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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
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)
------------------------
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)
------------------------
COPIES TO:
GERRY V. WITTKAMPER, ESQ.
THE GOODYEAR TIRE & RUBBER COMPANY
1144 EAST MARKET STREET
AKRON, OHIO 44316-0001
JOHN W. WHITE, ESQ.
CRAVATH, SWAINE & MOORE
WORLDWIDE PLAZA
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
TITLE OF EACH CLASS OF AMOUNT BEING OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE REGISTRATION FEE
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Debt Securities................... $250,000,000(1) 100% $250,000,000(2) $69,500.00
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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 $250,000,000. 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.
------------------------
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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<PAGE> 2
SUBJECT TO COMPLETION, DATED NOVEMBER 12, 1998
$250,000,000
THE GOODYEAR TIRE & RUBBER COMPANY
DEBT SECURITIES
------------------------
The Goodyear Tire & Rubber 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 $250,000,000. The Debt Securities may be
offered in separate series in amounts, at prices and on terms determined at the
time of offering.
An accompanying prospectus supplement will set forth the principal amount,
maturity, interest rate or rates (which may be fixed or variable) and/or any
method of determining the interest rate or rates, the initial public offering
price, and other terms of each series of the Debt Securities.
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 and their compensation will be set forth in
the applicable prospectus supplement.
------------------------
YOU SHOULD READ THIS PROSPECTUS AND ANY ACCOMPANYING PROSPECTUS SUPPLEMENT
CAREFULLY BEFORE YOU INVEST.
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
------------------------
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE
MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
The date of this Prospectus is , 1998
<PAGE> 3
YOU SHOULD RELY ONLY ON THE INFORMATION PROVIDED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT. NO
PERSON HAS BEEN AUTHORIZED BY US TO PROVIDE YOU WITH ANY OTHER INFORMATION. WE
ARE NOT MAKING AN OFFER OF ANY DEBT SECURITIES IN ANY STATE WHERE THE OFFER IS
UNLAWFUL. YOU SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS AND THE
ACCOMPANYING PROSPECTUS SUPPLEMENT IS CORRECT AS OF ANY DATE AFTER THE DATE OF
THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT.
AVAILABLE INFORMATION ABOUT THE COMPANY
The Goodyear Tire & Rubber Company (the "Company," which may also be
referred to as "we" or "us") files annual reports on Form 10-K, quarterly
reports on Form 10-Q, current reports on Form 8-K, proxy statements and other
information with the Securities and Exchange Commission (the "Commission")
pursuant to the informational requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"). You may read and copy any materials filed
by the Company with the Commission pursuant to the Exchange Act at the
Commission's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C.
20549. You may obtain information regarding the operation of the Public
Reference Room by calling the Commission at 1-800-SEC-0330 (1-800-732-0330). The
Commission also maintains an Internet site. The Company's filings with the
Commission are available at the following Internet address of the Commission:
(http://www.sec.gov).
The Company has filed with the Commission a registration statement (of
which this prospectus is a part) on Form S-3 relating to the Debt Securities
(the "Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"). This prospectus does not contain all of the information set
forth in the Registration Statement. For additional information, you should
refer to the Registration Statement, which you may inspect at the Commissions
Public Reference Room or at its Internet site.
The Commission allows us to "incorporate by reference" into this prospectus
information included in documents we file with it pursuant to the Exchange Act.
The information incorporated by reference is considered a part of this
prospectus, which means we can disclose important information to you by
referring you to those documents. Information filed with the Commission in the
future will update and supersede prior information. Any information modified or
superseded by information in a document filed by us with the Commission in the
future shall not be apart of this prospectus. The Company incorporates by
reference the documents listed below and all future documents filed by us with
the Commission (File No. 1-1927) under Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act until our offering of the Debt Securities is completed:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997, as amended by Amendment No. 1 on Form 10-K/A dated
November 10, 1998.
(2) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1998, June 30, 1998 and September 30, 1998.
YOU MAY REQUEST A COPY OF THESE FILINGS, AT NO COST TO YOU, BY WRITING TO
US AT THE FOLLOWING ADDRESS OR CALLING US AT THE TELEPHONE NUMBER BELOW:
OFFICE OF THE SECRETARY
THE GOODYEAR TIRE & RUBBER COMPANY
1144 EAST MARKET STREET
AKRON, OHIO 44316-0001
TELEPHONE NUMBER: 330-796-2121
THE COMPANY
The Company was organized as an Ohio corporation in 1898 (the Company,
together with its domestic and foreign subsidiary companies, is referred to as
"Goodyear"). Goodyear is one of the world's leading producer of tires and rubber
products. Goodyear manufactures and markets new tires for most applications in
most regions of the world. Goodyear also manufactures and sells several lines of
rubber and other products for the transportation industry and various industrial
and consumer markets. Goodyear also manufactures numerous rubber-related
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chemicals for various applications and provides automotive repair and other
services and sells various other products.
We maintain our principal executive offices at 1144 East Market Street,
Akron, Ohio 44316-0001. Our telephone number is 330-796-2121.
USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, the net
proceeds we receive from the sale of the Debt Securities will be used for
general corporate purposes. General corporate purposes may include repaying
short-term bank borrowings and funding future acquisitions, capital expenditures
and working capital requirements.
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>
NINE MONTHS
ENDED YEARS ENDED DECEMBER 31,
SEPTEMBER 30, ------------------------------------
1998 1997 1996 1995 1994 1993
------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges......................... 6.23 5.07 5.15 5.08 4.94 4.23
</TABLE>
For purposes of computing the above ratios: earnings consist of income from
continuing operations before income taxes, extraordinary items and cumulative
effect of accounting changes, plus amortization of capitalized interest,
minority interest in net income of subsidiaries, certain other adjustments, and
fixed charges; and 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.
