to filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly
advise the Representatives (i) when the Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and any supplement
thereto, shall have been filed with the Commission pursuant to Rule
424(b), (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have
been filed or become effective, (iv) of any request by the Commission
for any amendment of the Registration Statement or supplement to the
Final Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (vi) of the receipt
by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose. The
Company will use its reasonable efforts to prevent the
<PAGE> 9
9
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statement or supplement
the Final Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) prepare and
file with the Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which will correct
such statement or omission or effect such compliance and (ii) supply
any supplemented Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
which will satisfy the provisions of Section 11(a) of the Act and Rule
158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, copies of the
Registration Statement (including exhibits thereto) and, so long as
delivery of a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final Prospectus and the
Final Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate and with respect to which the Company
does not reasonably object, will maintain such qualifications in
effect so long as required for the distribution of the Securities and
will arrange for the determination of the legality
<PAGE> 10
10
of the Securities for purchase by institutional investors.
(f) Until the business date set forth on Schedule I hereto,
the Company will not, without the consent of the Representatives,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company (other than the Securities, commercial paper
borrowings, borrowings under credit facilities in existence on the date
hereof, borrowings from banks that replace indebtedness then
outstanding, or borrowings from banks used to finance working capital
requirements which do not increase consolidated debt by more than 5%,
in each case in the ordinary course of business).
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time and the Closing Date, to
the accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Representatives agree in
writing to a later time, the Registration Statement will become
effective not later than (i) 6:00 PM New York City time, on the date
of determination of the public offering price, if such determination
occurred at or prior to 3:00 PM New York City time on such date or
(ii) 12:00 Noon on the business day following the day on which the
public offering price was determined, if such determination occurred
after 3:00 PM New York City time on such date; if filing of the Final
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement, shall have been
filed in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives
the opinion of either C. Thomas Harvie, Esq., a Vice President and the
General Counsel of the
<PAGE> 11
11
Company or Gerry V. Wittkamper, Esq., an Assistant General Counsel of
the Company, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of Ohio, with full corporate power and authority to own
its properties and conduct its business as described in the
Final Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of
each jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material
business;
(ii) the Company's authorized equity capitalization
is as set forth in the Final Prospectus; the Securities
conform to the description thereof contained in the Final
Prospectus; and, if the Securities are to be listed on any
securities exchange, authorization therefor has been given,
subject to official notice of issuance and evidence of
satisfactory distribution, or the Company has filed a
preliminary listing application and all required supporting
documents with respect to the Securities with such securities
exchange and such counsel has no reason to believe that the
Securities will not be authorized for listing, subject to
official notice of issuance and evidence of satisfactory
distribution;
(iii) the Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance and other laws
now or hereinafter in effect relating to, affecting or
limiting creditors' rights generally, and subject to general
principles of equity (whether considered in a proceeding at
law or in equity) and to the discretion of the court before
which any proceeding may be brought); and the Securities have
been duly authorized and, when executed and authenticated in
accordance with the
<PAGE> 12
12
provisions of the Indenture and delivered to and paid for by
the Underwriters pursuant to this Agreement, in the case of
the Underwriters' Securities, or by the purchasers thereof
pursuant to Delayed Delivery Contracts, in the case of any
Contract Securities, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture, subject to general principles of equity (whether
considered in a proceeding at law or in equity) and to the
discretion of the court before which any proceeding may be
brought;
(iv) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not disclosed in the Registration
Statement, and, to the knowledge of such counsel, there is no
franchise, contract or other document of a character required
to be described in the Registration Statement or Final
Prospectus, or to be filed as an exhibit, which is not
described or filed as required; and, to the knowledge of such
counsel, the descriptions of the legal proceedings and
material contracts included in the Final Prospectus are
accurate in all material respects;
(v) the Registration Statement has become effective
under the Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made
in the manner and within the time period required by Rule
424(b); to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has
been issued, no proceedings for that purpose have been
instituted or threatened, and the Registration Statement and
the Final Prospectus (other than the financial statements and
other financial and statistical information contained therein
as to which such counsel need express no opinion) comply as to
form in all material respects with the
<PAGE> 13
13
applicable requirements of the Act, the Exchange Act and the
Trust Indenture Act and the respective rules thereunder; and
such counsel has no reason to believe that at the Effective
Date the Registration Statement contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading or that the Final
Prospectus includes any untrue statement of a material fact or
omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(vi) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by
the Company;
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required to be
obtained by the Company for the consummation by the Company of
the transactions contemplated herein or in any Delayed
Delivery Contracts, except (i) such as have been obtained
under the Act, (ii) such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters, and (iii)
such other approvals (as may be specified in such opinion) as
have been obtained;
(viii) neither the execution and delivery of the
Indenture, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof or of any
Delayed Delivery Contracts will conflict with, result in a
breach or violation of, or constitute a default under any law
or the charter or by-laws of the Company or the terms of any
indenture or other agreement or instrument known to such
counsel and to which the Company or any of its subsidiaries is
a party or bound or any judgment, order or decree known to
such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency, governmental body or
<PAGE> 14
14
arbitrator having jurisdiction over the Company or any of its
subsidiaries; and
(ix) no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement.
The foregoing opinion may be subject to certain assumptions,
qualifications and exceptions reasonably satisfactory to the
Representatives, and in rendering such opinion, such counsel may rely
(A) as to matters involving the application of laws of any
jurisdiction other than the State of Ohio or the United States, to the
extent deemed proper and specified in such opinion, upon the opinion
of other counsel of good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters (or, on the assumption
that, although contrary to the intent of the parties, the laws of the
State of Ohio are to govern) and (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the
Company and public officials. References to the Final Prospectus in
this paragraph (b) include any supplements thereto at the Closing
Date.
(c) The Representatives shall have received from Cravath,
Swaine & Moore, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and
sale of the Securities, the Indenture, any Delayed Delivery Contracts,
the Registration Statement, the Final Prospectus (together with any
supplement thereto) and other related matters as the Representatives
may reasonably require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement,
the Final Prospectus, any
<PAGE> 15
15
supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Final Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Prospectus
(exclusive of any supplement thereto).
(e) At the Closing Date, Price Waterhouse LLP shall have
furnished to the Representatives a letter or letters (which may refer
to letters previously delivered to one or more of the
Representatives), dated as of the Closing Date, in form and substance
satisfactory to the Representatives, confirming that they are
independent accountants with respect to The Goodyear Tire & Rubber
Company within the meaning of the Act and the Exchange Act and the
respective applicable published rules and regulations thereunder and
that they have performed a review of the unaudited interim financial
information in accordance with Statement of Auditing Standards No. 71
and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules and pro forma financial
statements included or incorporated in the Registration
Statement and the
<PAGE> 16
16
Final Prospectus and reported on by them comply as to form in
all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their limited review in accordance with
standards established by the American Institute of Certified
Public Accountants under Statement of Auditing Standards No.
71 of any unaudited interim financial information as indicated
in their reports, if any, included or incorporated in the
Registration Statement and the Final Prospectus; carrying out
certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which
would not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a reading of
the minutes of the meetings of the stockholders, directors and
any committees of the Company and its subsidiaries the
Representatives may reasonably request; and inquiries of
certain officials of the Company and its subsidiaries who have
responsibility for financial and accounting matters of the
Company and its subsidiaries as to transactions and events
subsequent to the date of the most recent audited financial
statements included or incorporated in the Final Prospectus,
nothing came to their attention which caused them to believe
that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Final Prospectus do not comply as
to form in all material respects with applicable
accounting requirements of the Act and with the
published rules and regulations of the Commission
with respect to financial statements included or
incorporated in quarterly reports on Form 10-Q under
the Exchange Act; and said unaudited financial
statements require modifications that should be made
for such statements to be in conformity with
generally accepted accounting principles applied on a
basis substantially
<PAGE> 17
17
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Final Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated in the
Registration Statement and the Final Prospectus,
there were any changes, at a specified date not more
than five business days prior to the date of the
letter, in the long term debt and capital leases of
the Company and its subsidiaries or capital stock or
capital surplus of the Company or decreases in the
shareholders' equity of the Company or decreases in
working capital of the Company and its subsidiaries
as compared with the amounts shown on the most recent
consolidated balance sheet included or incorporated
in the Registration Statement and the Final
Prospectus, or for the period from the date of the
most recent financial statements included or
incorporated in the Registration Statement and the
Final Prospectus to such specified date there were
any decreases, as compared with the corresponding
period in the preceding year or the preceding quarter
in net sales or income before income taxes or in
total or per share amounts of net income of the
Company and its subsidiaries, except in all instances
for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an
explanation by the Company as to the significance
thereof unless said explanation is not deemed
necessary by the Representatives;
(3) the amounts included in any unaudited
"capsule" information included or incorporated in the
Registration Statement and the Final Prospectus do
not agree with the amounts set forth in the unaudited
financial statements for the same periods or were not
determined on a basis substantially consistent with
that of the corresponding
<PAGE> 18
18
amounts in the audited financial statements included
or incorporated in the Registration Statement
and the Final Prospectus; or
(4) the information included in the
Registration Statement and Final Prospectus in
response to Regulation S- K, Item 301 (Selected
Financial Data), Item 302 (Supplementary Financial
Information), Item 402 (Executive Compensation), and
Item 503 (Ratio of Earnings to Fixed Charges) is not
in conformity with the applicable disclosure
requirements of Regulation S-K;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Final Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in Items 1, 6 and 7 of the Company's Annual
Report on Form 10-K, incorporated in the Registration
Statement and the Prospectus, and the information included in
the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated
in the Company's Quarterly Reports on Form 10-Q, incorporated
in the Registration Statement and the Final Prospectus, agrees
with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation;
and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and the
Final Prospectus, on the basis of a reading of the unaudited
pro forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company and
the acquired company who have responsibility for financial and
accounting matters, and proving the arithmetic accuracy of
the application of the pro forma adjustments to the historical
amounts in the pro
<PAGE> 19
19
forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial
statements do not comply in form in all material respects with
the applicable accounting requirements of Rule 11-02 of
Regulation S-X or that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation
of such statements.
References to the Final Prospectus in this paragraph (e)
include any supplement thereto at the date of the letter.
In addition, except as provided in Schedule I hereto, at the
Execution Time, Price Waterhouse LLP shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time, in form
and substance satisfactory to the Representatives, to the effect set forth
above.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been (i)
any change or decrease specified in the letter or letters referred to
in paragraph (e) of this Section 5 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business or
properties of the Company and its subsidiaries the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the judgment
of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt
securities by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act)
or any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not
indicate the direction of the possible change.
<PAGE> 20
20
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request and as may be obtained at a reasonable cost to the Company.
(i) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by
the Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the office of Cravath, Swaine & Moore, counsel for the
Underwriters, at Worldwide Plaza, 825 Eighth Avenue, New York, New York, on the
Closing Date.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 5 hereof is not
satisfied, because of any termination pursuant to Section 9 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees
to indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person who controls any
Underwrit-
<PAGE> 21
21
er within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained or incorporated by reference to other documents in the
registration statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who signs the
Registration Statement, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Representatives
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the
statements set forth in (i) the last paragraph of the cover page of the Final
Prospectus, (ii) in the second and third paragraphs under the heading
"Underwriting" and (iii) in the
<PAGE> 22
22
sixth paragraph under the heading "Plan of Distribution" in any Preliminary
Final Prospectus or the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the documents referred to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such
<PAGE> 23
23
action or (iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company and one or more of
the Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and by the Underwriters from the
offering of the Securities; PROVIDED, HOWEVER, that in no case shall any
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriters shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company and of the Underwriters in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal
to the total net proceeds from the offering (before deducting expenses), and
benefits received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the cover
page of the Final Prospectus. Relative fault shall be determined by reference
to whether any alleged untrue statement or omission relates to information
provided by the Company or the Underwriters. The Company and the Underwriters
agree that it would not be just and equitable if contribution were determined
by pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act and each
director,
<PAGE> 24
24
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
8. DEFAULT BY AN UNDERWRITER. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder and such failure to
purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the
amount of Securities set forth opposite their names in Schedule II hereto bears
to the aggregate amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the
event that the aggregate amount of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the
event of a default by any Underwriter as set forth in this Section 8, the
Closing Date shall be postponed for such period, not exceeding seven days, as
the Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company and
any nondefaulting Underwriter for damages occasioned by its default hereunder.
9. TERMINATION. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been suspended
by the Commission or the New York Stock
<PAGE> 25
25
Exchange, The Chicago Stock Exchange, Incorporated or The Pacific Stock
Exchange, Incorporated or trading in securities generally on the New York Stock
Exchange, the American Stock Exchange or the National Association of Securities
Dealers Automated Quotation National Market System shall have been suspended or
limited or minimum prices shall have been established on either of such
Exchanges or Market System, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis or change in
general economic, political or financial conditions the effect of which on
financial markets is such as to make it, in the judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive
of any supplement thereto).
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 7 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telegraphed and confirmed to them, at the address
specified in Schedule I hereto; or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at 1144 East Market Street, Akron,
Ohio 44316-0001, facsimile number 330-796-8836, attention of the Vice President
and General Counsel.
12. SUCCESSORS. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7 hereof,
and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE
<PAGE> 26
26
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
15. HEADINGS. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
THE GOODYEAR TIRE & RUBBER
COMPANY
Attest: By:
________________________________ ________________________________
Name: Name:
Title: Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:
By:
_____________________
Name:
Title:
<PAGE> 27
27
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE> 28
SCHEDULE I
Underwriting Agreement dated:
Registration Statement No.:
Representative(s):
Title, Purchase Price, Offering Price and Description of Securities:
Title:
Principal amount:
Interest Rate:
Interest Payment Dates:
Maturity:
Purchase price (include accrued
interest or amortization, if
any):
Offering Price:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Funds for, and Method of, Payment of Purchase Price:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering or Non-Delayed Offering]
Delayed Delivery Arrangements:
Fee:
<PAGE> 29
2
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Date referred to in Section 4(f) after which the Company may offer or sell
debt securities issued or guaranteed by the Company without the consent of
the Representative(s):
Modification of items to be covered by the letter from
Price Waterhouse LLP delivered pursuant to
Section 5(e) at the Execution Time:
<PAGE> 30
SCHEDULE II
<TABLE>
<CAPTION>
Underwriters Principal Amount
------------ of Securities to
be Purchased
------------------
<S> <C>
$
$
____________________
Total . . . . . . . . . . . . . . . . . . $
====================
</TABLE>
<PAGE> 31
SCHEDULE III
Delayed Delivery Contract
, 19
[Insert name and address
of lead Representative]
Dear Ladies and Gentlemen:
The undersigned hereby agrees to purchase from
The Goodyear Tire & Rubber Company (the "Company"), and the Company agrees to
sell to the undersigned, on , 19 , (the "Delivery Date"), $
principal amount of the Company's (the
"Securities") offered by the Company's Prospectus dated
, 19 , and related Prospectus Supplement dated , 19 ,
receipt of a copy of which is hereby acknowledged, at a purchase price of %
of the principal amount thereof, plus [accrued interest] [amortization of
original issue discount], if any, thereon from , 19 , to the date of
payment and delivery, and on the further terms and conditions set forth in
this contract.
Payment for the Securities to be purchased by the undersigned
shall be made on or before 11:00 AM, New York City time, on the Delivery Date
to or upon the order of the Company in New York Clearing House (next day)
funds, at your office or at such other place as shall be agreed between the
Company and the undersigned, upon delivery to the undersigned of the Securities
in definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five full
business days prior to the Delivery Date. If no request is received, the
Securities will be registered in the name of the undersigned and issued in a
denomination equal to the aggregate principal amount of Securities to be
purchased by the undersigned on the Delivery Date.
<PAGE> 32
2
The obligation of the undersigned to take delivery of and make
payment for Securities on the Delivery Date, and the obligation of the Company
to sell and deliver Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the
failure thereof) that (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited on the
date hereof, shall not on the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject, and (2) the Company, on or
before the Delivery Date, shall have sold to certain underwriters (the
"Underwriters") such principal amount of the Securities as is to be sold to
them pursuant to the Underwriting Agreement referred to in the Prospectus and
Prospectus Supplement mentioned above. Promptly after completion of such sale
to the Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith. The obligation of the undersigned to take delivery of and make
payment for the Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by the failure of
any purchaser to take delivery of and make payment for the Securities pursuant
to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other
similar contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date
<PAGE> 33
3
first above written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
____________________________
(Name of Purchaser)
By
____________________________
(Signature and Title of
Officer)
_____________________________
(Address)
Accepted:
The Goodyear Tire &
Rubber Company,
By
_______________________
(Authorized Signature)
<PAGE> 1
EXHIBIT 4.1(A)
CERTIFICATE
OF
AMENDED ARTICLES OF INCORPORATION
OF
THE GOODYEAR TIRE & RUBBER COMPANY
E. J. Thomas, President, and Arden E. Firestone, Secretary, of The Goodyear
Tire & Rubber Company, an Ohio corporation, with its principal office located at
Akron, Ohio, do hereby certify that a meeting of the holders of the shares of
Common Stock of said corporation (being the only class of shares outstanding)
entitled to vote on the proposal to adopt the Amended Articles of Incorporation
as contained in the following resolution was duly called and held on the 20th
day of December, 1954, at which meeting a quorum of such shareholders was
present in person or by proxy, and that by the affirmative vote of the holders
of shares entitled under the Articles to exercise at least two-thirds of the
voting power of the corporation on such proposal (the Articles not requiring a
greater proportion of such voting power) the following resolution was adopted:
RESOLVED, That The Goodyear Tire & Rubber Company hereby adopts the
following Amended Articles of Incorporation and that the President or
a Vice President and the Secretary or an Assistant Secretary of this
Corporation are hereby authorized and directed, on behalf of this
Corporation, to sign and file in the Office of the Secretary of State
of the State of Ohio, so as to make such Amended Articles of
Incorporation become effective, a certificate containing a copy of the
resolution adopting such Amended Articles of Incorporation and a
statement of the manner of the adoption thereof:
AMENDED ARTICLES OF INCORPORATION
OF
THE GOODYEAR TIRE & RUBBER COMPANY
---------------
The Goodyear Tire & Rubber Company, a Corporation for profit heretofore
organized under the General Incorporation Laws of the State of Ohio, adopts
these Amended Articles of Incorporation:
FIRST: The name of said Corporation shall be The Goodyear Tire & Rubber
Company.
SECOND: Said Corporation is to be located at Akron in Summit County,
Ohio, and its principal business there transacted.