DESCRIPTION OF DEBT SECURITIES
THE FOLLOWING DESCRIPTION SETS FORTH CERTAIN GENERAL TERMS OF THE DEBT
SECURITIES. THE PARTICULAR TERMS OF THE SERIES OF DEBT SECURITIES OFFERED BY AN
ACCOMPANYING PROSPECTUS SUPPLEMENT (THE "OFFERED DEBT SECURITIES") WILL BE
DESCRIBED IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT.
The Debt Securities will be issued under an Indenture, dated as of
September 15, 1998 (the "Indenture"), between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"). The following summary of certain
provisions of the Indenture is not complete. Section references below are to
sections of the Indenture. Capitalized terms have the meanings assigned to them
in the Indenture. The referenced sections of the Indenture and the definitions
of the capitalized terms are incorporated by reference. A copy of the Indenture
is filed as an exhibit to the Registration Statement.
GENERAL
The amount of the Debt Securities we may issue under the Indenture is
limited to $250,000,000 aggregate principal amount. The Debt Securities may be
issued from time to time in one or more separate series. The Debt Securities
will be unsecured and will have the same rank as all of our other unsecured and
unsubordinated indebtedness.
The prospectus supplement relating to the Offered Debt Securities will
specify the terms of the Offered Debt Securities. These terms may include:
- the title of the Offered Debt Securities;
- the aggregate principal amount of the Offered Debt Securities;
- the price at which the Offered Debt Securities will be issued;
- the dates on which the principal of the Offered Debt Securities will be
due and payable;
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- the rate or rates (which may be fixed or variable) and/or any method for
determining the rate or rates at which the Offered Debt Securities will
bear interest, if any;
- the date or dates from which any interest will accrue;
- the date on which payment of interest, if any, will commence, the
Interest Payment Dates, and the Regular Record Dates for such Interest
Payment Dates;
- the Person to whom any 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;
- the place or places where payments on the Offered Debt Securities will be
payable;
- any mandatory or optional sinking fund provisions applicable to the
Offered Debt Securities;
- any mandatory or optional redemption provisions applicable to the Offered
Debt Securities;
- if other than U.S. Dollars, the currency or currencies, including
composite currencies, in which payments on the Offered Debt Securities
will be payable;
- any index used to determine the amount of payments of principal of (and
premium, if any) or interest on the Offered Debt Securities;
- the portion of the principal amount of the Offered Debt Securities, if
other than the principal amount thereof, payable upon acceleration of
maturity thereof;
- any right of the Company to defease the Offered Debt Securities under the
Indenture;
- 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
- any other terms of the Offered Debt Securities. (Section 3.01)
Debt Securities may be issued as original issue discount Debt Securities
("Original Issue Discount Securities"). An Original Issue Discount Security
bears no interest or bears interest at a below-market rate, is sold at a
discount to its stated principal amount and, ordinarily, provides that less than
the stated principal amount will be payable upon any acceleration of its
Maturity. (Section 1.01) The applicable prospectus supplement will describe any
special tax, accounting or other information relating to Original Issue Discount
Securities or relating to certain other kinds of Offered Debt Securities, such
as Debt Securities linked to an index, payable in currencies other than U.S.
dollars, or subject to special repayment or other provisions.
Unless otherwise specified in the prospectus supplement relating to the
Offered Debt Securities:
- principal of (and premium, if any) and interest, if any, on the Debt
Securities will be payable at the Corporate Trust Office of the Trustee,
except that we have the option to pay interest by mailing a check to the
address of the Person entitled thereto as indicated by the Security
Register;
- transfers and exchanges of the Debt Securities may be made at the
Corporate Trust Office of the Trustee;
- 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;
- the Debt Securities will be issued only in fully registered form without
coupons and in denominations of $1,000 or any integral multiples thereof;
and
- no service charge will be made for any transfer or exchange of the Debt
Securities, but we may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection with a transfer or
exchange. (Sections 3.01, 3.02, 3.05, 3.07 and 10.02)
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COVENANTS
LIMITATION ON SECURED INDEBTEDNESS. The Indenture contains a covenant by
us that, so long as any Debt Securities are outstanding, neither we nor any
Restricted Subsidiary (as defined below) will issue, assume or guarantee any
Secured Indebtedness (as defined below) secured by a Lien (as defined below) on
Restricted Property (as defined below) without securing the Debt Securities
equally and ratably with, or prior to, such Secured Indebtedness. The foregoing
limitation on Secured Indebtedness does not apply to:
- any Lien on Restricted Property of a Restricted Subsidiary that exists
when the corporation becomes a Restricted Subsidiary;
- any Lien on Restricted Property that exists when the Company or a
Restricted Subsidiary acquires such Restricted Property;
- any Lien on Restricted Property securing payment of all or part of the
purchase price of such Restricted Property;
- any Lien on Restricted Property to secure any indebtedness incurred to
finance all or part of the purchase price of such Restricted Property,
whether incurred before, at the time of, or within one year after, the
acquisition of such Restricted Property;
- any Lien on property of a corporation that exists when such corporation
is merged into or consolidated with the Company or a Restricted
Subsidiary
- any Lien on property of a corporation that exists prior to the sale,
lease or other disposition of all or substantially all of the properties
of such corporation to the Company or a Restricted Subsidiary;
- any Lien securing Secured Indebtedness owing by any Restricted Subsidiary
to the Company or another Restricted Subsidiary;
- any Lien on Restricted Property in favor of any country, any political
subdivision of any country, or any department, agency or instrumentality
of any country or any political subdivision of any country, to secure
partial, progress, advance or other payments or performance pursuant to
any contract or statute or to secure any indebtedness incurred for the
purpose of financing all or part of the purchase price or cost of
construction of such Restricted Property, including Liens to secure
pollution control or industrial revenue bonds or other types of
financings;
- any Lien on personal property, other than manufacturing equipment that is
Restricted Property;
- any extension, renewal or replacement of any Secured Indebtedness or any
Lien referred to above, provided that the principal amount of Secured
Indebtedness secured by the Lien shall not exceed the principal amount
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 such Lien (plus
improvements on such Restricted Property); or
- Liens on Restricted Property that would not otherwise be permitted, if
the aggregate amount of all Secured Indebtedness secured such Liens,
determined immediately after the grant of the Lien, does not exceed 15%
of the stated capital, plus capital surplus, plus retained earnings of
the Company and its consolidated subsidiaries reported on our then most
recent annual or quarterly consolidated balance sheet. (Section 10.05.)
Lien, Restricted Property, Restricted Subsidiary and Secured Indebtedness
are defined in Section 1.01 of the Indenture. For your reference:
- "Lien" means any mortgage, lien, pledge, security interest or title
retention agreement relating to any asset.
- "Restricted Property" means any manufacturing plant or equipment owned by
us or a Restricted Subsidiary which is used primarily to manufacture
tires or other automotive products and is located within the United
States of America, excluding (i) retread plants, (ii) plants, facilities
and equipment used primarily for transportation, marketing or
warehousing, (iii) oil and gas pipeline and related assets, and (iv)
certain other plants and equipment that are not important to our
business.
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- "Restricted Subsidiary" means a subsidiary of the Company engaged
primarily in manufacturing tires or other automotive products, which (i)
has substantially all of its assets located in, and conducts
substantially all of its operations in, the United States of America and
(ii) 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),
other than a subsidiary primarily engaged in financing accounts
receivable, leasing or owning real estate or transportation or
distribution activities.
- "Secured Indebtedness" means indebtedness of the Company or any
Restricted Subsidiary for money borrowed (including capital lease
obligations and conditional sales contracts) that matures (or may be
extended so as to mature) more than one year after it was incurred,
assumed or guaranteed and is secured by a Lien on Restricted Property,
other than indebtedness secured by a Lien which is outstanding at
September 15, 1998.
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. We also covenant that
neither we nor any Restricted Subsidiary will enter into any lease (except
leases for a term of three years or less or leases of newly acquired, improved
or constructed property) covering any Restricted Property owned at September 15,
1998 that is sold to any other person in connection with such lease (a "Sale and
Leaseback Transaction"), unless we or such Restricted Subsidiary would either
(i) be entitled to incur Secured Indebtedness secured by a Lien on the
Restricted Property to be leased in an amount equal to the Attributable Debt (as
defined below) with respect to such Sale and Leaseback Transaction without
equally and ratably securing the Debt Securities, or (ii) use (within 120 days
of the effective date of such Sale and Leaseback Transaction) an amount equal to
the proceeds from the sale of such Restricted Property to repay any indebtedness
of the Company or such Restricted Subsidiary that matures (or may be extended so
as to mature) more than one year after it was incurred or assumed. Neither we
nor any Restricted Subsidiary are prevented 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, the completion of construction, or
the commencement of operation of such Restricted Property. (Section 10.06)
"Attributable Debt" is the total net amount of rent required to be paid during
the 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%, and (ii) the weighted average interest rate
borne by the Debt Securities then outstanding.
CONSOLIDATION, MERGER AND SALE OF ASSETS. We also covenant that we will
not merge into or consolidate with, or sell all or substantially all of our
assets to, any Person, 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 corporation assumes all the obligations of the Company under the Debt
Securities and the Indenture. (Section 8.01) Upon any such merger, consolidation
or sale, the successor corporation will succeed to and be substituted for, the
Company. (Section 8.02).
LEVERAGED TRANSACTIONS AND CHANGES IN CONTROL. Other than the covenants
described above, the Indenture does not contain any covenants or other
provisions designed to protect holders of the Debt Securities in the event of a
highly leveraged transaction involving the Company. The Indenture does not
contain provisions requiring redemption of the Debt Securities, or adjustment to
any terms of the Debt Securities, in the event of any change in control of the
Company.
EVENTS OF DEFAULT
An Event of Default under the Indenture (Section 5.01) with respect to Debt
Securities of any series is the occurrence of any one of the following events:
(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 when due any sinking fund payment in respect of
that series;
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(4) our failure for 60 days after appropriate notice to perform any of
the other covenants in the Indenture (except covenants not applicable to
that series);
(5) certain events of bankruptcy, insolvency or reorganization of the
Company; or
(6) any other Event of Default provided with respect to Debt
Securities of that series.
If any Event of Default with respect to Debt Securities of any series
occurs and is continuing, either the Trustee or the holders of not less than 25%
in principal amount of the Debt Securities of that series then outstanding may
declare the principal amount (or, a specified portion of the principal amount of
any Original Issue Discount Securities) of all Debt Securities of that series to
be due and payable immediately. Subject to certain conditions, the declaration
may be annulled and past defaults (except uncured payment defaults and certain
other specified defaults) may be waived by the holders of a majority in
principal amount of the Debt Securities of that series then outstanding.
(Sections 5.02 and 5.13)
The prospectus supplement relating to each series of Offered Debt
Securities that consists in whole or in part of Original Issue Discount
Securities will describe any particular provisions relating to acceleration of
the Maturity of such Original Issue Discount Securities when an Event of Default
occurs, including the portion of the stated amount that would be due.