THIRD: Said Corporation is formed for the following purposes:
(a) To produce, manufacture, purchase, import, or otherwise acquire,
to own, process, operate, develop and use, to sell, lease, exchange, export or
otherwise dispose of or turn to account, and to generally deal in, and to render
any service in respect of: rubber, both natural and synthetic, compounds
thereof, substitutes therefor, substances having properties or
<PAGE> 2
2
uses similar thereto, and articles produced in whole or in part therefrom,
including without limitation tires and tubes of all types and kinds, belts, and
mechanical goods, cotton, rayon and other fibrous materials and articles of
which cotton, rayon or other fibrous materials are a component part, metals,
rims and automotive parts and accessories, guns, ammunition and other articles
useful in the national defense, aircraft and parts and accessories therefor,
and, in general, goods, commodities, and articles of personal property of
whatever nature, and to carry on and conduct the general business of
manufacturing and merchandising.
(b) To establish, maintain, and operate chemical, physical, and other
laboratories and to carry on chemical, physical, and industrial research of
every kind and character as may be necessary, useful or convenient in connection
with any business of the Corporation, and to produce, manufacture, construct,
import, purchase or otherwise acquire, to own, process, develop and use, to
sell, lease, exchange, export or otherwise dispose of or turn to account and
generally to deal in and with articles or substances invented or developed
thereby.
(c) To manufacture, construct, mine, produce, import, purchase, lease or
otherwise acquire, hold, own, use, process, maintain, operate, export, mortgage,
sell, convey, assign and otherwise dispose of, distribute, deal in and turn to
account machinery, apparatus, tools, implements, equipment, materials, supplies,
and other personal property of every kind and character which can or may be
advantageously used, consumed or dealt in by the Corporation in connection with
any business it is authorized to conduct; and, in general, to buy, sell,
produce, manufacture, process, use, export, import, trade in, deal with and turn
to account goods, wares, and merchandise of every class and description.
(d) To purchase, lease or otherwise acquire, own, hold, use, maintain,
operate, cultivate, develop, sell, lease, convey, exchange or otherwise
dispose of real estate, leaseholds, and other interests in real estate, and to
construct, equip, occupy, improve, use, operate, sell, lease, exchange or
otherwise dispose of buildings, factories, hangars, mills, workshops,
machineshops, laboratories, storehouses, offices, residences, stores, hotels,
facilities, and structures of all kinds, necessary, useful or convenient in
connection with any of the businesses or operations of the Corporation.
(e) To secure, register, purchase, lease, license, or otherwise to acquire,
and to hold, own, use, operate, develop, improve, introduce, grant licenses in
respect of, sell, assign, and otherwise dispose of and turn to account, letters
patent of the United States or any foreign country, patent rights, licenses,
privileges, inventions, devices, improvements, formulas, concessions,
processes, secret or otherwise, copyrights, trademarks, trade names and rights
analogous thereto granted by, recognized or otherwise existing under the laws of
the United States or any foreign country.
(f) To borrow money or otherwise use its credit for its corporate purposes,
to issue bonds, debentures, notes and other obligations, secured or unsecured,
from time to time, for moneys borrowed or for property acquired, or for any
other of the purposes of the Corporation, and to secure the same by mortgage,
deed of trust, pledge, or other lien upon any or all of the properties, rights,
privileges or franchises of the Corporation.
(g) To purchase, by subscription or otherwise, or acquire in any manner,
and to sell, negotiate, guarantee, assign, deal in, exchange, transfer, pledge
or otherwise dispose of, shares of the capital stock, scrip, bonds, coupons,
mortgages, debentures, debenture stock, acceptances, drafts, securities, and any
other evidences of indebtedness of, or interest in, other corporations, joint
stock companies or associations, whether public, private or municipal, or of
any corporate body, domestic or foreign, and while the owner thereof, to
<PAGE> 3
3
possess and exercise in respect thereof all the rights, powers, and privileges
of ownership, including but not limited to the right to vote thereon.
(h) To aid, in any manner whatsoever, any corporation, association,
copartnership or individual in whose business the Corporation may be in any way
interested or any of whose properties, including shares of capital stock, bonds
or other obligations or securities, are held by the Corporation or in which it
is in any way interested, and to do any acts or things which are or which may
appear necessary, useful, convenient or appropriate for the preservation,
protection, improvement or enhancement of the value of any such business or
property, or for the promotion of any interests of the Corporation.
(i) To lend money or credit, with or without security, and to guarantee
and become surety for payment of money and the performance of contracts or
obligations of any and all kinds, provided it shall not carry on the business of
an indemnity or a surety company.
(j) To purchase or otherwise acquire the whole or any part of the property,
assets, business, good will, and rights, and to undertake or assume the whole or
any part of the bonds, mortgages, franchises, leases, contracts, indebtedness,
guarantees, liabilities, and obligations of any person, firm or corporation,
and to pay therefor in whole or in part with shares of its own capital stock,
cash, bonds, debentures, notes or other obligations, or evidences of
indebtedness of the Corporation or otherwise; and to hold or in any manner
dispose of any part or all of the property, assets, business, good will, and
right so acquired, and to conduct in any lawful manner the whole or any part of
the business so acquired, and to exercise all the powers necessary or convenient
in and about the management and conduct of such business.
(k) In general, to carry on any lawful business whatsoever in connection
with or incidental to the foregoing, or which has for its object the
promotion, directly or indirectly, of the general interests of the Corporation,
or the protection, improvement, preservation or enhancement of the value of its
properties and rights, and to do whatever it may deem necessary, convenient or
proper for the accomplishment of any one or more of the purposes of the
Corporation, and, to the same extent and as fully as any natural person might
lawfully or could do, to do all and every lawful act and thing, and to enter
into and perform contracts of every kind and description with any person, firm,
association, corporation, municipality, county, state, body politic or
government, or subdivision thereof, without limitation as to amount, necessary,
suitable or convenient for the accomplishment of any of the purposes of the
Corporation or incident to any of the powers hereinbefore enumerated, the
enumeration of specific powers not being a limitation or restriction in any
manner of the general powers of the Corporation.
(l) To do all or any of such acts and things and exercise any of such acts
in any state of the United States, in any district, territory, colony,
protectorate or possession thereof, and in any and all foreign countries, and
to maintain such offices, branches, plants, properties, plantations, mines,
and establishments in any or all thereof that may be deemed advisable by the
Corporation.
FOURTH: The number of shares which the Corporation is authorized to have
outstanding is 15,000,000, all of which shall be Common Stock with a par value
of $5 each (being the shares heretofore authorized as shares with a par value
of $10 each) having the terms and provisions set forth in these Amended Articles
of Incorporation. Each holder of record of Common Stock shall be entitled to one
vote for each share of said Common Stock standing in his name on the books of
the Corporation.
<PAGE> 4
4
No holder of Common Stock, present, past, or future, shall be entitled as
such as a matter of right to subscribe for or purchase any part of not exceeding
500,000 shares of such Common Stock which may, subsequent to October 31, 1954 be
allotted and sold to employees of the Corporation or any of its subsidiaries,
pursuant to such plan or plans for such allotment and sale as the Board of
Directors has determined or may from time to time determine, whether any such
shares of Common Stock shall be issued for cash, property, services or
otherwise.
FIFTH: The total stated capital of the Corporation at the time of adopting
these Amended Articles of Incorporation is $45,532,000.00.
SIXTH: These Amended Articles of Incorporation supersede and take the
place of the heretofore existing Amended Articles of Incorporation, adopted
March 31, 1952, and filed in the Office of the Secretary of the State of Ohio on
April 3, 1952, including all Certificates of Amendment to Amended Articles of
Incorporation subsequently filed in the Office of the Secretary of the State
of Ohio.
IN WITNESS WHEREOF, said E. J. Thomas, President, and Arden E. Firestone,
Secretary, of The Goodyear Tire & Rubber Company, acting for and on behalf of
said corporation, have hereunto subscribed their names and caused the seal of
said corporation to be hereunto affixed this 20th day of December, 1954.
BY E. J. THOMAS
President
(CORPORATE SEAL)
BY ARDEN E. FIRESTONE
Secretary
UNITED STATES OF AMERICA, )
STATE OF OHIO, )
OFFICE OF THE SECRETARY OF STATE. )
I, Ted W. Brown, Secretary of State of the State of Ohio, do hereby certify
that the foregoing is an exemplified copy, carefully compared by me with the
original record now in my official custody as Secretary of State, and found to
be true and correct, of the
CERTIFICATE
OF
AMENDED ARTICLES OF INCORPORATION
OF
THE GOODYEAR TIRE & RUBBER COMPANY
filed in this office on the 30th day of December A. D. 1954 and recorded in
Volume 696, Page 255, of the Records of Incorporations.
WITNESS my hand and official seal, at
Columbus, Ohio, this 30th
day of December A-D. 1954.
TED W. BROWN
Secretary of State
<PAGE> 5
CERTIFICATE OF AMENDMENT
TO
AMENDED ARTICLES OF INCORPORATION
OF
THE GOODYEAR TIRE & RUBBER COMPANY
Hoyt M. Wells, President, and James Boyazis, Secretary, of The Goodyear
Tire & Rubber Company, an Ohio Corporation, with its principal office located at
Akron, Summit County, Ohio, do hereby certify that a meeting of the holders of
the shares of Common Stock of said corporation (being the only class of shares
outstanding) entitling them to vote on the proposal to amend the Amended
Articles of Incorporation thereof, as Contained in the following resolution, was
duly called and held on the 5th day of April, 1993, at which meeting a quorum of
such shareholders was present in person or by proxy, and that by the affirmative
vote of the holders of shares entitled under the Amended Articles of Incorpora-
tion to exercise at least two-thirds of the voting power of the corporation on
such proposal (the Amended Articles of Incorporation not requiring a greater
proportion of such voting power) the following resolution was adopted:
RESOLVED, that The Goodyear Tire & Rubber Company hereby adopts the
following amendment to its Amended Articles of Incorporation and that the
President or a Vice President and the Secretary or an Assistant Secretary of
The Goodyear Tire & Rubber Company are hereby authorized and directed to sign
and file in the office of the Secretary of State of the State of Ohio a
certificate containing a copy of the resolution adopting the amendment and a
statement of the manner of its adoption:
The Amended Articles of Incorporation are hereby amended by striking out
in its entirety Article FOURTH and substituting in lieu thereof the
following:
FOURTH: The maximum number of shares which the Corporation is authorized
to have outstanding is 350,000,000, consisting of 300,000,000 shares of
Common Stock without par value (hereinafter referred to as "Common Stock")
and 50,000,000 shares of Preferred Stock without par value (hereinafter
referred to as "Preferred Stock").
The express terms of the shares of each class are as follows:
PART A
EXPRESS TERMS OF THE COMMON STOCK
Section 1. General.
The Common Stock shall be subject to the express terms of the Preferred
Stock and any series thereof. Each share of Common Stock shall be equal to each
other share of Common Stock. Each holder of record of Common Stock shall be
entitled to one vote for each share of said Common Stock standing in his or her
name on the books of the Corporation upon all matters presented to the
shareholders.
Section 2. Preemptive Rights.
No holder of Common Stock, present, past or future, shall be entitled as such
as a matter of right to subscribe for or purchase any part of any new or
additional issue of stock or of securities of the Corporation convertible into
stock of any class whatsoever, whether now or hereafter authorized, and whether
issued for cash, property, services or otherwise.
1
<PAGE> 6
Section 3. Purchase of Shares by Corporation.
The Corporation is authorized to purchase shares of Common Stock at such
times, in such manner, for such reasons and on such terms and conditions as
shall be deemed appropriate by the Board of Directors.
PART B
EXPRESS TERMS OF THE PREFERRED STOCK
Section 1. Series.
The Preferred Stock may be issued from time to time in one or more series.
All shares of Preferred Stock shall be of equal rank and the express terms
thereof shall be identical, except in respect of the terms that may be fixed by
the Board of Directors as hereinafter provided, and each share of each series
shall be identical with all other shares of such series, except as to the date
from which dividends are cumulative. Subject to the provisions of Sections 2
through 8, inclusive, of this Part B, which shall apply to all Preferred Stock,
the Board of Directors is hereby authorized to cause shares of Preferred Stock
to be issued in one or more series and with respect to each such series to
determine and fix:
(a) The designation of the series, which may be by distinguishing number,
letter or title.
(b) The authorized number of shares constituting the series, which number the
Board of Directors may, except to the extent otherwise provided in the creation
of the series, from time to time increase or decrease, but not below the number
of shares thereof then outstanding.
(c) The rate at which dividends shall be payable on shares of such series.
(d) The dates on which dividends, if declared, shall be payable on shares of
such series and the dates from which dividends shall be cumulative.
(e) The redemption rights and price or prices, if any, for shares of the
series.
(f) The amount, terms, conditions and manner of operation of any retirement
or sinking fund to be provided for the purchase or redemption of shares of the
series.
(g) The amounts payable on shares of the series in the event of any voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation.
(h) Whether the shares of the series shall be convertible into shares of any
other class or series, and, if so, the specification of such other class or
series, the conversion price or prices or rate or rates, any adjustments
thereof, the date or dates as of which such shares shall be convertible and all
other terms and conditions upon which such conversion may be made.
(i) The conditions or restrictions, if any, upon the issue of any additional
shares of the same series or of any other class or series.
The Board of Directors is authorized to adopt from time to time amendments
to the Amended Articles of Incorporation fixing, with respect to each series,
the matters described in clauses (a) to (i), inclusive, of this Section 1.
Section 1-A. Series A $10.00 Preferred Stock, Without Par Value.
A series of Preferred Stock is hereby created having the following terms:
1. Designation. The shares of such series are designated as: "Series A $10.00
Preferred Stock, without par value."
2
<PAGE> 7
2. Authorized Number of Shares - Fractional Shares. The authorized number
of shares constituting the Series A $10.00 Preferred Stock is 3,000,000. Series
A $10.00 Preferred Stock may be issued in fractions of a share which shall
entitle the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A $10.00 Preferred
Stock.
3. Dividends and Distributions. (A) Subject to any prior and superior rights
of the holders of any series of Preferred Stock ranking prior and superior to
the shares of Series A $10.00 Preferred Stock with respect to dividends that may
be authorized by the Amended Articles of Incorporation, the holders of shares of
Series A $10.00 Preferred Stock shall be entitled prior to the payment of any
dividends on shares ranking junior to the Series A $10.00 Preferred Stock to
receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the last day
of January, April, July and October in each year (each such date being referred
to herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A $10.00 Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $10.00 or (b) subject to the
provisions for adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other than a
dividend payable in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend Payment Date,
or, with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A $10.00 Preferred Stock.
In the event the Corporation shall at any time after July 28, 1986 (the "Rights
Declaration Date") (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the Outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount to which holders of shares of Series A $10.00 Preferred Stock were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series A
$10.00 Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent Quarterly
Payment Date, a dividend of $10.00 per share on the Series A $10.00 Preferred
Stock shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares
of Series A $10.00 Preferred Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series A $10.00 Preferred Stock,
unless the date of issue of such shares is prior to the record date for the
first Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the date
of issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A $10.00 Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date.
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<PAGE> 8
(D) Accrued but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series A $10.00 Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Series A $10.00 Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date shall
be no more than 60 days prior to the date fixed for the payment thereof.
(E) Dividends in full shall not be declared or paid or set apart for payment
on the Series A $10.00 Preferred Stock for a dividend period terminating on the
Quarterly Dividend Payment Date unless dividends in full have been declared or
paid or set apart for payment on the Preferred Stock of all series (other than
series with respect to which dividends are not cumulative from a date prior to
such dividend date) for the respective dividend periods terminating on such
dividend date. When the dividends are not paid in full on all series of the
Preferred Stock, the shares of all series shall share ratably in the payment of
dividends, including accumulations, if any, in accordance with the sums which
would be payable on said shares if all dividends were declared and paid in full.
4. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made to
the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A $10.00 Preferred Stock
unless, prior thereto, the holders of shares of Series A $10.00 Preferred Stock
shall have received $10.00 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series A Liquidation Preference"). Following the payment of
the full amount of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series A $10.00
Preferred Stock unless, prior thereto, the holders of shares of Common Stock
shall have received an amount per share (the "Common Adjustment") equal to the
quotient obtained by dividing (i) the Series A Liquidation Preference by (ii)
100 (as appropriately adjusted as set forth in subparagraph (C) below to reflect
such events as stock splits, stock dividends and recapitalizations with respect
to the Common Stock) (such number in clause (ii) is hereinafter referred to as
the "Adjustment Number"). Following the payment of the full amount of the Series
A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A $10.00 Preferred Stock and Common Stock,
respectively, holders of Series A $10.00 Preferred Stock and holders of shares
of Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to 1
with respect to such Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event, however, that there are not sufficient assets available to
permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all other series of Preferred Stock, if any, which
rank on a parity with the Series A $10.00 Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event, however,
that there are not sufficient assets available to permit payment in full of the
Common Adjustment, then such remaining assets shall be distributed ratably to
the holders of Common Stock.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock that were
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<PAGE> 9
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
5. Conversion on Merger, Consolidation, etc. In case the Corporation shall
enter into any merger, consolidation, combination or other transaction in which
the shares of Common Stock are exchanged or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A $10.00 Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the Rights Declaration
Date (i) declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such case the amount
set forth in the preceding sentence with respect to the exchange or change of
shares of Series A $10.00 Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
6. Redemption. The outstanding shares of Series A $10.00 Preferred Stock
shall not be redeemable.
7. Condition to Issuance of any other Series. The Articles of Incorporation
of the Corporation shall not be further amended to provide for the issuance of
any other series of Preferred Stock without the affirmative vote of the holders
of at least two-thirds of the outstanding shares of Series A $10.00 Preferred
Stock, voting separately as one voting group.
Section 2. Dividends.
(a) The holders of Preferred Stock of each series, in preference of the
holders of shares of Common Stock and of any other class of shares ranking
junior to the Preferred Stock, shall be entitled to receive out of any funds
legally available and when and as declared by the Board of Directors dividends
in cash at the rate for such series fixed in accordance with the provisions of
Section 1 of this Part B and no more, payable on the dividend payment dates
fixed for such series. Such dividends shall be cumulative, in the case of
shares of each particular series, from and after the date or dates fixed with
respect to such series. No dividend may be paid upon or declared or set apart
for any series of the Preferred Stock at any time unless at the same time a like
proportionate dividend for the dividend periods terminating on the same date or
any earlier date, ratably in proportion to the respective annual dividend rates,
shall have been paid upon or declared or funds therefor set apart for all shares
of Preferred Stock of all series then issued and outstanding and entitled to
receive such dividend.