The Trustee is required to give the holders of any series of Debt
Securities notice of a default known to it (if uncured or not waived) within 90
days of the default occurs. Except in the case of a payment default, the Trustee
may withhold this notice if it determines in good faith that withholding it is
in the interest of the holders of such series. The above notice shall not be
given until at least 60 days after the occurrence of a default in the
performance of a covenant in the Indenture other than a payment default. The
term "default" for the purpose of this provision means any event which is, or
after notice and/or lapse of time would become, an Event of Default with respect
to Debt Securities of that series. (Section 6.02)
Other than the duty to act with the required standard of care, the Trustee
is not obligated to exercise any of its rights or powers under the Indenture at
the request or direction of the holders of Debt Securities unless the holders
indemnify the Trustee. (Section 6.03) If the Trustee is indemnified, the holders
of a majority in principal amount of Debt Securities of any series may direct
the time, method and place of conducting any proceeding for any available remedy
or for exercising any trust or other power conferred on the Trustee. However,
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 may start a lawsuit under the
Indenture, unless:
- the holder has given to the Trustee written notice of a continuing Event
of Default with respect to Debt Securities of that series;
- the holders of at least 25% in principal amount of the Outstanding Debt
Securities of that series make a written request to the Trustee to seek a
remedy and offer a reasonable indemnity;
- the Trustee fails to start a lawsuit within 60 days; and
- the Trustee does not receive 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 when due and to institute suit for the enforcement of any such payment.
(Section 5.08)
The Indenture requires us to file annually with the Trustee a certificate
stating that no default exists under 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.
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DEFEASANCE AND COVENANT DEFEASANCE. The Indenture provides that, if made
applicable to any series of Debt Securities, we may elect to: (1) defease and be
discharged from all of our obligations (subject to certain limited exceptions)
with respect to any series of Debt Securities then outstanding ("Defeasance")
and/or (2) be released from our obligations under certain covenants and from the
consequences of an Event of Default resulting from the breach of those covenants
("Covenant Defeasance"). To elect Defeasance and/or Covenant Defeasance, we must
deposit in trust with the Trustee money and/or U.S. Government Obligations which
through the payment of interest and principal in accordance with their terms
will provide money in an amount sufficient to repay in full when due the Debt
Securities of such series. As a condition to Defeasance or Covenant Defeasance,
we must deliver to the Trustee an Opinion of Counsel 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 the Defeasance or Covenant Defeasance and
that the Debt Securities, if then listed on a national securities exchange under
the Exchange Act, would not be delisted as a result of the defeasance.
(Sections 13.02, 13.03 and 13.04) In the case of Defeasance, we may deliver to
the Trustee a ruling of the Internal Revenue Service in lieu of the Opinion of
Counsel.
COVENANT DEFEASANCE AND CERTAIN OTHER EVENTS OF DEFAULT. If we implement
Covenant Defeasance for a series of the Debt Securities and such series is
declared due and payable because of the occurrence of one of certain 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 at the time of the acceleration resulting from such Event of
Default. However, we remain liable for such payments.
MODIFICATIONS AND WAIVERS OF THE INDENTURE
The Company and the Trustee may modify (by adding, changing or eliminating
any provision of) the Indenture (as provided at Section 9.02) with the consent
of the holders of not less than a majority in principal amount of outstanding
Debt Securities of each series affected. However, without the consent of each
affected holder, no modification may:
- change the dates fixed in any Debt Security for the payment of the
principal of and interest on such Debt Security.
- reduce the principal amount of (or premium, if any) or any interest on
any Debt Security.
- reduce the rate of interest on any Debt Security.
- reduce the amount of principal of an Original Issue Discount Security
payable upon acceleration.
- change the place or currency of payment of principal of (or premium, if
any) or interest on any Debt Security.
- impair the right to institute suit for the enforcement of any payment on
any Debt Security on or after such payment is due and payable.
- reduce the percentage in principal amount of Debt Securities of any
series required to consent a modification of, or waiver under, the
Indenture.
- effect certain other changes.
The holders of a majority in principal amount of Debt Securities of any
series then outstanding may waive our compliance with certain restrictive
provisions of the Indenture with respect to that series. (Section 10.09) The
holders of a majority in principal amount of Debt Securities of any series then
outstanding may waive any past default under the Indenture with respect to that
series, except a default in the payment of the principal of or interest (or
premium, if any) on any Debt Security of that series or a default under a
covenant which cannot be modified or amended without the consent of all affected
holders of Debt Securities. (Section 5.13)
PERMANENT GLOBAL DEBT SECURITIES -- BOOK-ENTRY SYSTEM
The following will apply to the Debt Securities of any series, unless
otherwise indicated in the prospectus supplement relating to that series.
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<PAGE> 10
The Debt Securities of each series will be represented by one or more
permanent global securities (collectively, a "Global Security") to be deposited
with and registered in the name of a depositary or a nominee of the depositary
identified in the prospectus supplement relating to such series. Unless
otherwise indicated in the prospectus supplement relating to that series of Debt
Securities, The Depositary Trust Company ("DTC") will act as depositary and the
Global Security will be deposited with DTC, as depositary, or its nominee and
registered in the name of a nominee of DTC. Except under the limited
circumstances described below, Global Securities are not exchangeable for
definitive certificated Debt Securities.
Ownership of beneficial interests in a Global Security is limited to
institutions that have accounts with DTC or its nominee ("participants") or
persons that may hold interests through participants. Ownership of beneficial
interests by participants in a Global Security will be evidenced only by, and
the transfer of that ownership interest will be effected only through, records
maintained by DTC or its nominee for that Global Security. Ownership of
beneficial interests in a Global Security by a person that holds through a
participant will be evidenced only by, and the transfer of that beneficial
interest within that participant will be effected only through, records
maintained by that participant. DTC has no knowledge of the actual beneficial
owners of the Debt Securities. Beneficial owners will not receive written
confirmation from DTC of their purchase. Beneficial owners are expected to
receive written confirmations of the details of transactions and periodic
statements of their holdings from the participants through which the beneficial
owners entered into the transactions. The laws of certain jurisdictions require
that certain owners of securities obtain possession of such securities in
definitive form. Such laws may impair the ability to transfer beneficial
interests in a Global Security.
We have been advised by DTC that upon the issuance of a Global Security and
the deposit of that Global Security with DTC, DTC will immediately credit, on
its book-entry registration and transfer system, the respective principal
amounts of the Debt Securities represented by that Global Security to the
accounts of its participants.
So long as DTC, or its nominee, is the registered holder and owner of a
Global Security, it will be considered the sole owner and holder of the Debt
Securities for all purposes of such Debt Securities and 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 DTC 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 the 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.
Payment of principal of and premium, if any, and interest, if any, on Debt
Securities represented by a Global Security will be made to DTC or its nominee,
as the case may be, as the registered owner and holder of the Global Security
representing those Debt Securities.
We have been advised by DTC that upon receipt of any payment of principal
of, or premium, if any, or interest on, a Global Security, DTC will immediately
credit participants' accounts on its book-entry registration and transfer system
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of that Global Security as shown on the records of DTC.
Payments by participants to owners of beneficial interests in a Global Security
held through those 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 sole
responsibility of such participants, subject to any statutory or regulatory
requirements that may be in effect from time to time.
Neither we nor the Trustee will be responsible for any aspect of the
records of DTC, any nominee or any participant 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 of DTC, any
nominee or any participant relating to such beneficial ownership interests.
Further, neither we nor the Trustee will be responsible for any other aspect of
the relationship between the DTC and its participants or the relationship
between such participants and the owners of beneficial interests in such Global
Security owning through such participants.
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<PAGE> 11
A Global Security is exchangeable for definitive Debt Securities registered
in the name of, and a transfer of a Global Security may be registered to, any
person other than DTC or its nominee, only if:
(a) DTC notifies us that it is unwilling or unable to continue as
depositary for that Global Security or at any time DTC ceases to be a
clearing agency registered under the Exchange Act;
(b) we at any time determine in our discretion that all or a portion
of the Global Security shall be exchangeable for definitive Debt Securities
in registered form; or
(c) an Event of Default with respect to the Debt Securities shall have
occurred and be continuing.
Any Global Security that is exchangeable pursuant to the preceding sentence
will be exchangeable in whole for definitive Debt Securities in registered form,
of like tenor and of an equal aggregate principal amount as the Global Security,
in denominations specified in the applicable prospectus supplement (if other
than $1,000 and integral multiples of $1,000). The definitive Debt Securities
will be registered by the registrar in the name or names instructed by DTC. We
expect that these instructions may be based upon directions received by DTC from
its participants with respect to ownership of beneficial interests in the Global
Security. Any principal and interest will be payable, the transfer of the
definitive Debt Securities will be registerable, and the definitive Debt
Securities will be exchangeable at the corporate trust office of the Trustee in
the Borough of Manhattan, The City of New York, provided that payment of
interest may be made at our option by check mailed to the address of the person
entitled to that interest payment as of the record date and as shown on the
register for the Debt Securities.
Except as provided above, owners of the beneficial interests in a Global
Security will not be entitled to receive physical delivery of Debt Securities in
definitive form and will not be considered the holders of Debt Securities for
any purpose under the Indenture. No Global Security shall be exchangeable except
for another Global Debt Security of like denomination and tenor to be registered
in the name of DTC or its nominee. Accordingly, each person owning a beneficial
interest in a Global Security must rely on the procedures of DTC and, if that
person is not a participant, on the procedures of the participant through which
that person owns its interest, to exercise any rights of a holder under the
Global Security or the Indenture.
We understand that, under existing industry practices, if we request any
action of holders, or an owner of a beneficial interest in a Global Security
desires to take any action that a holder is entitled to take under the Debt
Securities or the Indenture, then DTC would authorize the participants holding
the relevant beneficial interests to take that action and those participants
would authorize beneficial owners owning through those participants to take that
action or would otherwise act upon the instructions of beneficial owners owning
through them.
DTC has advised us that DTC is a limited purpose trust company organized
under the laws of the State of New York, a "banking organization" within the
meaning of the New York Banking Law, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the New York Uniform Commercial
Code and a "clearing agency" registered under the Exchange Act. DTC was created
to hold securities of its participants and to facilitate the clearance and
settlement of securities transactions among its participants in those securities
through electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. DTC's
participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations. DTC is owned by a number
of its participants and by the New York Stock Exchange, Inc., the American Stock
Exchange, Inc. and the National Association of Securities Dealers, Inc. Access
to DTC's book-entry system is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly. The rules
applicable to DTC and its participants are on file with the Commission.
DTC has informed its participants and others that it is implementing a
program so that its processing data systems, as they relate to the timely
payment of distributions to securityholders, book-entry deliveries, and
settlement of trades within DTC, will function properly on and after January 1,
2000. DTC has indicated that it has completed a technical assessment and
remediation plan and expects to complete testing within appropriate time frames.
DTC's ability to perform its services is also dependent upon other parties,
including issuers and their agents, vendors of software and hardware, and
information, telecommunication and electrical utility service vendors. DTC has
informed its participants and others that it is contacting its vendors to
determine the extent of their efforts for Year 2000 remediation and testing of
their services and is developing such contingency plans as it
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<PAGE> 12
deems appropriate. According to DTC, the foregoing information is not intended
as a representation, warranty, or contract modification of any kind.
SAME-DAY SETTLEMENT AND PAYMENT
Settlement by the purchasers of the Debt Securities will be made in
immediately available funds. All payments of principal and interest by us to DTC
will be made in immediately available funds.