(b) So long as any Preferred Stock shall be outstanding, no dividend, except
a dividend payable in Common Stock or other shares ranking junior to the
Preferred Stock, shall be paid or declared or any distribution be made except as
aforesaid on the Common Stock or any other shares ranking junior to the
Preferred Stock, nor shall any shares of Common Stock or any other shares
ranking junior to the Preferred Stock be purchased, retired or otherwise
acquired by the Corporation (except out of the proceeds of the sale of Common
Stock or other shares ranking junior to the Preferred Stock received by the
Corporation on or subsequent to the date on which shares of Preferred Stock are
first issued), unless (i) all accrued and unpaid dividends upon all Preferred
Stock then outstanding payable on all dividend payment dates occurring on or
prior to the date of such
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<PAGE> 10
action shall have been declared and paid or funds sufficient therefor, set
apart, and (ii) at the date of such action there shall be no arrearages with
respect to the redemption of Preferred Stock of any series from any sinking fund
provided for shares of such series in accordance with the provisions of Section
1 of this Part B.
Section 3. Redemption.
(a) Subject to the express terms of each series, the Corporation may from
time to time redeem all or any part of the Preferred Stock of any series at the
time outstanding (i) at the option of the Board of Directors at the applicable
redemption price for such series fixed in accordance with the provisions of
Section 1 of this Part B or (ii) in fulfillment of the requirements of any
sinking fund provided for shares of such series at the applicable sinking fund
redemption price fixed in accordance with the provisions of Section 1 of this
Part B, together in each case with (1) all then unpaid dividends upon such
shares payable on all dividend payment dates for such series occurring on or
prior to the redemption date, plus (2) if the redemption date is not a dividend
payment date for such series, a proportionate dividend, based on the number of
elapsed days, for the period from the day following the most recent such
dividend payment date through the redemption date.
(b) Notice of every such redemption shall be mailed, postage prepaid, to the
holders of record of the Preferred Stock to be redeemed at their respective
addresses then appearing on the books of the Corporation, not less than 30 days
nor more than 60 days prior to the date fixed for such redemption. At any time
after notice has been given as above provided and before the date of redemption
specified in such notice the Corporation may deposit the aggregate redemption
price of the shares of Preferred Stock to be redeemed, together with an amount
equal to the aggregate amount of dividends payable upon such redemption, with
any bank or trust company in New York, New York, having capital and surplus of
more than $100,000,000, named in such notice, and direct that such deposited
amount be paid to the respective holders of the shares of Preferred Stock so to
be redeemed upon surrender of the stock certificate or certificates held by
such holders. After the mailing of such notice and the making of such deposit
of money, such holders shall cease to be shareholders with respect to such
shares and shall have no interest in or claim against the Corporation with
respect to such shares, except only the right to receive such money from such
bank or trust company without interest or to exercise, before the redemption
date, any unexpired privileges of conversion.
(c) In the event less than all of the outstanding shares of any series of
Preferred Stock are to be redeemed, the Corporation shall select pro rata or by
lot the shares so to be redeemed in such manner as shall be prescribed by the
Board of Directors.
(d) If the holders of shares of Preferred Stock which shall have been called
for redemption shall not, within six years after such deposit, claim the amount
deposited for the redemption thereof, any such bank or trust company shall, upon
demand, pay over to the Corporation such unclaimed amounts and thereupon such
bank or trust company and the Corporation shall be relieved of all
responsibility in respect thereof and to such holders.
(e) Any shares of Preferred Stock (i) redeemed by the Corporation pursuant
to the provisions of this Section 3, (ii) purchased and delivered in
satisfaction of any sinking fund requirements provided for shares of any series
of Preferred Stock, (iii) converted in accordance with the express terms of any
such series, or (iv) otherwise acquired by the Corporation, shall resume the
status of authorized and unissued shares of Preferred Stock without serial
designation.
Section 4. Liquidation.
(a) The holders of Preferred Stock of any series shall, in case of voluntary
or involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, be
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entitled to receive in full out of the assets of the Corporation, including its
capital, before any amount shall be paid or distributed among the holders of
shares of Common Stock or any other shares ranking junior to the Preferred
Stock, the amounts fixed with respect to shares of such series in accordance
with Section 1 of this Part B, plus an amount equal to (i) all then unpaid
dividends upon such shares payable on all dividend payment dates for such series
occurring on or prior to the date of payment of the amount due pursuant to such
liquidation, dissolution or winding up, plus (ii) if such date is not a dividend
payment date for such series, a proportionate dividend, based on the number of
elapsed days, for the period from the day following the most recent such
dividend payment date through such date of payment of the amount due pursuant to
such liquidation, dissolution or winding up. In case the net assets of the
Corporation legally available therefor are insufficient to permit the payment
upon all outstanding shares of Preferred Stock of the full preferential amount
to which they are respectively entitled, then such net assets shall be
distributed ratably upon outstanding shares of Preferred Stock in proportion to
the full preferential amount to which each such share is entitled.
After payment to holders of Preferred Stock of the full preferential amounts
as aforesaid, holders of Preferred Stock as such shall have no right or claim to
any of the remaining assets of the Corporation.
(b) The merger or consolidation of the Corporation into or with any other
corporation, or the merger of any other corporation into it, or the sale, lease
or conveyance of all or substantially all the property or business of the
Corporation shall not be deemed to be a dissolution, liquidation or winding up
for the purposes of this Section 4.
Section 5. Voting.
(a) The holders of Preferred Stock shall not be entitled to vote upon matters
presented to the shareholders, except as provided in this Section 5 or as
required by law.
(b) Whenever, and so long as, the Corporation shall be in default in the
payment of the equivalent of six full quarterly dividends (whether or not
consecutive) on any series of Preferred Stock at the time outstanding, whether
or not earned or declared, the holders of Preferred Stock of all series, voting
separately as a class without regard to series, shall be entitled to elect, as
herein provided, two members of the Board of Directors of the Corporation;
provided, however, that the holders of shares of Preferred Stock shall not have
or exercise such special class voting rights except at meetings of such
shareholders for the election of directors at which the holders of not less than
a majority of the outstanding shares of Preferred Stock of all series then
outstanding are present in person or by proxy; and provided further that the
special class voting rights provided for in this paragraph, when the same shall
have become vested, shall remain so vested until all accrued and unpaid
dividends on the Preferred Stock of all series then outstanding shall have been
paid, whereupon the holders of Preferred Stock shall be divested of this special
class voting rights in respect of subsequent elections of directors, subject to
the revesting of such special class voting rights in the event of the occurrence
of the default hereinabove specified in this Subsection (b). In the event of a
default entitling the holders of Preferred Stock to elect two Directors as
specified in this Subsection (b), a special meeting of such holders for the
purpose of electing such directors shall be called by the Secretary of the
Corporation upon written request of, or may be called by, the holders of record
of at least 10% of the shares of Preferred Stock of all series at the time
outstanding, and notice thereof shall be given in the same manner as that
required for the annual meeting of shareholders; provided, however, that the
Corporation shall not be required to call such special meeting if the annual
meeting of shareholders shall be held within 120 days after the date of receipt
of the foregoing written request from the holders of Preferred Stock. At any
meeting at which the holders of Preferred Stock shall be entitled to elect
Directors, the holders of a majority of the then outstanding shares of Preferred
Stock of all series, present
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in person or by proxy, shall be sufficient to constitute a quorum, and the vote
of the holders of a majority of such shares so present at any such meeting at
which there shall be such a quorum shall be sufficient to elect the members of
the Board of Directors which the holders of Preferred Stock are entitled to
elect as hereinabove provided. Notwithstanding any provision of these Amended
Articles of Incorporation or the Code of Regulations of the Corporation or any
action taken by the holders of any class of shares fixing the number of
Directors of the Corporation, the two Directors who may be elected by the
holders of Preferred Stock pursuant to this Subsection (b) shall serve in
addition to any other Directors then in office or proposed to be elected
otherwise than pursuant to this Subsection (b). Nothing in this Subsection (b)
shall prevent any change otherwise permitted in the total number of Directors of
the Corporation or require the resignation of any Director elected otherwise
than pursuant to this Subsection (b). Notwithstanding any classification of the
other Directors of the Corporation, the two Directors elected by the holders of
Preferred Stock shall be elected annually for terms expiring at the next
succeeding annual meeting of shareholders.
(c) The affirmative vote or consent of the holders of at least two-thirds of
the shares of Preferred Stock at the time outstanding, voting or consenting
separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose, shall be necessary to effect any one or more of
the following (but so far as the holders of Preferred Stock are concerned, such
action may be effected with such vote or consent):
(1) Any amendment, alteration or repeal of any of the provisions of the
Amended Articles of Incorporation or of the Code of Regulations of the
Corporation which adversely affects the preferences or voting or other
rights of the holders of Preferred Stock; provided, however, that for the
purpose of this Subsection (c) only, neither the Amendment of the Amended
Articles of Incorporation so as to authorize, create or change the
authorized or outstanding amount of Preferred Stock or of any shares of
any class ranking on a parity with or junior to the Preferred Stock nor
the amendment of the provisions of the Code of Regulations so as to
change the number of directors of the Corporation shall be deemed to
affect adversely the preferences or voting or other rights of the holders
of Preferred Stock; and provided further, that if such amendment,
alteration or repeal affects adversely the preferences or voting or other
rights of one or more but not all series of Preferred Stock at the time
outstanding, only the affirmative vote or consent of the holders of at
least two-thirds of the number of the shares at the time outstanding of
the series so affected shall be required;
(2) The purchase or redemption (for sinking fund purposes or otherwise) of
less than all of the Preferred Stock then outstanding except in
accordance with a stock purchase offer made to all holders of record of
Preferred Stock, unless all dividends on all Preferred Stock then
outstanding for all previous dividend periods shall have been declared
and paid for funds therefor set apart and all accrued sinking fund
obligations applicable thereto shall have been complied with; or
(3) The authorization, creation or the increase in the authorized amount of
any shares of any class or any security convertible into shares of any
class, in either case ranking prior to the Preferred Stock.
(d) The affirmative vote or consent of the holders of at least a majority of
the shares of Preferred Stock at the time outstanding, voting or consenting
separately as a class, given in person or by proxy either in writing or at a
meeting called for the purpose, shall be necessary to effect any one or more of
the following (but so far as the holders of Preferred Stock are concerned, such
action may be effected with such vote or consent):
(1) The sale, lease or conveyance by the Corporation of all or substantially
all of its property or business;
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(2) The consolidation of the Corporation with or its merger into any other
corporation, unless the corporation resulting from such consolidation or
surviving such merger will not have after such consolidation or merger
any class of shares either authorized or outstanding ranking prior to or
on a parity with the Preferred Stock except the same number of shares
ranking prior to or on a parity with the Preferred Stock and having the
same rights and preferences as the shares of the Corporation authorized
and outstanding immediately preceding such consolidation or merger (and
each holder of Preferred Stock immediately preceding such consolidation
or merger shall receive the same number of shares with the same rights
and preferences of the resulting or surviving corporation); or
(3) The authorization of any shares ranking on a parity with the
Preferred Stock or an increase in the authorized number of shares of
Preferred Stock.
(e) Neither the vote, consent nor any adjustment of the voting rights of
holders of shares of Preferred Stock shall be required for an increase in the
number of shares of Common Stock authorized or issued or for stock splits of the
Common Stock or for stock dividends on any class of stock payable solely in
Common Stock; and none of the foregoing actions shall be deemed to affect
adversely the preferences or voting or other rights of Preferred Stock within
the meaning and for the purpose of this Part B.
Section 6. Convertible Series.
If and to the extent that there are created series of Preferred Stock which
are convertible (hereinafter referred to as "convertible series") into shares of
Common Stock or into shares of any other class or series of the Corporation
(hereinafter collectively called "conversion shares"), the following terms and
provisions shall be applicable to all convertible series, except as may be
otherwise expressly provided in the terms of any such series.
(a) The holder of each share of a convertible series may exercise the
conversion privilege in respect thereof by delivering to any transfer agent for
the respective series the certificate for the share to be converted and written
notice that the holder elects to convert such share. Conversion shall be deemed
to have been effected immediately prior to the close of business on the date
when such delivery is made, and such date is referred to in this Section as the
"conversion date". On the conversion date or as promptly thereafter as
practicable, the Corporation shall deliver to the holder of the stock
surrendered for conversion, or as otherwise directed by him in writing, a
certificate for the number of full conversion shares deliverable upon the
conversion of such stock and a check or cash in respect of any fraction of a
share as provided in Subsection (b) of this Section 6. The person in whose name
the stock certificate is to be registered shall be deemed to have become a
holder of the conversion shares of record on the conversion date. No adjustment
shall be made for any dividends on shares of stock surrendered for conversion or
for dividends on the conversion shares delivered on conversion.
(b) The Corporation shall not be required to deliver fractional shares upon
conversion of shares of a convertible series. If more than one share shall be
surrendered for conversion at one time by the same holder, the number of full
conversion shares deliverable upon conversion thereof shall be computed on the
basis of the aggregate number of shares so surrendered. If any fractional
interest in a conversion share would otherwise be deliverable upon the
conversion, the Corporation shall in lieu of delivering a fractional share
therefor make an adjustment therefor in cash at the current market value
thereof, computed (to the nearest cent) on the basis of the closing price of the
conversion share on the last business day before the conversion date.
For the purpose of this Section, the "closing price of the conversion share"
on any business day shall be the last reported sales price regular way per share
on such day, or, in
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case no such reported sale takes place on such day, the average of the reported
closing bid and asked prices regular way, in either case on the New York Stock
Exchange, or, if the conversion shares are not then listed or admitted to
trading on such Exchange, on the principal national securities exchange on which
the conversion shares are listed or admitted to trading as determined by the
Board of Directors, or if not so listed or admitted, the mean between the
average bid and asked prices per conversion shares in the over-the-counter
market as furnished by any member of the National Association of Securities
Dealers or other nationally recognized organization of securities dealers
selected from time to time by the Board of Directors for that purpose; and
"business day" shall be each day on which the New York Stock Exchange or other
national securities exchange or over-the-counter market used for purposes of
the above calculation is open for trading.
(c) Upon conversion of shares of any convertible series, the stated capital
of the conversion shares delivered upon such conversion shall be the aggregate
par value of the shares so delivered having par value, or, in the case of shares
without par value, shall be an amount equal to the stated capital represented by
each such share outstanding at the time of such conversion multiplied by the
number of such shares delivered upon such conversion. The stated capital of
the Corporation shall be correspondingly increased or reduced to reflect the
difference between the stated capital of the shares of the convertible series so
converted and the stated capital of the shares delivered upon such conversion.
(d) In the event of any reclassification or change of outstanding conversion
shares (except a split or combination, or a change in par value, or a change
from par value to no par value, or a change from no par value to par value),
provision shall be made as part of the terms of such reclassification or change
that the holder of each share of each convertible series then outstanding shall
have the right to receive upon the conversion of such share, at the conversion
rate or price which otherwise would be in effect at the time of conversion, with
substantially the same protection against dilution as is provided in the terms
of such convertible series, the same kind and amount of stock and other
securities and property as he would have owned or have been entitled to receive
upon the happening of any of the events described above had such share been
converted immediately prior to the happening of the event.
(e) In the event the Corporation shall be consolidated with or shall merge
into any other corporation, provision shall be made as a part of the terms of
such consolidation or merger whereby the holder of each share of each
convertible series outstanding immediately prior to such event shall
thereafter be entitled to such rights with respect to securities of the
Corporation resulting from such consolidation or merger so that rights of such
holders as specified in the terms of such convertible series shall not be
substantially prejudiced; provided, however, that the provisions of this
Subsection (e) shall be inapplicable if such consolidation or merger shall be
approved by the holders of two-thirds of the outstanding shares of such
convertible series of Preferred Stock.
(f) The Corporation hereby reserves and shall at all times reserve and keep
available free from preemptive rights, out of its authorized but unissued shares
or treasury shares, for the purpose of delivery upon conversion of shares of
each convertible series, such number of conversion shares as shall from time to
time be sufficient to permit the conversion of all outstanding shares of all
convertible series of Preferred Stock.
Section 7. Preemptive Rights -Purchase of Shares by Corporation.
(a) No holder of Preferred Stock, present, past or future, shall be entitled
as such as a matter of right to subscribe for or purchase any part of any new or
additional stock of any series or class or of securities of the Corporation
convertible into stock of any class whatsoever, whether now or hereafter
authorized, and whether issued for cash, property, services or otherwise.
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(b) The Corporation is authorized to purchase any shares of any series of
Preferred Stock from time to time and at such times, in such manner, for such
reasons and on such terms and conditions as shall be deemed appropriate by the
Board of Directors.
Section 8. Definitions.
For the purpose of this Part B:
Whenever reference is made to shares "ranking prior to the Preferred Stock",
such reference shall mean and include all shares of the Corporation in respect
of which the rights of the holders thereof either as to the payment of dividends
or as to distribution in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the Corporation are given preference over the right
of the holders of Preferred Stock; whenever reference is made to shares "on a
parity with the Preferred Stock", such reference shall mean and include all
shares of the Corporation in respect of which the right of the holders thereof
(i) are not given preference over the rights of the holders of Preferred Stock
either as to the payment of dividends or as to distributions in the event of a
voluntary or involuntary liquidation, dissolution or winding up of the
Corporation and (ii) either as to the payment of dividends or as to
distributions in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, or as to both, rank on an equality
(except as to the amounts fixed therefor) with the rights of the holders of
Preferred Stock; and whenever reference is made to shares "ranking junior to the
Preferred Stock" such reference shall mean and include all shares of the
Corporation in respect of which the rights of the holders thereof both as to
the payment of dividends and as to distributions in the event of a voluntary or
involuntary liquidation, dissolution or winding up of the Corporation are junior
and subordinate to the rights of the holders of the Preferred Stock.
IN WITNESS WHEREOF, said Hoyt M. Wells, President, and James Boyazis,
Secretary, of THE GOODYEAR TIRE & RUBBER COMPANY, acting for and on behalf of
said corporation, have hereunto subscribed their names and caused the seal of
said corporation to be hereunto affixed this 6th day of April, 1993.
By /s/ HOYT M. WELLS
--------------------------------
HOYT M. WELLS, PRESIDENT
[SEAL]
By /s/ JAMES BOYAZIS
--------------------------------
JAMES BOYAZIS, SECRETARY
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EXHIBIT 4.1(B)
================================================================================
THE GOODYEAR TIRE & RUBBER COMPANY
-----------------
CODE OF REGULATIONS
-----------------
ADOPTED NOVEMBER 22, 1955
AS AMENDED APRIL 5, 1965,
APRIL 7, 1980, APRIL 6, 1981
AND APRIL 13, 1987
================================================================================
<PAGE> 2
CODE OF REGULATIONS
ARTICLE I
SHAREHOLDERS
SECTION 1. Annual Meeting. The annual meeting of shareholders of the Company
for the election of directors, the consideration of reports to be laid before
such meeting, and the transaction of such other business as may properly be
brought before such meeting, shall be held at the principal office of the
Company in Akron, Ohio, at ten o'clock a.m., or at such other time as may be
designated by the Board of Directors, by the Chairman of the Board, or by the
President and specified in the notice of the meeting, on the first Monday of
April in each year, unless the Board of Directors by a resolution adopted on or
before the first day of March of any year, shall fix a different date, which
date may be any day, other than a Sunday or a legal holiday, during the period
beginning April 1 and ending April 15 of such year, in which event the meeting
shall be held on the date set by such resolution.
SECTION 2. Special Meetings. Special meetings of the shareholders of the
Company may be held on any business day, when called by the Chairman of the
Board, or by the President, or by a Vice President, or by the Board acting at a
meeting, or by a majority of the directors acting without a meeting, or by the
persons who hold twenty-five per cent of all shares outstanding and entitled to
vote thereat. Upon request in writing delivered either in person or by
registered mail to the President or the Secretary by any persons entitled to
call a meeting of shareholders, such officer shall forthwith cause to be given
to the shareholders entitled thereto notice of a meeting to be held on a date
not less than seven or more than sixty days after the receipt of such request,
as such officer may fix. If such notice is not given within thirty days after
the delivery or mailing of such request, the persons calling the meeting may fix
the time of the meeting and give notice thereof in the manner provided by law or
as provided in these Regulations, or cause such notice to be given by any
designated representative. Each special meeting shall be called to convene
between nine o'clock a.m. and four o'clock p.m. and shall be held at the
principal office of the Company in Akron, Ohio, unless the same is called by the
directors, acting with or without a meeting, in which case such meeting may be
held at any place either within or without the State of Ohio designated by the
directors and specified in the notice of such meeting.
SECTION 3. Notice of Meetings. Not less than seven or more than sixty days
before the date fixed for a meeting of shareholders, written notice stating the
time, place, and purposes of such meeting shall be given by or at the direction
of the Secretary or an Assistant Secretary or any other person or persons
required or permitted by these Regulations to give such notice. The notice shall
be given by personal delivery or by mail to each shareholder entitled to notice
of the meeting who is of record as of the day next preceding the day on which
notice is given or, if a record date therefor is duly fixed, of
3
<PAGE> 3
record as of said date; if mailed, the notice shall be addressed to the
shareholders at their respective addresses as they appear on the records of the
Company. Notice of the time, place, and purposes of any meeting of shareholders
may be waived in writing, either before or after the holding of such meeting, by
any shareholder, which writing shall be filed with or entered upon the records
of the meeting.
SECTION 4. Quorum; Adjournment. Except as may be otherwise provided by law
or by the Articles of Incorporation, at any meeting of the shareholders the
holders of shares entitling them to exercise a majority of the voting power of
the Company present in person or by proxy shall constitute a quorum for such
meeting; provided, however, that no action required by law, the Articles, or
these Regulations to be authorized or taken by a designated proportion of the
shares of the Company may be authorized or taken by a lesser proportion; and
provided, further, that the holders of a majority of the voting shares
represented thereat, whether or not a quorum is present, may adjourn such
meeting from time to time; if any meeting is adjourned, notice of such
adjournment need not be given if the time and place to which it is adjourned are
fixed and announced at such meeting.
SECTION 5. Proxies. Persons entitled to vote shares or to act with respect
to shares may vote or act in person or by proxy. The person appointed as proxy
need not be a shareholder.
SECTION 6. Approval and Ratification of Acts of Officers and Board. Except
as otherwise provided by the Articles of Incorporation or by law, any contract,
act, or transaction, prospective or past, of the Company, or of the Board, or of
the officers may be approved or ratified by the affirmative vote at a meeting of
the shareholders, or by the written consent, with or without a meeting, of the
holders of shares entitling them to exercise a majority of the voting power of
the Company, and such approval or ratification shall be as valid and binding as
though affirmatively voted for or consented to by every shareholder of the
Company.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. Number and Classification; Authority. The Board of Directors
shall be composed of fifteen members and shall be divided into three classes
(Class I, Class II and Class III), each class to consist of five directors
unless the number of members of the Board of Directors or of any class is
changed by action of the shareholders taken in accordance with the laws of the
State of Ohio, the Articles of Incorporation and these Regulations or by a
resolution adopted by the affirmative vote of a majority of the directors then
in office. The directors may, from time to time, increase or decrease the number
of directors, provided that the directors shall not increase the number of
directors to more than nineteen persons or decrease the number of directors to
less than eleven persons and, provided further, that the directors shall not
decrease the number of directors in any class to fewer than three persons. Any
director's office that is created by an increase in the number of directors
pursuant to action taken by the Board of Directors
4
<PAGE> 4
may be filled by the vote of a majority of the directors then in office. In the
event of any increase in the number of directors of any class, any additional
director elected to such class shall hold office for a term which shall coincide
with the unexpired term of such class. No reduction in the number of directors
by action taken by the shareholders or the directors shall, of itself, shorten
the term or result in the removal of any incumbent director. Except where the
law, the Articles of Incorporation or these Regulations require action to be
authorized or taken by the shareholders, all of the authority of the Company
shall be exercised by the directors.
SECTION 2. Election of Directors; Term of Office. At each annual meeting of
shareholders, or at a special meeting called for the purpose of electing
directors, each successor to the directors of the class whose term shall expire
in that year shall be elected for a term of three years and shall hold office
until the third annual meeting of shareholders following his or her election as
a director and until his or her successor is elected and qualified, or until his
or her earlier resignation, removal from office or death. At a meeting of
shareholders at which directors of any class are to be elected, only persons
nominated as candidates shall be eligible for election as directors and the
candidates receiving the greatest number of votes shall be elected. A separate
election shall be held for each class of directors at any meeting of
shareholders at which a member of more than one class of directors is being
elected. Directors elected at the first election for Class I directors shall
hold office for a term of three years; directors elected at the first election
for Class II directors shall hold office for a term of two years; and directors
elected at the first election for Class III directors shall hold office for a
term of one year; and in each instance such directors shall hold office until
their successors are elected and qualified.
SECTION 3. Vacancies; Resignations; Removal of Directors. In the event of
the occurrence of any vacancy or vacancies in the Board, however caused, the
remaining directors, though less than a majority of the whole authorized number
of directors, may, by the vote of a majority of their number, fill any such
vacancy for the unexpired term of the class in which such vacancy occurred. Any
director may resign at any time by oral statement to that effect made at a
meeting of the Board or in a writing to that effect delivered to the Secretary,
such resignation to take effect immediately or at such other time as the
director may specify. All the directors, or all the directors of a particular
class, or any individual director, may be removed from office by the vote of the
holders of shares entitling them to exercise two-thirds of the voting power of
the Company entitled to vote to elect directors in place of the director or
directors to be removed, provided that unless all the directors, or all the
directors of a particular class, are removed, no individual director shall be
removed if the votes of a sufficient number of shares are cast against such
director's removal which, if cumulatively voted at an election of all the
directors, or all of the directors of a particular class, as the case may be,
would be sufficient to elect at least one director; provided further, that, if
shareholders do not have the right to vote cumulatively under the law of Ohio or
the Articles of Incorporation, such directors, class of directors or individual
director may be removed from office by the vote of the holders of shares
entitling them to exercise two-thirds of the voting power of the Company
entitled to vote to elect directors in place of the director or directors to be
removed. In the event of any
5
<PAGE> 5
such removal, a new director may be elected at the same meeting for the
unexpired term of each director removed. Failure to elect a director to fill the
unexpired term of any director so removed from office shall be deemed to create
a vacancy in the Board of Directors. Notwithstanding Article X of these
Regulations, the provisions of this Section 3 of Article II may be amended,
repealed or supplemented only by the shareholders at a meeting held for such
purpose by the affirmative vote of the holders of shares entitling them to
exercise two-thirds of the voting power of the Company on such proposal.
SECTION 4. Meetings. Immediately after each annual meeting of the
shareholders, the newly elected directors shall hold an organization meeting for
the purpose of electing officers and transacting any other business. Notice of
such meeting need not be given. Other meetings of the Board may be held at any
time within or without the State of Ohio in accordance with the bylaws,
resolutions, or other action by the Board. Unless otherwise expressly stated in
the notice thereof, any business may be transacted at any meeting of the Board.
SECTION 5. Quorum; Adjournment. A quorum of the Board shall consist of a
majority of the directors then in office; provided that a majority of the
directors present at a meeting duly held, whether or not a quorum is present,
may adjourn such meeting from time to time; if any meeting is adjourned, notice
of adjournment need not be given if the time and place to which it is adjourned
are fixed and announced at such meeting. At each meeting of the Board at which a
quorum is present, all questions and business shall be determined by a majority
vote of those present except as in these Regulations otherwise expressly
provided.
SECTION 6. Committees. The Board may from time to time create or appoint an
Executive Committee, a Finance Committee, a combined Executive and Finance
Committee, and any other committee or committees deemed advisable by the Board
for the proper transaction of the Company's business. Any such committee shall
be composed of not less than three directors (not less than five directors in
the case of an Executive and Finance Committee), each of whom shall serve at the
pleasure of, and be subject at all times to the control and direction of, the
Board. Any such committee shall act only in the intervals between meetings of
the Board and shall have such authority as adheres to the committee by virtue of
the provisions of this section or as may, from time to time, be delegated by the
Board, except that no committee shall have authority to fill vacancies in the
Board or in any committee of the Board. Subject to the aforesaid exceptions, and
in the absence of express delegation of authority by the Board, the Executive
Committee may transact all business and do and perform all things which may or
might be transacted or done by the Board, the Finance Committee shall have the
authority usually and ordinarily possessed by finance committees, and the
combined Executive and Finance Committee shall have the aforesaid authority of
the Executive Committee and of the Finance Committee. Subject to the aforesaid
exceptions with respect to the filling of vacancies in the Board or in any
committee, any person dealing with the Company shall be entitled to rely upon
any act of, or authorization of any act by, such committees, to the same extent
as an act or authorization of the Board. Each committee shall keep full and
complete records of all meetings and actions, which shall be open to inspection
6
<PAGE> 6
by the directors. Unless otherwise ordered by the Board, any such committee may
prescribe its own rules for calling and holding meetings, and for its own method
of procedure, and may act by a majority of its members at a meeting or without a
meeting by a writing or writings signed by all of its members. The directors may
appoint one or more alternate members of any such committee to take the place of
any absent member or members at any meeting of such committee and, if permitted
by law, to join in any action of such committee authorized or taken without a
meeting; each such alternate shall serve at the pleasure of, and be subject at
all times to the control and direction of, the Board.
SECTION 7. Bylaws. The Board may adopt bylaws for its own government, not
inconsistent with the Articles of Incorporation or these Regulations.
ARTICLE III
OFFICERS
SECTION 1. Election and Designation of Officers. The Board, at its
organization meeting, may elect a Chairman of the Board and shall elect a
President, a Secretary, a Treasurer, and, in its discretion, at any meeting of
the Board, may elect one or more Vice Presidents, one or more Assistant
Secretaries, one or more Assistant Treasurers, a Comptroller, one or more
Assistant Comptrollers, and such other officers as the Board may deem necessary.
The Chairman of the Board and the President shall be directors, but no one of
the other officers need be a director. Any two or more of such offices may be
held by the same person, but no officer shall execute, acknowledge, or verify
any instrument in more than one capacity, if such instrument is required to be
executed, acknowledged, or verified by two or more officers.
SECTION 2. Term of Office; Vacancies. The officers of the Company shall
hold office until the next organization meeting of the Board and until their
successors are elected, except in case of resignation, death, or removal. The
Board may remove any officer at any time with or without cause by a two-thirds
vote of the members of the Board then in office. Any vacancy in any office may
be filled by the Board.
SECTION 3. Chairman of the Board. The Chairman of the Board, if any, shall
preside at all meetings of shareholders and of the Board and shall have such
authority and perform such duties as the Board may determine.
SECTION 4. President. Except for meetings at which the Chairman of the
Board, if any, presides in accordance with the preceding Section, the President
shall preside at all meetings of shareholders and of the Board. Subject to
directions of the Board, he shall have general executive supervision over the
property, business, and affairs of the Company.
SECTION 5. Vice Presidents. In case of the absence or disability of the
President, or when circumstances prevent the President from acting, the Vice
Presidents of the Company shall perform all the duties and possess all the
authority of the President, and shall have priority in the performance of such
duties and exercise of such authority in the order of their election by the
Board.
7
<PAGE> 7
SECTION 6. Secretary. The Secretary shall keep the minutes of meetings of
the shareholders and of the Board. He shall keep such books as may be required
by the Board, and shall give notices of shareholders' meetings and of Board
meetings required by law, or by these Regulations, or otherwise.
SECTION 7. Treasurer. The Treasurer shall receive and have in charge all
money, bills, notes, bonds, stocks in other corporations, and similar property
belonging to the Company, and shall do with the same as may be ordered by the
Board. He shall keep accurate financial accounts and hold the same open for the
inspection and examination of the directors.
SECTION 8. Comptroller. The Comptroller shall exercise a general check upon
the disbursement of funds of the Company and shall have general charge and
supervision of the preparation of financial reports.
SECTION 9. Other Officers. The Assistant Secretaries, Assistant Treasurers,
and Assistant Comptrollers, if any, in addition to such authority and duties as
the Board may determine, shall have such authority and perform such duties as
may be directed by their respective principal officers.
SECTION 10. Authority and Duties. The officers shall have such authority
and perform such duties, in addition to those specifically set forth in these
Regulations, as the Board may determine. The Board is authorized to delegate the
duties of any officer to any other officer and generally to control the action
of the officers and to require the performance of duties in addition to those
mentioned herein.
ARTICLE IV
COMPENSATION
The Board, by the affirmative vote of a majority of the directors in
office, and irrespective of any personal interest of any of them, shall have
authority to establish reasonable compensation, which may include pension,
disability and death benefits, for services to the Company by directors and
officers, or to delegate such authority to one or more officers or directors.
ARTICLE V
INDEMNIFICATION
The Company shall indemnify each person who is or was a director, officer
or employee of the Company, or of any other corporation which he served as
such at the request of the Company, against any and all liability and
reasonable expense that may be incurred by him in connection with or resulting
from any claim, action, suit, or proceeding (whether brought by or in the
right of the Company or such other corporation or otherwise), civil or
criminal, or in connection with an appeal relating thereto, in which he may
8
<PAGE> 8
become involved, as a party or otherwise, by reason of his being or having been
a director, officer, or employee of the Company or of such other corporation, or
by reason of any past or future action taken or not taken in his capacity as
such director, officer, or employee, whether or not he continues to be such at
the time such liability or expense is incurred, provided such person acted, in
good faith, in what he reasonably believed to be the best interests of the
Company or such other corporation, as the case may be, and, in addition, in any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. As used in this Article, the terms "liability" and
"expense" shall include, but shall not be limited to, counsel fees and
disbursements and amounts of judgments, fines, or penalties against, and amounts
paid in settlement by, a director, officer, or employee, other than amounts paid
to the Company itself or to such other corporation served at the Company's
request. The termination of any claim, action, suit, or proceeding, civil or
criminal, by judgment, settlement (whether with or without court approval) or
conviction or upon a plea of guilty or of nolo contendere, or its equivalent,
shall not create a presumption that a director, officer, or employee did not
meet the standards of conduct set forth in the first sentence of this Article.
Any such director, officer, or employee referred to in this Article who has been
wholly successful, on the merits or otherwise, with respect to any claim,
action, suit, or proceeding of the character described herein shall be entitled
to indemnification as of right. Except as provided in the preceding sentence,
any indemnification hereunder shall be made at the discretion of the Company,
but only if (1) the Board, acting by a quorum consisting of directors who are
not parties to (or who have been wholly successful with respect to) such claim,
action, suit, or proceeding, shall find that the director, officer, or employee
has met the standards of conduct set forth in the first sentence of this
Article, or (2) independent legal counsel (who may be the regular counsel of the
Company) shall deliver to it their written advice that, in their opinion, such
director, officer, or employee has met such standards. Expense incurred with
respect to any such claim, action, suit, or proceeding may be advanced by the
Company prior to the final disposition thereof upon receipt of an undertaking by
or on behalf of the recipient to repay such amount unless it shall ultimately be
determined that he is entitled to indemnification under this Article. The rights
of indemnification provided in this Article shall be in addition to any rights
to which any person concerned may otherwise be entitled by contract or as a
matter of law, and shall inure to the benefit of the heirs, executors, and
administrators of any such person.
ARTICLE VI
RECORD DATES
For any lawful purpose, including, without limitation, the determination of
the shareholders who are entitled to:
(1) receive notice of or to vote at a meeting of shareholders,
(2) receive payment of any dividend or distribution,
(3) receive or exercise rights of purchase of or subscription for, or
exchange or conversion of, shares or other securities, subject to contract
rights with respect thereto, or
9
<PAGE> 9
(4) participate in the execution of written consents, waivers, or releases,
the Board may fix a record date which shall not be a date earlier than the
date on which the record date is fixed and, in the cases provided for in
clauses (1), (2), and (3) above, shall not be more than sixty days preceding
the date of the meeting of shareholders, or the date fixed for the payment
of any dividend or distribution, or the date fixed for the receipt or the
exercise of rights, as the case may be. The record date for the purpose of
the determination of the shareholders who are entitled to receive notice of
or to vote at a meeting of shareholders shall continue to be the record date
for all adjournments of such meeting, unless the Board or the persons who
shall have fixed the original record date shall, subject to the limitations
set forth in this Article, fix another date, and in case a new record date
is so fixed, notice thereof and of the date to which the meeting shall have
been adjourned shall be given to shareholders of record as of such date in
accordance with the same requirements as those applying to a meeting newly
called. The Board may close the share transfer books against transfers of
shares during the whole or any part of the period provided for in this
Article, including the date of the meeting of shareholders and the period
ending with the date, if any, to which adjourned.
ARTICLE VII
EXECUTION OF DOCUMENTS
Except as otherwise provided in these Regulations, or by specific or
general resolutions of the Board, all documents evidencing conveyances by or
contracts or other obligations of the Company shall be signed by the Chairman of
the Board, if any, the President, or a Vice President, and attested by the
Secretary or an Assistant Secretary.