The Debt Securities will trade in DTC's Same-Day Funds Settlement System
until maturity. DTC will require secondary trading activity in the Debt
Securities to be settled in immediately available funds. The settlement of
trades in immediately available funds may affect trading activity in the Debt
Securities, since secondary trading in long-term notes and debentures of
corporate issuers is generally settled in clearing-house or next-day funds.
INFORMATION CONCERNING THE TRUSTEE
The Chase Manhattan Bank is the Trustee under the Indenture. The Chase
Manhattan Bank is also the Trustee under an indenture, dated as of March 15,
1996, between the Company and The Chase Manhattan Bank, as Trustee, which
contains substantially the same covenants and events of default as those set
forth in the Indenture. Under the indenture dated March 15, 1996, the Company
issued $250 million principal amount of its 6 5/8% Notes due 2006, $150 million
principal amount of its 7% Notes due 2028 and $100 million principal amount of
its 6 3/8% Notes due 2008. We maintain various banking relationships with the
Trustee. The Bank is the agent and a lender under our Revolving Credit Facility
Agreement, as amended by a Second Replacement and Restatement Agreement, dated
as of July 13, 1998. The Chase Manhattan Bank and 23 other domestic and
international banks have agreed to lend us up to $700 million at any one time
outstanding from time to time through July 13, 2003 under the Revolving Credit
Facility Agreement. The Chase Manhattan Bank is also the agent and a lender
under our Credit Agreement [364-Day Facility], as amended by a Second
Replacement and Restatement Agreement [364-Day Facility], dated as of July 13,
1998. Under the Credit Agreement, The Chase Manhattan Bank and 23 other domestic
and international banks have agreed to lend us up to $300 million at any one
time outstanding from time to time through July 12, 1999, when the commitment of
each participating bank terminates unless extended for 364 days on a bank by
bank basis. We may obtain a two year loan from any non-extending bank. The Chase
Manhattan Bank is also the counterparty to certain interest rate exchange
transactions and performs various other banking services for us in the ordinary
course of business. The Chase Manhattan Bank has received and will receive fees
and other compensation in connection with the aforesaid credit agreements and
for 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 through underwriters, dealers or
agents or directly to purchasers. The applicable prospectus supplement will set
forth the terms of the offering of any Offered Debt Securities.
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.
If underwriters are utilized in the sale of Debt Securities, we will
execute an underwriting agreement with those underwriters. The underwriting
agreement will provide that the obligations of the underwriters are subject to
certain conditions precedent and that the underwriters will be obligated to
purchase all the Debt Securities then being offered if any are purchased. In
connection with the sale of Debt Securities, underwriters may be deemed to have
received compensation from us in the form of underwriting discounts or
commissions and may also receive commissions from the purchasers for whom they
may act as agent. Underwriters may sell Offered Debt Securities to or through
dealers. Those 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 agent.
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Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time. If underwriters
are utilized in the sale of any Debt Securities, the applicable Prospectus
Supplement will contain a statement regarding the intention, if any, of the
underwriters to make a market in the Offered Debt Securities.
If a dealer is utilized directly by us, we will sell the Debt Securities to
the dealer, as principal. The dealer may then resell the Debt Securities to the
public at varying prices to be determined by the dealer at the time of resale.
Debt Securities may also be offered and sold through agents designated by
us from time to time. Unless otherwise indicated in the prospectus supplement,
any agent will be acting on a reasonable efforts basis for the period of its
appointment.
Underwriters, dealers or agents participating in the distribution of Debt
Securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Debt
Securities may be deemed to be underwriting discounts and commissions under the
Securities Act.
Under agreements that may be entered into by us, underwriters, dealers and
agents who participate in the distribution of Debt Securities may be entitled to
be indemnified by us against certain liabilities, including liabilities under
the Securities Act. Underwriters, dealers and agents may engage in transactions
with, or perform services for, us and our subsidiaries in the ordinary course of
business and receive compensation for such transactions and services.
We may solicit directly offers to purchase Debt Securities. Except as set
forth in the applicable prospectus supplement, none of our directors, officers,
or employees will solicit or receive a commission in connection with direct
sales of the Debt Securities by us. Those persons may respond to inquiries by
potential purchasers and perform ministerial and clerical work in connection
with direct sales.
We may authorize underwriters or other persons acting as our agents to
solicit offers by certain institutions to purchase Offered Debt Securities from
us 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 other institutions we may approve.
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 us 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 us by C. Thomas Harvie, Esq., a Vice President and the General
Counsel of the Company, and for any 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, 1997, as amended by Amendment No. 1 on Form 10-K/A dated
November 10, 1998, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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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................................. $ 69,500.00
Printing and Engraving Costs................................ $ 70,000.00*
Accounting Fees and Expenses................................ $ 75,000.00*
Trustee Fees and Expenses................................... $ 20,000.00*
Legal Fees and Expenses..................................... $ 10,000.00*
Rating Agencies' Fees....................................... $272,500.00*
Blue Sky Fees and Expenses.................................. $ 10,000.00*
Miscellaneous............................................... $ 25,000.00*
-----------
Total............................................. $552,000.00
===========
</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 this
Article, or (2) independent legal counsel (who may be the regular counsel of the
Company) shall
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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.
(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
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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 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,
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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, Certificate of
Amendment to Amended Articles of Incorporation of
Registrant, dated April 6, 1993, and Certificate of
Amendment to Amended Articles of Incorporation of Registrant
dated June 4, 1996 (three 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 Conformed copy of Indenture, dated as of September 15, 1998,
between Registrant and The Chase Manhattan Bank, as Trustee.
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 PricewaterhouseCoopers LLP, independent
accountants, to the incorporation by reference in this
Registration Statement on Form S-3 of their report dated
February 2, 1998, except as to Note 20, which is dated
November 10, 1998, appearing at page 32 of Registrant's
Annual Report on Form 10-K for the year ended December 31,
1997, as amended by Amendment No. 1 on Form 10-K/A dated
November 10, 1998.