ARTICLE VIII
CERTIFICATES FOR SHARES
SECTION 1. Form of Certificates and Signatures. Each holder of shares is
entitled to one or more certificates, signed by the Chairman of the Board or the
President or a Vice President and by the Secretary, an Assistant Secretary, the
Treasurer, or an Assistant Treasurer of the Company, which shall certify the
number and class of shares held by him in the Company, but no certificate for
shares shall be executed or delivered until such shares are fully paid. When
such a certificate is countersigned by an incorporated transfer agent or
registrar, the signature of any of said officers of the Company may be
facsimile, engraved, stamped, or printed. Although any officer of the Company
whose manual or facsimile signature is affixed to such a certificate so
countersigned ceases to be such officer before the certificate is delivered,
such certificate nevertheless shall be effective in all respects when delivered.
10
<PAGE> 10
SECTION 2. Transfer of Shares. Shares of the Company shall be transferable
upon the books of the Company by the holders thereof, in person, or by a duly
authorized attorney, upon surrender and cancellation of certificates for a like
number of shares of the same class or series, with duly executed assignment and
power of transfer endorsed thereon or attached thereto, and with such proof of
the authenticity of the signatures to such assignment and power of transfer as
the Company or its agents may reasonably require.
SECTION 3. Lost, Stolen, or Destroyed Certificates. The Company may issue a
new certificate for shares in place of any certificate theretofore issued by it
and alleged to have been lost, stolen, or destroyed, and the Board may, in its
discretion, require the owner, or his legal representatives, to give the Company
a bond containing such terms as the Board may require to protect the Company or
any person injured by the execution and delivery of a new certificate.
SECTION 4. Transfer Agents and Registrars. The Board may appoint, or revoke
the appointment of, transfer agents and registrars and may require all
certificates for shares to bear the signatures of such transfer agents and
registrars, or any of them. The Board shall have authority to make all such
rules and regulations as it may deem expedient concerning the issue, transfer,
and registration of certificates for shares of the Company.
ARTICLE IX
AUTHORITY TO TRANSFER AND VOTE SECURITIES
The Chairman of the Board, the President, and a Vice President of the
Company are each authorized to sign the name of the Company and to perform all
acts necessary to effect a transfer of any shares, bonds, other evidences of
indebtedness or obligations, subscription rights, warrants, and other securities
of another corporation owned by the Company and to issue the necessary powers of
attorney for the same; and each such officer is authorized, on behalf of the
Company, to vote such securities, to appoint proxies with respect thereto, and
to execute consents, waivers, and releases with respect thereto, or to cause any
such action to be taken.
ARTICLE X
AMENDMENTS
The Regulations of the Company may be amended or new Regulations may be
adopted by the shareholders, at a meeting held for such purpose by the
affirmative vote of the holders of shares entitling them to exercise a majority
of the voting power of the Company on such proposal or, without a meeting, by
the written consent of the holders of shares entitling them to exercise
two-thirds of the voting power on such proposal.
11
<PAGE> 1
EXHIBIT 4.2
INDENTURE
BETWEEN
THE GOODYEAR TIRE & RUBBER COMPANY
AND
CHEMICAL BANK,
AS TRUSTEE
DATED AS OF MARCH 15, 1996
DEBT SECURITIES
<PAGE> 2
THE GOODYEAR TIRE & RUBBER COMPANY
Certain Sections of This Indenture Relating to
Sections 310 Through 318, Inclusive, of the
Trust Indenture Act of 1939.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
- --------------------------- -----------------
<S> <C> <C>
310 (a)(1) 6.09
(a)(2) 6.09
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.08
6.11
311 (a) 6.13
(b) 6.13
312 (a) 7.01
7.02(a)
(b) 7.02(b)
(c) 7.02(c)
313 (a) 7.03(a)
(b) 7.03(a)
(c) 7.03(a)
(d) 7.03(b)
314 (a) 7.04
(a)(4) 1.01
10.05
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
315 (a) 6.01
(b) 6.02
(c) 6.01
(d) 6.01
(e) 5.14
316 (a) 1.01
(a)(1)(A) 5.02
5.12
(a)(2)(B) 5.13
(a)(2) Not Applicable
(b) 5.08
(c) 1.04(c)
</TABLE>
<PAGE> 3
2
<TABLE>
<S> <C> <C>
317 (a)(1) 5.03
(a)(2) 5.04
(b) 10.04
318 (a) 1.07
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Compliance Certificates and Opinions . . . . . . . . . . . 7
SECTION 1.03. Form of Documents Delivered to Trustee . . . . . . . . . . 8
SECTION 1.04. Acts of Holders; Record Dates . . . . . . . . . . . . . . 8
SECTION 1.05. Notices, Etc., to Trustee and Company . . . . . . . . . . 10
SECTION 1.06. Notice to Holders; Waiver . . . . . . . . . . . . . . . . 10
SECTION 1.07. Conflict with Trust Indenture Act . . . . . . . . . . . . 11
SECTION 1.08. Effect of Headings and Table of Contents . . . . . . . . . 11
SECTION 1.09. Successors and Assigns . . . . . . . . . . . . . . . . . . 11
SECTION 1.10. Separability Clause . . . . . . . . . . . . . . . . . . . 11
SECTION 1.11. Benefits of Indenture . . . . . . . . . . . . . . . . . . 11
SECTION 1.12. Governing Law . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.13. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.02. Form of Face of Security . . . . . . . . . . . . . . . . . 12
SECTION 2.03. Form of Reverse of Security . . . . . . . . . . . . . . . 13
SECTION 2.04. Form of Legend for Global Securities . . . . . . . . . . . 16
SECTION 2.05. Form of Trustee's Certificate of Authentication . . . . . 16
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount of Securities Issuable; Issuable in Series . . . . 17
SECTION 3.02. Denominations . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 3.03. Execution, Authentication, Delivery and Dating . . . . . . 19
SECTION 3.04. Temporary Securities . . . . . . . . . . . . . . . . . . . 20
SECTION 3.05. Registration, Registration of Transfer and Exchange . . . 20
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities . . . . . 22
SECTION 3.07. Payment of Interest; Interest Rights Preserved . . . . . . 22
SECTION 3.08. Persons Deemed Owners . . . . . . . . . . . . . . . . . . 23
SECTION 3.09. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.10. Computation of Interest . . . . . . . . . . . . . . . . . 24
</TABLE>
(i)
<PAGE> 5
ARTICLE FOUR
SATISFACTION AND DISCHARGE
<TABLE>
<S> <C> <C>
SECTION 4.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . 24
SECTION 4.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . 26
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee . . 26
SECTION 5.04. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . 27
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities . . . . 27
SECTION 5.06. Application of Money Collected . . . . . . . . . . . . . . . . . . . 28
SECTION 5.07. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . 28
SECTION 5.09. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . 29
SECTION 5.10. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . 29
SECTION 5.11. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.12. Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.13. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.14. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.15. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . 30
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . 30
SECTION 6.02. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.03. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities . . . . . . . 31
SECTION 6.05. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.06. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.07. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . 31
SECTION 6.08. Disqualification; Conflicting Interests . . . . . . . . . . . . . . 32
SECTION 6.09. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . 32
SECTION 6.10. Resignation and Removal; Appointment of Successor . . . . . . . . . 32
SECTION 6.11. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . 33
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business . . . . 34
SECTION 6.13. Preferential Collection of Claims Against Company . . . . . . . . . 34
SECTION 6.14. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . 34
</TABLE>
(ii)
<PAGE> 6
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
<TABLE>
<S> <C> <C>
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders . . 36
SECTION 7.02. Preservation of Information; Communications to Holders . . . . 36
SECTION 7.03. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 7.04. Reports by Company . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms . . . . . 37
SECTION 8.02. Successor Corporation to be Substituted . . . . . . . . . . . 37
SECTION 8.03. Opinion of Counsel to be Given Trustee . . . . . . . . . . . . 37
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders . . . . . . 38
SECTION 9.02. Supplemental Indentures With Consent of Holders . . . . . . . 38
SECTION 9.03. Execution of Supplemental Indentures . . . . . . . . . . . . . 39
SECTION 9.04. Effect of Supplemental Indentures . . . . . . . . . . . . . . 39
SECTION 9.05. Conformity with Trust Indenture Act . . . . . . . . . . . . . 39
SECTION 9.06. Reference in Securities to Supplemental Indentures . . . . . . 40
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest . . . . . . . . . . 40
SECTION 10.02. Maintenance of Office or Agency . . . . . . . . . . . . . . . 40
SECTION 10.03. Vacancy in the Office of Trustee . . . . . . . . . . . . . . . 40
SECTION 10.04. Money for Securities Payments to be Held in Trust. . . . . . . 41
SECTION 10.05. Limitation on Secured Indebtedness . . . . . . . . . . . . . . 41
SECTION 10.06. Limitation on Sale and Lease-back Transactions . . . . . . . . 43
SECTION 10.07. Existence . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 10.08. Statement by Officers as to Default. . . . . . . . . . . . . . 43
SECTION 10.09. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . 43
</TABLE>
(iii)
<PAGE> 7
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<TABLE>
<S> <C> <C>
SECTION 11.01. Applicability of Article . . . . . . . . . . . . . . . . . . . 44
SECTION 11.02. Election to Redeem; Notice to Trustee . . . . . . . . . . . . 44
SECTION 11.03. Selection by Trustee of Securities to be Redeemed . . . . . . 44
SECTION 11.04. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 44
SECTION 11.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . 45
SECTION 11.06. Securities Payable on Redemption Date . . . . . . . . . . . . 45
SECTION 11.07. Securities Redeemed in Part . . . . . . . . . . . . . . . . . 45
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article . . . . . . . . . . . . . . . . . . . 46
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities . . . . 46
SECTION 12.03. Redemption of Securities for Sinking Fund . . . . . . . . . . 46
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Applicability of Article; Company's Option To Effect
Defeasance or Covenant Defeasance . . . . . . . . . . . . 46
SECTION 13.02. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . 47
SECTION 13.03. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . 47
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance . . . . . . . 47
SECTION 13.05. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions. . . . . . . 49
SECTION 13.06. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE FOURTEEN
IMMUNITY OF SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01 Exemption from Individual Liability . . . . . . . . . . . . . . 50
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Signatures and Seals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
</TABLE>
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of the Indenture.
(iv)
<PAGE> 8
INDENTURE dated as of March 15, 1996, between THE GOODYEAR TIRE & RUBBER
COMPANY, a corporation duly organized and existing under the laws of the State
of Ohio (herein called the "Company"), having its principal offices at 1144
East Market Street, Akron, Ohio 44316-0001, and CHEMICAL BANK, a banking
corporation duly organized and existing under the laws of the State of New
York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities or of
series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of such
computation;
(d) Unless the context otherwise requires, any reference to an
"Article" or "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(e) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
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<PAGE> 9
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease under which
any Person is at the time liable, at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be paid by such
Person under such lease during the remaining term thereof (excluding renewals
at the option of lessee), discounted from the respective due dates thereof at a
rate per annum equal to the lesser of (i) prevailing market interest rate, at
the date as of which the amount of such discounted net rent is being or to be
determined, on United States Treasury obligations having a maturity
substantially equal to the average term of all payments due under such lease,
plus 3%, or (ii) weighted average rate per annum interest rate borne by
Outstanding Securities at the date as of which the amount of such discounted
net rent is being or to be determined. The net amount of rent required to be
paid under any such lease for any such period shall be the amount of the rent
payable by the lessee, reduced by the amount of any income from any sublease
under such lease, with respect to such period, excluding amounts required to be
paid on account of maintenance and repairs, insurance, taxes, assessments,
water rates and similar charges and contingent rents such as those based on
sales. In the case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the Board of Directors of the
Company or any duly authorized committee of that board or any directors or
officers of the Company to whom such board of directors shall have delegated
its authority to act hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment [or the city in which
the Corporate Trust Office] are authorized or obligated by law or executive
order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President and by its Treasurer, its Comptroller, an
Assistant Comptroller, an Assistant Treasurer, its Secretary or an Assistant
Secretary and delivered to the Trustee.
"Company Sale" has the meaning specified in Section 8.01.
2
<PAGE> 10
"Consolidated Assets of the Company and Subsidiaries" means, as at
the date as of which any determination is being or to be made, the total
consolidated assets of the Company and Subsidiaries as shown on the
consolidated balance sheet of the Company for the then most recently ended
fiscal quarter of the Company (as such consolidated balance sheet is filed with
the Securities and Exchange Commission pursuant to the Exchange Act).
"Consolidated Subsidiary" means, as at the date as of which any
determination is being or to be made, each Subsidiary included in the Company's
consolidated statement of income and consolidated balance sheet for the then
most recently completed fiscal quarter of the Company.
"Corporate Trust Office" means the office of the Trustee in the
Borough of Manhattan, the City of New York, at which at any particular time its
corporate trust business shall be principally administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasible Covenant" has the meaning specified in Section 13.03.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 3.01, which Person shall be a clearing agency registered
under the Exchange Act; and, if at any time there is more than one such Person,
"Depositary", as used with respect to the Securities of any series, shall mean
the Depositary with respect to the Securities of such series.
"Dollars", "dollars", "U.S.$", or "$" shall mean lawful money of the
United States of America.
"Dollar Equivalent" shall mean, in respect of any amount of any
currency, and as at the date and time as of which any determination thereof is
being or to be made, that number of Dollars into which such amount of currency
may be converted on such date, which shall be equal to the product of (a) the
principal amount of such currency (expressed in standard units of such
currency) multiplied by (b) the prevailing spot rate for exchanging such
currency into Dollars as quoted on page "Spot" of the Reuter System (or on a
comparable page of the Telerate System or the Bloomberg Business Information
System) as at such date and time as of which the determination of Dollar
Equivalent is being or to be made, or, if no rate is quoted in respect of such
currency on the Reuter System (or the Telerate System or the Bloomberg Business
Information System, as applicable) display designated page "Spot" (or such
comparable page, as applicable) as at such date and time, the prevailing spot
rate for exchanging such currency into Dollars in the New York City foreign
currency exchange market (or, if a more substantial and liquid market for the
exchange of such currency, the London currency exchange market or the currency
exchange market in the principal financial center of such currency) as at such
date and time.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934 and any
successor act thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.04(c).
"Funded Debt" of any Person means, as at any date as of which any
determination thereof is being or to be made, any Indebtedness of such Person
that by its terms (i) will mature more than one year after the date it was
issued, incurred, assumed or guaranteed by such Person, or (ii) will mature one
year or less after the date it was issued, incurred, assumed or guaranteed
which at such date of determination may be renewed
3
<PAGE> 11
or extended at the election or option of such Person so as to mature more than
one year after such date of determination.
"GAAP" means generally accepted accounting principles in the United
States.
"Global Security" means a Security bearing the legend prescribed in
Section 2.04 (or such legend as may be specified as contemplated by Section
3.01 for such Securities) evidencing all or part of a series of Securities,
authenticated and delivered to the Depositary for such series or its nominee
and registered in the name of such Depositary or nominee.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indebtedness" of any Person means, as at the date as of which any
determination thereof is being or is to be made and in respect of any Person,
(without duplication and excluding in the case of the Company and the
Restricted Subsidiaries intercorporate debt solely between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries) all (i) indebtedness
of such Person for borrowed money, (ii) obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (iii) obligations of such
Person to pay the deferred purchase price of property or services under
conditional sales or other similar agreements which provide for the deferral of
the payment of the purchase price for a period in excess of one year following
the date of such Person's receipt and acceptance of the complete delivery of
such property and/or services, and (iv) obligations of such Person as lessee
under leases which obligations are, in accordance with GAAP, recorded as
capital lease obligations. Whenever any determination of the amount of
Indebtedness is required or permitted to be, or is otherwise being or to be,
made for any purpose under this Indenture, the amount of any such Indebtedness
denominated in any currency other than Dollars shall be calculated at the
Dollar Equivalent of such Indebtedness as at the date as of which such
determination of the amount of Indebtedness is being or to be made, except
that, if all or any portion of the principal amount of any such Indebtedness
which is payable in a currency other than Dollars is hedged into Dollars, the
principal amount of such hedged Indebtedness, or the hedged portion thereof,
shall be deemed to be equal to the amount of Dollars specified in, or
determined pursuant to, the applicable hedging contract.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 3.01.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Lien" means, with respect to an asset of any Person, (a) any
mortgage, deed of trust, lien, pledge, encumbrance, charge or security interest
in or on such asset, other than for (i) taxes or any other obligation or
liability imposed under any law or regulation of the United States of America,
any State thereof or any political subdivision, department, agency, bureau or
instrumentality of any thereof, or (ii) mechanics', materialmen's, repairmen's
or other similar liens incurred in the ordinary couse of business, or (b) the
interest of a vendor or a lessor under any conditional sale agreement, capital
lease or title retention agreement relating to such asset.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
4
<PAGE> 12
"Notice of Default" means a written notice of the kind specified in
Section 5.01(d).
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President or a Vice President, the Chief Financial Officer or
the Comptroller of the Company and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant
to Section 10.08 shall be the principal executive, financial or accounting
officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"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 5.02.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(c) Securities as to which defeasance has been effected pursuant to
Section 13.02; and
(d) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that, in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, (i) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding shall be the amount of the
principal thereof that would be due and payable as of the date of such
determination upon acceleration of the Maturity thereof pursuant to Section
5.02, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the Dollar Equivalent, determined
in the manner provided as contemplated by Section 3.01 on the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar Equivalent on the date of original
issuance of such Security of the amount determined as provided in (i) above) of
such Security and (iii) Securities owned by the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
5
<PAGE> 13
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 3.01.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.06 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 3.01.
"Responsible Officer", when used with respect to the Trustee, means
any officer in the Corporate Trust Office of the Trustee or any other officer
of the Trustee customarily performing functions similar to those performed by
any of the above designated officers and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Property" means any manufacturing plant or equipment
owned by the Company or a Restricted Subsidiary which is used primarily to
manufacture tires or other automotive products and is located within any one or
more of the States of the United States of America, but shall not include (i)
tire retreading plants, facilities or equipment, (ii) manufacturing plants,
facilities or equipment which, in the opinion of the Board of Directors, are
not of material importance to the total business conducted by the Company and
its Subsidiaries, taken as a whole, (iii) plants, facilities or equipment
which, in the opinion of the Board of Directors, are used primarily for
transportation, marketing or warehousing, or (iv) any gas or oil pipeline or
related assets.
"Restricted Subsidiary" means a Subsidiary engaged primarily in
manufacturing tires or other automotive products (i) substantially all the
assets of which are located within, and substantially all the operations of
which are conducted within, any one or more of the States of the United States
of America, and (ii) which has assets in excess of 5% of the total amount of
Consolidated Assets of the Company and Subsidiaries, as shown on the
consolidated balance sheet for the then most recently ended fiscal quarter of
the Company; except that such term shall not include any Subsidiary the
principal business of which is financing accounts receivable, leasing, owning
and developing real estate, engaging in transportation activities, or engaging
in distribution and related activities.
"Secured Indebtedness" means Indebtedness of the Company or any
Restricted Subsidiary secured by a Lien on Restricted Property, but excluding
Indebtedness which is either (i) outstanding on March 15, 1996 and is secured
by one or more Liens existing on that date, including any renewals or
extensions thereof, or (ii) not Funded Debt.
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<PAGE> 14
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.05.
"Shareholders' Equity" means, at any date as of which any
determination thereof is being or to be made, the sum of the stated capital,
capital surplus and retained earnings of the Company and its Subsidiaries at
such date, determined on a consolidated basis in accordance with GAAP.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a Person (other than an individual or a
government or any agency or political subdivision thereof) more than 50% of the
outstanding voting interest of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries, or the Company, in accordance with GAAP, otherwise
consolidates as a Subsidiary of the Company.
"Successor Company" has the meaning specified in Section 8.01.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning specified in Section
13.04.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president"; but shall not
include any assistant vice president.
"Yield to Maturity", when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth in the
prospectus supplement relating thereto, which shall be equal to the yield to
maturity, if any, set forth on the face of such Security.
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company, or an Opinion of
Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirements set forth in this Indenture.
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<PAGE> 15
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by, or covered by, an
opinion of any specified Person, such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion of an officer of the Company may be based
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. ACTS OF HOLDERS; RECORD DATES. (a) Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by agent duly appointed in writing; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
Without limiting the generality of the foregoing, a Holder,
including a Depositary that is a Holder of a Global Security, may make, give or
take, by a proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided or
permitted in this Indenture to be made, given or taken by Holders, and a
Depositary that is a Holder of a Global Security may provide its proxy or
proxies to the beneficial owners of interest in any such Global Security.
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<PAGE> 16
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as a record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
Act, or to vote on any action, authorized or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If not
set by the Company prior to the first solicitation of a Holder of Securities of
such series made by any Person in respect of any such action, or, in the case
of any such vote, prior to such vote, the record date for any such action or
vote shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 7.01) prior to such first
solicitation or vote, as the case may be. With regard to any record date for
action to be taken by the Holders of one or more series of Securities, only the
Holders of Securities of such series on such date (or their duly designated
proxies) shall be entitled to give or take, or vote on, the relevant action.
If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series on such record date, and no other
Holders, shall be entitled to take the relevant action, whether or not such
Holders remain Holders after such record date; provided that no such action
shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Company from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of any Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Company, at its own expense, shall cause notice
of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.06.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
join in the giving or making of (i) any Notice of Default, (ii) any declaration
of acceleration referred to in Section 5.02, (iii) any request to institute
proceedings referred to in Section 5.07(b) or (iv) any direction referred to in
Section 5.12, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, whether or
not such Holders remain Holders after such record date; provided that no such
action shall be effective hereunder unless taken on or prior to the applicable
Expiration Date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date. Nothing in this paragraph shall
be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 1.06.
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<PAGE> 17
With respect to any record date set pursuant to this Section, the
party hereto which set such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day; provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto
in writing, and to each Holder of Securities of the relevant series in the
manner set forth in Section 1.06, on or prior to the existing Expiration Date.
If an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding the foregoing,
no Expiration Date shall be later than the 180th day after the applicable
record date.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents, each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with:
(a) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, or dispatched for
delivery (prepaid by the sender) by an overnight courier service with
written evidence of delivery required, to the Company addressed to it at
the address of its principal office specified in the first paragraph of
this instrument, marked "Attention: Vice President and General Counsel",
or at any other address previously furnished in writing to the Trustee by
the Company.
SECTION 1.06. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for any notice to Holders, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder entitled to receive such notice, at
his address as it appears in the Security Register, not later than the latest
date (if any), and not earlier than the earliest date (if any), prescribed for
the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. 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.
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<PAGE> 18
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust indenture
Act that is required under such Act to be a part of and govern this Indenture,
the latter provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09. SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11. BENEFITS OF INDENTURE. Nothing in this Indenture or
in the Securities, express or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. GOVERNING LAW. This Indenture and the Securities
shall be governed by and construed in accordance with the laws of the State of
New York.
SECTION 1.13. LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date or Stated Maturity of any Security shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of the
Securities of any series which specifically states that such provision shall
apply in lieu of this Section)) payment of interest or principal (and premium,
if any) need not be made at such Place of Payment on such date, but may be made
on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
at the Stated Maturity; provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY. The Securities of each series shall
be in substantially the form set forth in this Article, or in such other form
as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistent herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities
of any series is established by action taken pursuant to a Board Resolution, a
copy of an appropriate record of such action shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or
11
<PAGE> 19
prior to the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in
substantially the form set forth at Section 2.05.
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 officer or officers of the Company executing such Securities,
as evidenced by their execution of such Securities.
SECTION 2.02. FORM OF FACE OF SECURITY.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
THE GOODYEAR TIRE & RUBBER COMPANY
No. $
---------------
THE GOODYEAR TIRE & RUBBER COMPANY, a corporation duly organized and
existing under the laws of the State of Ohio (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to, or registered
assigns, the principal sum of _______________________ Dollars on
______________, ___ [if the Security is to bear interest prior to Maturity,
insert-, and to pay interest thereon from ________________ or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, semiannually on _____________ and _____________ in each year, commencing
______________, at the rate of ____% per annum, until the principal hereof is
paid or made available for payment] [if applicable, insert-, and (to the extent
that the payment of such interest shall be legally enforceable) at the rate of
_ __% per annum on any overdue principal and premium and on any overdue
installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the ____________ or ___________ (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert--
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ______% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date
of such default in payment to the date payment of such principal has been made
or duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of ____% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to
12
<PAGE> 20
the date payment of such interest has been made or duly provided for, and such
interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if
applicable, insert any such] interest on this Security will be made at the
office or agency of the Company maintained for that purpose in such coin or
currency of [the United States of America] [insert other currency, if
applicable] as at the time of payment is legal tender for payment of public and
private debts [if applicable, insert-; provided, however, that at the option of
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
Register].
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated: THE GOODYEAR TIRE & RUBBER COMPANY
By
----------------------------------
[Seal]
Attest:
- -----------------------------------
SECTION 2.03. FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of March 15, 1996 (herein called
the "Indenture"), between the Company and Chemical Bank, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof[, limited in aggregate principal amount to
$ ].
[If applicable, insert--The Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, [if
applicable, insert--(1) on ___________________ in any year commencing with the
year _____and ending with the year _____ through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount,
and (2)] at any time on or after _______________, 19__], as a whole or in part,
at the election of the Company, at the following Redemption Prices (expressed
as percentages of the principal amount): if redeemed [on or before
____________, ___%, and if redeemed] during the 12- month period beginning
__________________ of the years indicated,
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<PAGE> 21
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ----------------- ---- -----------------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert-- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert--the Securities of this series are
subject to redemption upon not less than 30 days' notice by mail, (1) on
___________ in any year commencing with the year ______ and ending with the
year _______________ through operation of the sinking fund for this series at
the Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after _____________], as a whole or in part,
at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning __ ___________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Price Redemption Price for
for Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
- ---- ------------------- -------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
______________ redeem any Securities of this series as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance
with generally accepted financial practice) of less than ____% per annum.]
[The sinking fund for this series provides for the redemption
on ______________ in each year beginning with the year _______ and ending with
the year of ______ [not less than $________________ ("mandatory sinking fund")
and not more than] $_____ ________ aggregate principal amount of Securities of
this series. Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made [if applicable, insert--in the inverse order in which they become due].]
[If the Security is subject to redemption. insert--In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
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<PAGE> 22
[If applicable, insert--This Security is not subject to
redemption prior to maturity.]
[If applicable, insert--The Indenture contains provisions for
defeasance at any time of [(a)] (the entire indebtedness evidenced by this
Security] [and (b)] [certain restrictive covenants,] [in each case] upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security.]
[If the Security is not an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.]
[If the Security is an Original Issue Discount Security,
insert--If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to [--insert formula for
determining the amount]. Upon payment [if applicable, insert--(i)] of the
amount of principal so declared due and payable [if applicable, insert--and
(ii) of interest on any overdue principal and overdue interest (in each case to
the extent that the payment of such interest shall be legally enforceable)],
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the Securities at the time Outstanding of all series to be affected (voting
as a single class). The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
of any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $____________ ____ and any integral
multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
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No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
SECTION 2.04. FORM OF LEGEND FOR GLOBAL SECURITY. Unless
otherwise specified as contemplated by Section 3.01 for the Securities
evidenced thereby, any Global Security authenticated and delivered hereunder
shall bear a legend in substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED,
WHETHER IN WHOLE OR IN PART, TO, OR REGISTERED OR EXCHANGED FOR
SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY
SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR
IN EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY
SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES."
SECTION 2.05. FORM OF TRUSTEE'S CERTIFICATE OF
AUTHENTICATION. The Trustee's certificates of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHEMICAL BANK, as Trustee
by
----------------------------------
Authorized Officer
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ARTICLE THREE
THE SECURITIES
SECTION 3.01. AMOUNT OF SECURITIES ISSUABLE; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is FIVE HUNDRED MILLION DOLLARS ($500,000,000).
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution and, subject to
Section 3.03, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other
series);
(2) the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for
any Securities which, pursuant to Section 3.03, are deemed never to have
been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates 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 any such interest shall
be payable and the Regular Record Date for any interest payable on any
Interest Payment Date;
(6) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which any Securities of the
series may be redeemed, in whole or in part, at the option of the
Company;
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $l,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be other than the currency of the United
States of America, such currency, currencies or currency units and the
manner of determining the equivalent
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thereof in the currency of the United States of America for purposes of
the definition of "Outstanding" in Section 1.01;
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined by
reference to an index or formula, the manner in which such amounts shall
be determined;
(12) if the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the Company
or a Holder thereof, in one or more currencies or currency units other
than that or those in which the Securities are stated to be payable, the
currency, currencies or currency units in which payment of the principal
of and any premium and interest on Securities of such series as to which
such election is made shall be payable, and the periods within which and
the term and conditions upon which such election is to be made;
(13) 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 5.02;
(14) the application, if any, of either or both of Section
13.02 and Section 13.03 to the Securities of the series;
(15) whether the Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in
such case, the Depositary or Depositaries for such Global Security or
Global Securities and any circumstances other than those set forth in
Section 3.05 in which any such Global Security may be transferred to, and
registered and exchanged for Securities registered in the name of, a
Person other than the Depositary for such Global Security or a nominee
thereof and in which any such transfer may be registered;
(16) if other than as specified in Section 5.01, the Events of
Default applicable with respect to the Securities of the series;
(17) if other than as specified in Section 5.02, the Events of
Default the occurrence of which would permit the declaration of the
acceleration of maturity pursuant to Section 5.02;
(18) any addition to or change in the covenants set forth in
Article Ten which applies to Securities of the series, and any other
covenant or warranty included for the benefit of Securities of the series
in addition to (and not inconsistent with) those included in this
Indenture for the benefit of Securities of all series, or any other
covenant or warranty included for the benefit of Securities of the series
in lieu of any covenant or warranty included in this Indenture for the
benefit of Securities of all series, or any provision that any covenant
or warranty included in this Indenture for the benefit of Securities of
all series shall not be for the benefit of Securities of such series, or
any combination of such covenants, warranties or provisions; and
(19) any other term of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 9.01(e)).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
3.03) set forth, or determined in the manner provided, in the Officers'
Certificate referred to above or in any such indenture supplemental hereto.
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If any of the terms of a series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
SECTION 3.02. DENOMINATIONS. The Securities of each series
shall be issuable in registered form without coupons in such denominations as
shall be specified as contemplated by Section 3.01. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series shall be issuable in denominations of $1,000 and any integral multiple
thereof.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman of
the Board, its President or one of its Vice Presidents, under its corporate
seal reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company to the Trustee for authentication, together with a
Company Order for the authentication and delivery of such Securities, and the
Trustee in accordance with the Company Order shall authenticate and deliver
such Securities. If the form or terms of the Securities of the series have
been established in or pursuant to one or more Board Resolutions as permitted
by Sections 2.01 and 3.01, 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
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 2.01, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 3.01, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the
preceding paragraph, if all Securities of a series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.01 or the Company Order
and Opinion of Counsel otherwise required pursuant to such preceding paragraph
at or prior to the time of authentication of each Security of such series
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if such documents are delivered at or prior to the authentication upon original
issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature of an
Authorized Officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by
the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.09, for all purposes of this Indenture
such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.04. TEMPORARY SECURITIES. Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such
series, the temporary Securities of such series may be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series at the office or agency of the Company in a Place of Payment for
that series, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities of any series the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor. Until so exchanged, the
temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series and
tenor.
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE. The Company shall cause to the kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of
any series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like aggregate
principal amount and tenor.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any
registration of transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not
involving any transfer.
The Company shall not be required (a) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption under Section
11.03 and ending at the close of business on the day of such mailing or (b) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part.
If the Securities of any series (or any series and specified
tenor) are to be redeemed in part, the Company shall not be required (i) to
issue, register the transfer of or exchange Securities of that series (or that
series and tenor, as the case may be) during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 11.03 and
ending at the close of business on the day of such mailing, or (ii) to register
the transfer of or exchange any Security so selected for redemption in whole or
in part, except the unredeemed portion of any Security being redeemed in part.
The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Security or a nominee thereof and delivered to such Depositary or
a nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part may
be registered in the name of any Person other than the Depositary for
such Global Security or a nominee thereof unless (A) such Depositary (i)
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing
agency registered under the Exchange Act, (B) there shall have occurred
and be continuing an Event of Default with respect to such Global
Security or (C) there shall exist such circumstances, if any, in addition
to or in lieu of the foregoing as have been specified for this purpose as
contemplated by Section 3.01.
(3) Subject to Clause (2) above, any exchange of a Global
Security for other Securities may be made in whole or in part, and all
Securities issued in exchange for a Global Security or any portion
thereof shall be registered in such name as the Depositary for such
Global Security shall direct.
(4) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section,
Section 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated
and delivered in the form of, and shall be, a Global
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Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof.
Upon the occurrence in respect of any Global Security of any
series of any one or more of the conditions specified in clause (2) of the
preceding paragraph or such other conditions as may be specified as
contemplated by Section 3.01 for such series, such Global Security may be
exchanged for Securities registered in the names of, and the transfer of such
Global Security may be registered to, such Persons (including Persons other
than the Depositary with respect to such series and its nominees) as such
Depositary shall direct. Notwithstanding any other provision of this
Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Global Security shall also
be a Global Security and shall bear the legend specified in Section 2.04 except
for any Security authenticated and delivered in exchange for, or upon
registration of transfer of, a Global Security pursuant to the preceding
sentence.
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN
SECURITIES. If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (b) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this
Section in lieu of any destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Except as otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable,
but is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such
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Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series
at his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) 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 or which such Securities
may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 3.08. PERSONS DEEMED OWNERS. Prior to due
presentment of a Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such Security for the
purpose of receiving payment of principal of and any premium and (subject to
Section 3.07) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.09. CANCELLATION. All Securities surrendered for
payment, redemption, registration of transfer or exchange or for credit against
any sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly canceled by it. The
Company may at any time deliver to the Trustee for cancellation any securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever and may deliver to the Trustee (or to any
other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all securities so delivered shall be promptly canceled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this section, except as expressly permitted by this
Indenture. All canceled Securities held by the Trustee shall be disposed of as
directed by a Company Order, which shall be effected consistent with such
Company Order in accordance
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with the standard procedures of the Trustee. The Trustee shall deliver a
certificate of each such disposal to the Company.
SECTION 3.10. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 3.01 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year of twelve 30- day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon Company Request cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture when:
(a) either:
(i) all Securities theretofore authenticated and
delivered (other than (x) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06 and (y) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.04) have been delivered to the Trustee
for cancellation; or
(ii) all such Securities not theretofore delivered to
the Trustee for cancellation
(A) have become due and payable, or
(B) will become due and payable at their
Stated Maturity within one year, or
(C) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.07,
the obligations of the Trustee to any Authenticating Agent under Section 6.14
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<PAGE> 32
and, if money shall have been deposited with the Trustee pursuant to subclause
(ii) of clause (a) of this Section, the obligations of the Trustee under
Section 4.02 and the last paragraph of Section 10.04 shall survive.
SECTION 4.02. APPLICATION OF TRUST MONEY. Subject to the
provisions of the last paragraph of Section 10.04, all money deposited with the
Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in
accordance with the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT. "Event of Default",
wherever used herein with respect to Securities of any particular series, means
any one of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) default in the due and punctual payment of any installment
of interest upon any of the Securities of that 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 due and punctual payment of the principal
of (or premium, if any, on) any of the Securities of that series at
Maturity; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company set forth in the Securities of that series or in this Indenture
(other than those set forth exclusively in the terms of Securities of any
series other than that series, or those which have been included in this
Indenture for the benefit of Securities of any series other than that
series) continued for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee, or to the
Company and the Trustee by the Holders of at least 25% in principal
amount of the Securities of that series at the time Outstanding, a
written notice specifying such failure and requiring the same to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(e) the entry of a decree or order by a court having
jurisdiction in the premises granting relief in respect of the Company in
an involuntary case under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law adjudging the Company as
being 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 receiver, liquidator, custodian, assignee, trustee,
sequestrator (or other similar official) of the Company, or of
substantially all of its properties, or ordering the winding up or
liquidation of the affairs of the Company, and the continuance of any
such decree or order unstayed and in effect for a period of 90
consecutive days; or
(f) the institution by the Company of proceedings to be
adjudicated as being bankrupt or insolvent, or the consent by the Company
to the institution of bankruptcy or insolvency proceedings against
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it, or the filing by the Company of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law, or the
consent by the Company to the filing of any such petition or to the
appointment of a receiver, liquidator, custodian, assignee, trustee,
sequestrator (or other similar official) of the Company, or of any
substantial part of its properties, or the making by the Company of an
assignment for the benefit of creditors, or the admission by the Company
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of
any such action; or
(g) any other Event of Default provided with respect to
Securities of that series.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If one or more of the Events of Default specified in Section 5.01
shall have occurred and be continuing with respect to any particular series of
Securities, then in each and every such case, unless the principal of all the
Securities of that series shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount of
the Securities of that series then Outstanding hereunder, by notice in writing
to the Company (and to the Trustee if given by Holders), may declare the
principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such amount of principal as may be specified by the terms
of that series) of all the Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable.