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 October 6, 1998, authorizing Robert
W. Tieken, C. Thomas Harvie, Richard W. Hauman, James
Boyazis, and John W. Richardson, 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, dated November 10, 1998, of The
Chase Manhattan Bank on Form T-1 relating to the Indenture,
dated as of September 15, 1998, between Registrant and The
Chase Manhattan 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;
II-5
<PAGE> 19
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 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 12th day of November,
1998.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ JOHN W. RICHARDSON
-----------------------------------
John W. Richardson,
Vice President
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........................ Chairman of the Board,
Chief Executive
Officer and President
and a Director
(Principal Executive
Officer)
Robert W. Tieken....................... Executive Vice By: /s/ JOHN W. RICHARDSON
President (Principal ----------------------------------------
Financial Officer) John W. Richardson
John G. Breen.......................... Director Signing individually as a Vice President
William E. Butler...................... Director (Principal Accounting Officer) of
Thomas H. Cruikshank................... Director Registrant and as Attorney-in-Fact for
Katherine G. Farley.................... Director the directors and officers whose names
William J. Hudson, Jr.................. Director appear opposite
Steven A. Minter....................... Director
Agnar A. Pytte......................... Director November 12, 1998
George H. Schofield.................... Director
William C. Turner...................... Director
Martin D. Walker....................... 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, Certificate of
Amendment to Amended Articles of Incorporation of
Registrant, dated April 6, 1993, and Certificate of
Amendment to Amended Articles of Incorporation of Registrant
dated June 4, 1996 (three 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 Conformed copy of Indenture, dated as of September 15, 1998,
between Registrant and The Chase Manhattan Bank, as Trustee.
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 PricewaterhouseCoopers LLP, independent
accountants, to the incorporation by reference in this
Registration Statement on Form S-3 of their report dated
February 2, 1998, except as to Note 20, which is dated
November 10, 1998, appearing at page 32 of Registrant's
Annual Report on Form 10-K for the year ended December 31,
1997, as amended by Amendment No. 1 on Form 10-K/A dated
November 10, 1998.
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 October 6, 1998, authorizing Robert
W. Tieken, C. Thomas Harvie, Richard W. Hauman, James
Boyazis and John W. Richardson 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, dated November 10, 1998, of The
Chase Manhattan Bank on Form T-1 relating to the Indenture,
dated as of September 15, 1998, between Registrant and The
Chase Manhattan Bank.
</TABLE>
<PAGE> 1
EXHIBIT 1.1
THE GOODYEAR TIRE & RUBBER COMPANY
UNDERWRITING AGREEMENT
New York, New York
[date]
To the Representative(s)
named in Schedule I
hereto of the
Underwriters 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 September 15, 1998, between the Company and The Chase Manhattan Bank
(formerly 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 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
<PAGE> 3
3
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 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
<PAGE> 4
4
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
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
<PAGE> 5
5
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 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.
<PAGE> 6
6
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
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
<PAGE> 7
7
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 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
<PAGE> 8
8
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 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
<PAGE> 9
9
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 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
<PAGE> 10
10
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 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;
<PAGE> 11
11
(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 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
<PAGE> 12
12
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
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
<PAGE> 13
13
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 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 any
executive vice president or senior vice 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
<PAGE> 14
14
Final Prospectus, any 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, PricewaterhouseCoopers 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 Final Prospectus and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Act and
<PAGE> 15
15
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 consistent with that of the
audited financial statements included or incorporated
in the Registration Statement and the Final
Prospectus;
<PAGE> 16
16
(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 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
<PAGE> 17
17
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 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.
<PAGE> 18
18
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, PricewaterhouseCoopers 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.
(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.
<PAGE> 19
19
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 cancelation 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 Underwriter
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
<PAGE> 20
20
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) the second paragraph and the second sentence of the third paragraph under
the heading "Underwriting" and (iii) the first sentence of the 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
<PAGE> 21
21
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 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
<PAGE> 22
22
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, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company or the Underwriters, and the
parties' relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution 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, 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). The Underwriters'
obligations to contribute as provided in this paragraph (d) are several in
proportion to their respective underwriting obligations and not joint.
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
<PAGE> 23
23
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 Exchange, The Chicago Stock Exchange,
Incorporated or The Pacific Exchange, Incorporated or trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ National Market 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
<PAGE> 24
24
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
cancelation 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 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.
<PAGE> 25
25
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:
<PAGE> 26
26
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[Underwriter]
[Underwriter]
By:
By:
By:
----------------------------
Name:
Title:
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
<PAGE> 27
27
SCHEDULE I
Underwriting Agreement dated:
Registration Statement No.:
Representatives:
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:
Closing Date, Time and Location:
Type of Offering:
Delayed Delivery Arrangements: None
Fee: Not applicable
Minimum principal amount of each contract:
Not applicable
<PAGE> 28
28
Maximum aggregate principal amount of all contracts:
Not applicable
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 PricewaterhouseCoopers
LLP delivered pursuant to Section 5(e) at the Execution time:
<PAGE> 29
29
SCHEDULE II
Underwriters Principal Amount
of Securities to
be Purchased
=================================
Total . . . . . . . . . $
================================
<PAGE> 30
30
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.
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
<PAGE> 31
31
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 first above written,
when such counterpart is so mailed or delivered.
<PAGE> 32
32
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 of 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 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
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
{The Seal of the Secretary of State}
{of the State of Ohio}
<PAGE> 5
EXHIBIT 4.1(A) Continued
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 Incorporation 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.