Notwithstanding the foregoing, at any time after such a
declaration of acceleration with respect to Securities of any series has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in the principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee, may rescind and annul
such declarations and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities
of that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor
in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and other amounts due to Trustee under
Section 6.07;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of (and premium, if
any) and accrued interest on the Securities of that series which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if:
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(a) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal and any premium and interest and, to
the extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and other amounts due to
Trustee under Section 6.07.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of
any judicial proceeding relative to the Company (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In particular, the
Trustee shall be authorized:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect
of the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may vote on behalf of the
Holders for the election of a trustee in bankruptcy or similar official and may
be a member of a creditors' or other similar committee.
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION
OF SECURITIES. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and
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any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.06. APPLICATION OF MONEY COLLECTED. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
(a) First: To the payment of all amounts due the Trustee
under Section 6.07; and
(b) Second: To the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities in
respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal and any
premium and interest, respectively.
SECTION 5.07. LIMITATION ON SUITS. No Holder of any Security
of any series shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(b) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of and any premium and
(subject to Section 3.07) any interest on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
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SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11. DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder of any Securities to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or By-Law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 5.12. CONTROL BY HOLDERS. The Holders of a majority
in principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that: (a)
such direction shall not be in conflict with any rule of law or with this
Indenture, and (b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS. The Holders of not
less than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series waive
any past default hereunder with respect to such series and its consequences,
except a default: (a) in the payment of the principal of or any premium or
interest on any Security of such series, or (b) in respect of a covenant or
provision hereof which under Article Nine cannot be modified or amended without
the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. UNDERTAKING FOR COSTS. All parties to this
Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit in the manner and to the extent provided in the Trust
Indenture Act, 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 Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding
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in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date);
provided that neither this Section nor the Trust Indenture Act shall be deemed
to authorize any court to require such an undertaking or to make such an
assessment in any suit instituted by the Company.
SECTION 5.15. WAIVER OF STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES. The
duties and responsibilities of the Trustee shall be as provided by the Trust
Indenture Act. Notwithstanding the foregoing, no provision of this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties hereunder, or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
SECTION 6.02. NOTICE OF DEFAULTS. If a default occurs
hereunder with respect to Securities of any series, the Trustee shall give the
Holders of Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however, that in the case
of any default of the character specified in Section 5.01(d) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to Securities of such
series.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
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other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled
to examine the books, records and premises of the Company, personally or by
agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be charged with knowledge of any
default or Event of Default with respect to the Securities of any series for
which it is acting as Trustee unless either (1) a Responsible Officer shall
have actual knowledge of such default or Event of Default or (2) written notice
of such default or Event of Default shall have been given to the Trustee by the
Company or any other obligor on such Securities or by any Holder of such
Securities; and
(i) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion of rights or powers conferred upon it by this Indenture.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained in this Indenture and in the Securities,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company, and the Trustee or any Authenticating Agent assumes
no responsibility for their correctness. Neither the Trustee nor the
Authenticating Agent makes any representation as to the validity or sufficiency
of this Indenture or of the Securities. The Trustee or any Authenticating
Agent shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 6.05. MAY HOLD SECURITIES. The Trustee, any
Authenticating Agent, any Paying Agent, any Security Registrar or any other
agent of the Company, in its individual or any other capacity, may become the
owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such
other agent.
SECTION 6.06. MONEY HELD IN TRUST. Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT. The Company
agrees:
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(a) to pay to the Trustee from time to time reasonable
compensation 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) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS. If
the Trustee has or shall acquire a conflicting interest within the meaning of
the Trust Indenture Act, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000 and its Corporate Trust Office is
in the Borough of Manhattan, New York, New York, or, with the written consent
of the Company, the United States or any State or Territory thereof or the
District of Columbia, and subject to supervision or examination by Federal or
State authority. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Person shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF
SUCCESSOR. (a) No resignation or removal of the Trustee and no appointment of
a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to
the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09
and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged as being bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purposes of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 6.11, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 6.11, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(f) The Company shall give notice of each resignation and
each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any
series to all Holders of Securities of such series in the manner provided in
Section 1.06. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a)
In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every successor Trustee so appointed shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
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(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one of more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIM AGAINST
COMPANY. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT. The
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.06, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication
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and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and
with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first- class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 6.07.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
CHEMICAL BANK, as Trustee
By:
---------------------------------
As Authenticating Agent
By:
---------------------------------
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES
OF HOLDERS. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after each Regular
Record Date for each series of Securities at the time outstanding, a list
for each series of Securities, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities of such
series on such Regular Record Date (or on a date to be determined
pursuant to Section 3.01 for any series of Original Issue Discount
Securities); and
(b) at such other times as the Trustee may request in writing,
within 15 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 10 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar, if it is acting as such.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar, if it is acting as such. The Trustee may destroy any list
furnished to it as provided in Section 7.01 upon receipt of a new list so
furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 7.03. REPORTS BY TRUSTEE. (a) The Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. To the extent that any such
report is required by the Trust Indenture Act with respect to any 12-month
period, such report shall cover the 12-month period ending May 15 and shall be
transmitted by the next succeeding July 15.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 7.04. REPORTS BY COMPANY. The Company shall file
with the Trustee and the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person, or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety to any other Person authorized to acquire and
operate the same (with each of the foregoing transactions referred to as a
"Company Sale"); provided, however, (a) the Person formed by such consolidation
or into which the Company is merged or the Person which acquires by conveyance
or transfer, or which leases, the properties and assets of the Company
substantially as an entirety (the "Successor Company") shall be a corporation,
shall be organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia, and (b) the Company
hereby covenants and agrees that, as a condition precedent to any such
consolidation, merger, sale or conveyance, the due and punctual payment of the
principal of (and premium, if any) and interest, if any, on all of 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 by the Company shall be expressly assumed by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee, by
the Successor Company.
Nothing contained in this Indenture or in any of the
Securities shall prevent the Company from merging into itself any other Person
or acquiring by purchase or otherwise all or any part of the property of any
other Person.
SECTION 8.02. SUCCESSOR CORPORATION TO BE SUBSTITUTED. In
case of any such Company Sale, such Successor Company shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein as the Company. Such Successor Company thereupon may cause to be
signed, and may issue either in its own name or in the name of The Goodyear
Tire & Rubber Company or in the name of any corporation which previously shall
have become the Company in accordance with the provisions of this Article 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 Company instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver, 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 Company thereafter
shall cause to be signed and delivered to the Trustee for that purpose; and,
thereafter the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities. All of the Securities of a
particular series so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities of such series theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date or the execution hereof.
SECTION 8.03. OPINION OF COUNSEL TO BE GIVEN TRUSTEE. The
Trustee, subject to Sections 6.01 and 6.03, may receive an Opinion of Counsel
as conclusive evidence that any such consolidation, merger, sale or conveyance
and any such assumption complies with the provisions of this Article.
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
HOLDERS. Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities; or
(b) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon the
Company; or
(c) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being
included solely for the benefit of such series); or
(d) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not registrable
as to principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
(e) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A) apply
to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor
(B) modify the rights of the Holder of any such Security with respect to
such provision or (ii) shall become effective only when there is no such
Security outstanding; or
(f) to secure the Securities pursuant to the requirements of
Section 10.05; or
(g) to establish the form or terms of Securities of any series
as permitted by Sections 2.01 and 3.01; or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, pursuant
to the requirements of Section 6.11(b); or
(i) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (i) shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF
HOLDERS. With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of all series affected by such
supplemental indenture (voting as a single class), by Act of said Holders
delivered to the Company and the
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Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of each such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or interest
thereon is payable or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the
outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(c) modify any of the provisions of this Section or Section
5.13 or Section 10.09, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby, provided, however, that this clause shall not
be deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 10.09, or the deletion of this proviso, in accordance with
the requirements of Sections 6.11(b) and 9.01(h).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.01) shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes, and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
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SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL
INDENTURES. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of Securities
that it will duly and punctually pay or cause to be paid the principal of and
any premium and interest on the Securities of that series in accordance with
the terms of the Securities and this Indenture. Interest on Securities shall
be payable without presentment of such Securities and only to the registered
Holders thereof determined as provided in Section 3.07. The Company shall have
the right to require a Holder, in connection with the payment of the principal
of and any premium and interest on a Security, to present at the office or
agency of the Company at which such payment is made a certificate, in such form
as the Company may from time to time prescribe, to enable the Company to
determine its duties and liabilities with respect to any taxes, assessments or
governmental charges which it may be required to deduct or withhold therefrom
under any present or future law of the United States of America or of any
state, county, municipality or taxing or withholding authority therein, and the
Company shall be entitled to determine its duties and liabilities with respect
to such deduction or withholding on the basis of information contained in such
certificate or, if no such certificate shall be so presented, on the basis of
any presumption created by any such law and shall be entitled to act in
accordance with such determination.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY. So long as
any Securities remain outstanding, the Company will maintain in each Place of
Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities
of that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any
series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 10.03. VACANCY IN THE OFFICE OF TRUSTEE. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Article Six, a Trustee, so
that there shall at all times be a Trustee hereunder.
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SECTION 10.04. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN
TRUST. If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest so
becoming due until such sum shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities, it will, prior to each due date of the principal of
or any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company shall cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (a) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and
(b) during the continuance of any default by the Company (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent, and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of or any
premium or interest on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and payable
shall be paid to the Company on Company Request or (if then held by the
Company) shall be discharged from such trust, and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 10.05. LIMITATION ON SECURED INDEBTEDNESS. The
Company will not, nor will it permit any Restricted Subsidiary to, issue,
assume or guarantee any Secured Indebtedness if such Secured Indebtedness is
secured by a Lien upon Restricted Property of the Company or a Restricted
Subsidiary without in any such case effectively providing, concurrently with
the issuance, assumption or guarantee of any such Secured Indebtedness, that
the Securities of any series then or thereafter outstanding (together with, if
the Company shall so determine, any other Indebtedness of the Company or such
Restricted Subsidiary ranking equally and ratably with such Securities and then
existing or thereafter created) shall be secured by such Lien equally and
ratably with any and all such Secured Indebtedness; provided, however, that the
foregoing shall not apply to:
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(a) any Lien on Restricted Property of any corporation if
such Lien is in existence at the time such corporation becomes a
Restricted Subsidiary;
(b) any Lien on Restricted Property if such Lien is in
existence at the time of acquisition by the Company or a Restricted
Subsidiary of such Restricted Property;
(c) any Lien on Restricted Property to secure the payment of
all or any part of the purchase price (or other acquisition cost) of such
Restricted Property or to secure any Indebtedness incurred (prior to, at
the time of, or within one year after, the acquisition by the Company or
a Restricted Subsidiary of such Restricted Property) for the purpose of,
or in connection with, financing all or any part of the purchase price
(or other acquisition cost) thereof;
(d) any Lien on property of a corporation if such Lien was in
existence prior to the time such corporation is merged into or
consolidated with the Company or a Restricted Subsidiary or prior to the
time of a sale, lease or other disposition of the properties of a
corporation or firm as an entirety or substantially as an entirety to the
Company or a Restricted Subsidiary;
(e) any Lien securing Secured Indebtedness owing by any
Restricted Subsidiary to the Company or to any other Restricted
Subsidiary;
(f) any Lien on Restricted Property in favor of the United
States of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of America
or any State thereof, or in favor of any other country, or any political
subdivision thereof, to secure partial, progress, advance or other
payments, or performance of any other obligations, pursuant to any
contract or statute or to secure any Indebtedness incurred for the
purpose of financing all or any part of the purchase price or cost of
construction of the Restricted Property subject to such Lien, including,
without limiting the generalities of the foregoing, Liens to secure
pollution control or industrial revenue bonds or other types of
financings;
(g) any Lien on personal property (other than manufacturing
equipment); or
(h) any extension or renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Secured Indebtedness or any Lien referred to in clauses (a) through (g),
inclusive, of this Section 10.05; provided, however, that the principal
amount of Secured Indebtedness secured by the Lien shall not exceed the
principal amount of Secured Indebtedness so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement Lien shall be limited to all or a part of the Restricted
Property which secured the Lien so extended, renewed or replaced (plus
improvements on such Restricted Property).
Notwithstanding the foregoing provisions of this Section
10.05, the Company or any one or more Restricted Subsidiaries may issue, assume
or guarantee Secured Indebtedness that would (but for the provision of clauses
(a) through (h), inclusive, of the preceding paragraph) otherwise be subject to
the foregoing restrictions in an aggregate amount which, together with the
aggregate principal amount of all other such Secured Indebtedness of the
Company and Restricted Subsidiaries outstanding at the time of such issuance,
assumption or guarantee (but excluding Secured Indebtedness permitted by
clauses (a) through (h), inclusive, of the preceding paragraph), does not at
such time exceed 15% of the Shareholders' Equity of the Company as at the last
day of the then most recently ended fiscal quarter of the Company, as reported
on the applicable consolidated balance sheet of the Company.
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<PAGE> 50
SECTION 10.06. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
So long as the Securities of any Series are Outstanding, the Company will not,
and will not permit any Restricted Subsidiary to, enter into any arrangement,
directly or indirectly, with any Person providing for the leasing by the
Company or a Restricted Subsidiary of any Restricted Property owned at the date
hereof, which Restricted Property has been or is to be sold or transferred by
the Company or such Restricted Subsidiary to such Person or to any other Person
where funds have been or are to be advanced to such Person subject to a Lien on
the Restricted Property to be leased (a "Sale and Leaseback Transaction"),
unless (a) the Company or such Restricted Subsidiary would be entitled,
pursuant to the provisions of Section 10.05, to incur Secured Indebtedness
secured by a Lien on the Restricted Property to be leased in an amount equal to
the Attributable Debt with respect to such Sale and Leaseback Transaction
without equally and ratably securing the Outstanding Securities, or (b) the
Company or such Restricted Subsidiary shall apply an amount equal to the
proceeds from the sale of such Restricted Property to the retirement, within
120 days of the effective date of any such Sale and Leaseback Transaction, of
Funded Debt of the Company or such Restricted Subsidiary; provided, however,
that this Section 10.06 shall not prevent the Company or any Restricted
Subsidiary from: (a) entering into any Sale and Leaseback Transaction not
involving a lease with a term of more than three years, or (b) entering into
any Sale and Leaseback Transaction in respect of any Restricted Property owned
at the date hereof by the Company or a Restricted Subsidiary, if such Sale and
Leaseback Transaction is entered into within 180 days after the later of the
acquisition, completion of construction or commencement of operation of such
Restricted Property.
SECTION 10.07. EXISTENCE. Subject to Article Eight, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence, rights (charter and statutory) and
franchises to carry on its business; provided, however, that nothing in this
Section 10.07 shall prevent (a) any consolidation or merger of the Company, or
any conveyance, transfer or lease of its property and assets substantially as
an entirety, permitted by Article Eight, or (b) the liquidation or dissolution
of the Company after such conveyance, transfer or lease of its property and
assets substantially as an entirety permitted by Article Eight.
SECTION 10.08. STATEMENT BY OFFICERS AS TO DEFAULT. The
Company will deliver to the Trustee, within 120 days after the end of each
fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers
thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of Sections 10.01 to 10.07,
inclusive, and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
SECTION 10.09. WAIVER OF CERTAIN COVENANTS. The Company may
omit in any particular instance to comply with any term, provision or condition
set forth in Sections 10.05 to 10.07, inclusive, 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, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. APPLICABILITY OF ARTICLE. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance with this Article.
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The
election of the Company to redeem any Securities shall be evidenced by a Board
Resolution or in any other manner specified, as contemplated by Section 3.01
for such Securities or series of Securities. In the case of any redemption at
the election of the Company of less than all the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date, of the principal amount of Securities of
such series to be redeemed and, if applicable, of the tenor of the Securities
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE
REDEEMED. If less than all the Securities of any series are to be redeemed in
accordance with this Article (unless all of the Securities of such series and
of a specified tenor are to be redeemed), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Securities of such series not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal amount of Securities of such
series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination or a denomination larger than
the minimum authorized denomination for Securities of that series. If less
than all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 11.04. NOTICE OF REDEMPTION. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not less than 30
nor more than 60 days prior to the Redemption Date, to each Holder of
Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price and accrued interest, if
any,
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(c) if less than all the Outstanding Securities of
any series are to be redeemed, the identification (and, in the
case of partial redemption of any Securities, the principal
amounts) of the particular Securities to be redeemed and, if
less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the
principal amount of the Security to be redeemed,
(d) that on the Redemption Date the Redemption Price
and accrued interest, if any, will become due and payable upon
each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(e) the place or places where such Securities are to
be surrendered for payment of the Redemption Price and accrued
interest, if any, and
(f) that the redemption is for a sinking fund, if
such is the case.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE. Prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 10.04) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE. Notice
of redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 3.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, required as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 11.07. SECURITIES REDEEMED IN PART. Any Security
which is to be redeemed only in part shall be surrendered at a Place of Payment
therefor (with, if the Company or the Security Registrar so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and the
Security Registrar shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. APPLICABILITY OF ARTICLE. The provisions
of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of Securities of any series is herein referred to as
an "optional sinking fund payment". If provided for by the terms of Securities
of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.02. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 12.02. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. The Company (1) may deliver outstanding Securities of a series
(other than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the term of such Securities or through the application of
permitted optional sinking fund payments pursuant to the term of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the term of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 12.03. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 12.02 and will also deliver to the Security Registrar any Securities to
be so delivered. Not less than 60 days before each such sinking fund payment
date, the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.03 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 11.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 11.05, 11.06 and 11.07.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 3.01
provision is made for either or both of (a) defeasance of the Securities of a
series under Section 13.02, or (b) covenant defeasance of the Securities of a
series under Section 13.03, then the provisions of such Section or Sections, as
the case may be, together with the other provisions of this Article Thirteen,
shall be applicable to the Securities of such series, and the Company may at
any time elect (such election to be evidenced by a Board Resolution), with
respect to the Securities of such series, either to effect such defeasance
pursuant to Section 13.02 (if applicable) or to effect such covenant defeasance
pursuant to
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Section 13.03 (if applicable) in respect of the Outstanding
Securities of such series upon compliance with the conditions set forth below
in this Article Thirteen.
SECTION 13.02. DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of the above option applicable to this Section, the Company shall be
deemed to have been discharged from its obligations with respect to the
Outstanding Securities of such series on and after the date the conditions
precedent set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by 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 of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of outstanding Securities of such series to receive, solely from the
trust fund described in Section 13.05 as more fully set forth in such Section,
payments of the principal of (and premium, if any) and interest on such
Securities when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 3.04, 3.05, 3.06, 10.02 and 10.04 and
such obligations as shall be ancillary thereto, (C) the rights, powers, trusts,
duties, immunities and other provisions in respect of the Trustee hereunder and
(D) this Article Thirteen. Subject to compliance with this Article Thirteen,
the Company may exercise its option under this Section 13.02 notwithstanding
the prior exercise of its option under Section 13.03 with respect to the
Securities of such series. Following a defeasance, payment of the Securities
of such series may not be accelerated because of the occurrence and continuance
of an Event of Default.
SECTION 13.03. COVENANT DEFEASANCE. Upon the Company's
exercise of the above option applicable to this Section and after the date the
conditions set forth below are satisfied, the Company shall be released from
its obligations under Section 10.05 and Section 10.06 and under any additional
or substitute covenant established with respect to the Securities of any series
pursuant to Section 3.01(18) if the Securities of such series have been
determined pursuant to Section 3.01 to be subject to this provision (with
Section 10.05, Section 10.06 and any such additional or substitute covenant
referred to herein as a "Defeasable Covenant"), and the occurrence of an event
specified in Section 5.01(d) with respect to such Defeasable Covenant shall not
be deemed to be an Event of Default with respect to the Outstanding Securities
of such series (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 Defeasable
Covenant whether directly or indirectly by reason of any reference elsewhere
herein to any such Defeasable Covenant or by reason of any reference in any
such Defeasable Covenant to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby. Following a covenant defeasance, payment of the
Securities of such series may not be accelerated because of an Event of Default
specified in Section 5.01(e) or Section 5.01(f) or by reference to Section
5.01(d) and such Defeasable Covenant.
SECTION 13.04. CONDITIONS TO DEFEASANCE OR COVENANT
DEFEASANCE. The following shall be the conditions precedent to application of
either Section 13.02 or Section 13.03 to the outstanding Securities of such
series:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.09 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to the benefit of the
Holders of such Securities, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money
in an amount, or (C) a combination thereof, sufficient, without
reinvestment, 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,
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the principal of (and premium, if any) and interest on the Outstanding
Securities of such series on the Maturity of such principal, premium, if
any, or interest and any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the
due dates thereof. Before such a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Securities
at a future date or dates in accordance with Article Eleven, which shall
be given effect in applying the foregoing. For this purpose, "U.S.
Government Obligations" means securities that are (x) direct obligations
of the United States of America for the payment of which its full faith
and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America, the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued by
a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government Obligation
or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required by
law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount
received by the custodian in respect of the U.S. Government Obligation or
the specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(2) No Event of Default or event which with notice or lapse
of time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing (A) on
the date of such deposit or (B) insofar as subsections 5.01(e) and (f)
are concerned, at any time during the period ending on the 91st day after
the date of such deposit or, if longer, ending on the day following the
expiration of the longest preference period applicable to the Company in
respect of such deposit (it being understood that the condition in this
Clause (B) shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not (A)
cause the Trustee for the Securities of such series to have a conflicting
interest as defined in Section 6.08 or for purposes of the Trust
Indenture Act with respect to any securities of the Company or (B) result
in the trust arising from such deposit constituting, unless it is
qualified as, a regulated investment company under the Investment
Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the Company is a
party or by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause
any Securities of such series then listed on any registered national
securities exchange under the Exchange Act to be delisted.
(6) In the case of an election under Section 13.02, the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that (x) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred.
(7) In the case of an election under Section 13.03, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the Outstanding Securities of such series
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will not recognize income, gain or loss for Federal income tax purposes
as a result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred.
(8) Such defeasance or covenant defeasance shall be effected
in compliance with any additional terms, conditions or limitations which
may be imposed on the Company in connection therewith pursuant to Section
3.01.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance under
Section 13.02 or the covenant defeasance under Section 13.03 (as the case
may be) have been complied with.
SECTION 13.05. DEPOSITED MONEY AND U.S. GOVERNMENT
OBLIGATIONS TO BE HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to
the provisions of the last paragraph of Section 10.04, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee collectively, for purposes of this Section
13.05, the "Trustee") pursuant to Section 13.04 in respect of the Outstanding
Securities of such series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and this Indenture, to the
payment, either directly or through any Paying Agent (but not including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest, but such money need
not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the money or U.S.
Government Obligations deposited pursuant to Section 13.04 or the principal and
interest received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request any
money or U.S. Government Obligations held by it as provided in Section 13.04
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance, as the
case may be, with respect to such Securities.
SECTION 13.06. REINSTATEMENT. If the Trustee or the Paying
Agent is unable to apply any money in accordance with Section 13.05 by reason
of any order or judgment or any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under the Securities of such series shall be revived and reinstated
as though no deposit had occurred pursuant to this Article Thirteen until such
time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 13.05; provided, however, that, if the Company makes
any payment of principal of (and premium, if any) or interest on any such
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money so held in trust by the Trustee or the Paying Agent.
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ARTICLE FOURTEEN
IMMUNITY OF SHAREHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01. EXEMPTION FROM INDIVIDUAL LIABILITY. No
recourse under or upon any obligation, covenant or agreement of this Indenture,
or of any Security, or for any claim based thereon or otherwise in respect
thereof, shall be had against any shareholder, officer or director, as such,
past, present or future, of the Company or of any successor corporation, either
directly or through the Company, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations of the Company, that no such
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
of any successor corporation, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the
Securities or coupons or implied therefrom, and that any and all such
liability, either at common law or in equity or by constitution or statue, is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issuance of the Securities.
This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
THE GOODYEAR TIRE & RUBBER COMPANY
By
---------------------------------
Name:
Title:
[Seal]
Attest:
- -----------------------------------
CHEMICAL BANK
By:
---------------------------------
Name:
Title:
[Seal]
Attest:
- -----------------------------------
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the _________ day of __________________ before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he is _______________ of Chemical Bank, a banking corporation described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
------------------------------------
Notary Public
[Notarial Seal]
STATE OF OHIO )
) ss.:
COUNTY OF SUMMIT )
On the _____ day of ____________________________ before me personally
came ________________, to me known, who, being by me duly sworn, did depose and
say that he is ____________________ of The Goodyear Tire & Rubber Company, the
corporation described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation; and that he signed his name thereto by like
authority.
------------------------------------
Notary Public
[Notarial Seal]
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<PAGE> 1
EXHIBIT 5.1
March 25, 1996
The Goodyear Tire & Rubber Company
1144 East Market Street
Akron, Ohio 44316-0001
RE: REGISTRATION STATEMENT ON FORM S-3;
$500,000,000 AGGREGATE PRINCIPAL
AMOUNT OF DEBT SECURITIES
Gentlemen:
I am a Vice President and the General Counsel of The Goodyear Tire &
Rubber Company, an Ohio corporation (the "Company"), and, in such capacity,
have acted as counsel to the Company in connection with the registration under
the Securities Act of 1933, as amended (the "Securities Act") of up to
$500,000,000 aggregate principal amount of Debt Securities (the "Securities")
pursuant to a Registration Statement on Form S-3 (the "Registration Statement")
currently being filed with the Securities and Exchange Commission by the
Company. The Securities would be issued pursuant to an Indenture (the
"Indenture") to be entered into between the Company and Chemical Bank, as
Trustee (the "Trustee").
I have examined and am familiar with the Amended Articles of
Incorporation and Code of Regulations of the Company, as each is amended to
date, and the proceedings of the Board of Directors of the Company with respect
to the proposed issuance of the Securities. I have also examined, or caused to
be examined, the form of Indenture and such other corporate records, documents
and instruments, and I have made, or caused to be made, such investigations of
law, as are in my judgment necessary or appropriate as a basis for the opinions
expressed below.
In rendering the following opinions, I have assumed that the actions
relating to the authorization, registration, offer and issuance of the
Securities taken by the Company's Board of Directors prior to the date of this
opinion will not be revoked by any action of the Company's Board of Directors
after the date hereof.
Based upon the foregoing, I am of the opinion that:
1. The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of Ohio.
2. The Indenture, when duly executed and delivered by the
Company and the Trustee in the form included as Exhibit 4.1 to the
Registration Statement, will constitute a valid and binding instrument
of the Company.
3. The Securities have been duly authorized for issuance and,
when each series of Securities is duly executed, authenticated, issued
and delivered in accordance with the terms of the Indenture against
payment to the Company of
<PAGE> 2
the purchase price of such series of Securities in accordance with the
authorization of the Company's Board of Directors, each such series of
Securities will have been legally issued and will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture.
My opinions set forth in paragraphs (2) and (3) above with respect to
the binding effect of the Indenture and Securities issued pursuant to the
Indenture are subject to (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other laws now or hereafter in effect
relating to, affecting, or limiting creditors' rights, and (ii) general
principles of equity (whether considered in a proceeding at law or in equity)
and the discretion of the court before which any proceeding may be brought.
In rendering the foregoing opinions, the examination of law referred
to above has been limited to, and I express no opinions as to matters under or
involving any laws other than, the Federal laws of the United States of America
and the laws of the State of Ohio.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to me under the caption "Validity
of Debt Securities" in the Prospectus constituting a part of the Registration
Statement.
Very truly yours,
/s/ C. Thomas Harvie
---------------------------
Vice President and
General Counsel
C Thomas Harvie
tmd
<PAGE> 1
EXHIBIT 12.1
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
($ in millions)
<TABLE>
<CAPTION>
1995 1994 1993 1992 1991
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
EARNINGS
Income before income taxes, extraordinary
items and cumulative effect of accounting changes $ 925.8 $ 865.7 $ 784.9 $629.9 $270.7
Add:
Amortization of previously capitalized interest $ 11.7 $ 10.2 $ 10.1 $ 9.6 $ 7.6
Minority interest in net income of
consolidated subsidiaires with fixed charges 30.1 16.9 19.0 14.2 18.5
Proportionate share of fixed charges of investees
accounted for by the equity method 6.3 5.0 4.7 6.9 9.1
Proportionate share of net loss of investees
accounted for by the equity method 0.5 0.2 0.3 2.2 1.3
-------- -------- -------- ------ ------
Total additions $ 48.6 $ 32.3 $ 34.1 $ 32.9 $ 36.5
Deduct:
Capitalized interest $ 5.1 $ 5.7 $ 5.0 $ 4.0 $ 8.3
Minority interest in net loss of consolidated subsidiaries 3.3 0.3 0.3 1.8 5.6
Undistributed proportionate share of net income
of investees accounted for by the equity method 0.2 7.2 4.0 0.9 0.1
-------- -------- -------- ------ ------
Total deductions $ 8.6 $ 13.2 $ 9.3 $ 6.7 $ 14.0
TOTAL EARNINGS $ 965.8 $ 884.8 $ 809.7 $656.1 $293.2
======== ======== ======== ====== ======
FIXED CHARGES
Interest expense $ 135.0 $ 129.4 $ 162.4 $232.9 $317.8
Capitalized interest 5.1 5.7 5.0 4.0 8.3
Amortization of debt discount, premium or expense 0.5 0.7 0.4 1.0 0.7
Interest portion of rental expense 77.0 83.0 83.7 87.6 87.0
Proportionate share of fixed charges of investees
accounted for by the equity method 6.3 5.0 4.7 6.9 9.1
-------- -------- -------- ------ ------
TOTAL FIXED CHARGES $ 223.9 $ 223.8 $ 256.2 $332.4 $422.9
======== ======== ======== ====== ======
TOTAL EARNINGS BEFORE FIXED CHARGES $1,189.7 $1,108.6 $1,065.9 $988.5 $716.1
======== ======== ======== ====== ======
RATIO OF EARNINGS TO FIXED CHARGES 5.31 4.95 4.16 2.97 1.69
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Prospectus
constituing part of this Registration Statement on Form S-3 of our report dated
February 1, 1996 appearing on page 30 of The Goodyear Tire & Rubber Company's
Annual Report on Form 10-K for the year ended December 31, 1995. We also consent
to the reference to us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Cleveland, Ohio
March 25, 1996
<PAGE> 1
EXHIBIT 24.1
THE GOODYEAR TIRE & RUBBER COMPANY
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, THE GOODYEAR TIRE &
RUBBER COMPANY, a corporation organized and existing under the laws of the
State of Ohio, and the undersigned directors and officers of THE GOODYEAR TIRE
& RUBBER COMPANY, hereby constitute and appoint ROBERT W TIEKEN, C THOMAS
HARVIE, RICHARD W HAUMAN, GEORGE E STRICKLER and JAMES BOYAZIS, and each and
any one of them, their true and lawful attorneys-in-fact and agents, to do any
and all of the acts and things and to execute any and all instruments which
said attorneys and agents may deem necessary and advisable to enable the said
THE GOODYEAR TIRE & RUBBER COMPANY to comply with the Securities Act of 1933,
as amended (the "Securities Act"), and any rules, regulations and requirements
of the Securities and Exchange Commission in respect thereof, in connection
with the registration under the Securities Act of up to a maximum of
$500,000,000 in principal amount of notes, bonds, debentures, sinking fund
debentures or similar debt securities, including zero coupon notes, bonds and
debentures, including any options, rights and other similar securities for the
purchase of, or otherwise relating to, such notes, bonds, debentures or similar
debt securities for offer and sale and issuance and delivery from time to time
by THE GOODYEAR TIRE & RUBBER COMPANY, including specifically, but without
limiting the generality of the foregoing, the power and authority to sign the
names of THE GOODYEAR TIRE & RUBBER COMPANY and the names of the undersigned
directors and officers in the capacities indicated below to one or more
Registration Statements on Form S-3, or such other form or forms of
registration statement as may be required by the Securities and Exchange
Commission under the Securities Act, each said Registration Statement may also
provide for the filing thereof as a shelf Registration Statement pursuant to
Rule 415 of the Securities and Exchange Commission promulgated under the
Securities Act, and to any and all pre-effective amendments, pricing
amendments, post- effective amendments and other amendments to or constituting
a part of any of the said Registration Statements which may be filed from time
to time, and to any and all other amendments or supplements to any of the said
Registration Statements, and to all prospectuses and prospectus supplements
filed in respect of any of the said Registration Statements and to any and all
instruments or documents filed as a part of or in conjunction with any of the
said Registration Statements or the amendments (including pre- effective,
post-effective and other amendments), prospectuses, prospectus supplements and
other instruments filed in respect of any of the said Registration Statements.
Each of the undersigned hereby ratifies and confirms all that the said
attorneys-in-fact and agents, or any one or more of them, shall do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have subscribed or cause to be
subscribed in these presents on this 9th day of January, 1996.
Attest: THE GOODYEAR TIRE & RUBBER COMPANY
/s/ James Boyazis By /s/ Samir F Gibara
- ---------------------------- -------------------------------------
James Boyazis, Samir F Gibara,
Secretary President and Chief Executive Officer
Chairman of the Board and
Director /s/ Stanley C Gault
-----------------------------------------
Stanley C Gault
<PAGE> 2
Director, President and
Chief Executive officer /s/ Samir F Gibara
-----------------------------------
(principal executive officer) Samir F Gibara
Executive Vice President and Chief
Financial Officer (principal
financial officer) /s/ Robert W Tieken
-----------------------------------
Robert W Tieken
Vice President and Comptroller
(principal accounting officer) /s/ George E Strickler
-----------------------------------
George E Strickler
Director /s/ John G Breen
-----------------------------------
John G Breen
Director /s/ William E Butler
-----------------------------------
William E Butler
Director /s/ Thomas H Cruikshank
-----------------------------------
Thomas H Cruikshank
Director /s/ William J Hudson, Jr
-----------------------------------
William J Hudson, Jr
Director /s/ Gertrude G Michelson
-----------------------------------
Gertrude G Michelson
Director /s/ Steven A Minter
-----------------------------------
Steven A Minter
Director /s/ Agnar Pytte
-----------------------------------
Agnar Pytte
Director /s/ George H Schofield
-----------------------------------
George H Schofield
Director /s/ William C Turner
-----------------------------------
William C Turner
<PAGE> 1
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) ----
---------------------------------------
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------------------
THE GOODYEAR TIRE & RUBBER COMPANY
(Exact name of obligor as specified in its charter)
OHIO 34-0253240
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1144 EAST MARKET STREET
AKRON, OHIO 44316
(Address of principal executive offices) (Zip Code)
-------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
------------------------------------------------
<PAGE> 2
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
- 2 -
<PAGE> 3
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 33-50010, which
is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 33-84460, which
is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chemical Bank, a corporation organized and existing under the laws of
the State of New York, has duly caused this statement of eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 14TH day of MARCH, 1996.
CHEMICAL BANK
By/s/F.J. Grippo
-----------------
F. J. Grippo
Vice President
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business December 31, 1995, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
DOLLAR AMOUNTS
ASSETS IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 6,390
Interest-bearing balances ......................... 2,544
Securities: ..........................................
Held to maturity securities............................ 3,807
Available for sale securities.......................... 26,522
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 ................................ 750
Securities purchased under agreements to resell ... 259
Loans and lease financing receivables:
Loans and leases, net of unearned income $72,938
Less: Allowance for loan and lease losses 1,917
Less: Allocated transfer risk reserve ... 104
------
Loans and leases, net of unearned income,
allowance, and reserve ............................ 70,917
Trading Assets ....................................... 27,963
Premises and fixed assets (including capitalized
leases)............................................ 1,355
Other real estate owned ............................... 21
Investments in unconsolidated subsidiaries and
associated companies............................... 171
Customer's liability to this bank on acceptances
outstanding ....................................... 1,166
Intangible assets ..................................... 433
Other assets .......................................... 4,822
-----
TOTAL ASSETS .......................................... $147,120
=========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ................................ $47,524
Noninterest-bearing .........................$17,041
Interest-bearing ............................ 30,483
------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 37,690
Noninterest-bearing .........................$ 147
Interest-bearing ............................ 37,543
------
Federal funds purchased and securities sold under agree-
ments to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBF's
Federal funds purchased ............................ 9,384
Securities sold under agreements to repurchase ..... 2,166
Demand notes issued to the U.S. Treasury .............. 741
Trading liabilities ................................... 21,847
Other Borrowed money:
With original maturity of one year or less ......... 9,669
With original maturity of more than one year ....... 146
Mortgage indebtedness and obligations under capitalized
leases ............................................. 14
Bank's liability on acceptances executed and outstanding 1,180
Subordinated notes and debentures ..................... 3,411
Other liabilities ..................................... 5,290
TOTAL LIABILITIES ..................................... 139,062
-------
EQUITY CAPITAL
Common stock .......................................... 620
Surplus ............................................... 4,665
Undivided profits and capital reserves ................ 3,055
Net unrealized holding gains (Losses)
on available-for-sale securities ...................... (290)
Cumulative foreign currency translation adjustments ... 8
TOTAL EQUITY CAPITAL .................................. 8,058
------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $147,120
==========
</TABLE>
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is
true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
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 appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )
- 5 -