3
<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 a 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 of
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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<PAGE> 12
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 action 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 the 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(A) Continued
CERTIFICATE OF AMENDMENT
TO
AMENDED ARTICLES OF INCORPORATION
OF
THE GOODYEAR TIRE & RUBBER COMPANY
Samir F. Gibara, 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, pursuant to the authority
conferred upon the Board of Directors of said corporation by Section 1 of Part B
of ARTICLE FOURTH of the Amended Articles of Incorporation of the said
corporation and by the Ohio General Corporation Law, at a meeting of the Board
of Directors of said corporation duly called and held on the 4th day of June,
1996, at which meeting a quorum of the Board of Directors was at all times
present, the Board of Directors was without shareholder action, which
shareholder action was not required, the following resolution:
RESOLVED, that The Goodyear Tire & Rubber Company hereby adopts the
following amendment to its Amended Articles of Incorporation, as amended to
date, and that the Chairman of the Board, the President or a Vice President
and the Secretary or an Assistant Secretary of the 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 of the Company are hereby
amended to create a new series of Preferred Stock by adding a new Section
1-B to PART B of ARTICLE FOURTH as follows:
Section 1-B. Series B 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 B
Preferred Stock, without par value."
2. Authorized Number of Shares - Fractional Shares. The authorized
number of shares constituting the Series B Preferred Stock is 7,000,000.
Series B 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 B 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 B Preferred Stock with
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respect to dividends that may be authorized by the Amended Articles of
Incorporation, the holders of shares of Series B Preferred Stock shall be
entitled prior to the payment of any dividends on shares ranking junior to
the Series B 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 B Preferred Stock, in an amount per share (rounded to the
nearest cent) equal to the greater (a) $25.00 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 B Preferred Stock. In the event the Corporation shall at
any time after July 29, 1996 (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 B 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 B 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 Dividend Payment Date, a dividend of $25.00 per
share on the Series B 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 B Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issue of such shares of Series B 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
B 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.
(D) Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series B 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 B Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon,
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<PAGE> 18
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 B 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) 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 such 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 B Preferred Stock unless, prior
thereto, the holders of shares of Series B Preferred Stock shall have
received $25.00 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 B Liquidation Preference"). Following the
payment of the full amount of the Series B Liquidation Preference, no
additional distribution shall be made to the holders of shares of Series B
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 B 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 B
Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series B Preferred Stock and Common Stock
respectively, holders of Series B 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 Series B 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 B Liquidation Preference
and the liquidation preferences of all other series of Preferred Stock, if
any, which rank on a parity with the Series B 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 outstanding
immediately after such event and the denominator of which is the number of
shares of
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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 B Preferred Stock shall at the 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 B 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 B 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 B Preferred Stock, voting separately as one voting group.
IN WITNESS WHEREOF, said Samir F. Gibara, President, and James Boyazis,
Secretary, of The Goodyear Tire & Rubber Company, acting on behalf of said
corporation, have hereunto subscribed their names and caused the seal of said
corporation to be hereunto affixed this 4th day of June, 1996.
By: /s/ Samir F. Gibara
------------------------------------
Samir F. Gibara, President
By: /s/ James Boyazis
------------------------------------
James Boyazis, Secretary
[SEAL]
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<PAGE> 20
UNITED STATES OF AMERICA,
STATE OF OHIO,
OFFICE OF THE SECRETARY OF STATE
I, BOB TAFT, Secretary of State of the State of Ohio, do hereby
certify that the foregoing is a true and correct copy, consisting of 4
pages, as taken from the original record now in my official custody as
Secretary of State.
WITNESS my hand and official seal at
Columbus, Ohio, this 30th day of
July, A.D., 1996.
[SEAL OF THE SECRETARY OF STATE OF OHIO]
By: /s/ Bob Taft
------------------------------------
BOB TAFT
Secretary of State
By: A Henderson
------------------------------------
NOTICE: THIS IS AN OFFICIAL CERTIFICATION ONLY WHEN REPRODUCED IN RED INK.
<PAGE> 1
EXHTBIT 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
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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
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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 suck 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
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<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
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<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 Controllers, 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.
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<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
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<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
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<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.
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<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
THE CHASE MANHATTAN BANK,
AS TRUSTEE
---------------------
DATED AS OF SEPTEMBER 15, 1998
---------------------
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.
TRUST INDENTURE ACT SECTION INDENTURE SECTION
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)
<PAGE> 3
317 (a)(1) 5.03
(a)(2) 5.04
(b) 10.04
318 (a) 1.07
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 4
<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
<S> <C> <C>
SECTION 1.01. Definitions............................................................................1
SECTION 1.02. Compliance Certificates and Opinions...................................................8
SECTION 1.03. Form of Documents Delivered to Trustee.................................................8
SECTION 1.04. Acts of Holders; Record Dates..........................................................9
SECTION 1.05. Notices, Etc., to Trustee and Company.................................................11
SECTION 1.06. Notice to Holders; Waiver.............................................................11
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.................................................................12
SECTION 1.12. Governing Law.........................................................................12
SECTION 1.13. Legal Holidays........................................................................12
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.......................................................................12
SECTION 2.02. Form of Face of Security..............................................................13
SECTION 2.03. Form of Reverse of Security...........................................................14
SECTION 2.04. Form of Legend for Global Securities..................................................18
SECTION 2.05. Form of Trustee's Certificate of Authentication.......................................18
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount of Securities Issuable; Issuable in Series.....................................19
SECTION 3.02. Denominations.........................................................................21
SECTION 3.03. Execution, Authentication, Delivery and Dating........................................21
SECTION 3.04. Temporary Securities..................................................................22
SECTION 3.05. Registration, Registration of Transfer and Exchange...................................22
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities......................................24
SECTION 3.07. Payment of Interest; Interest Rights Preserved........................................24
SECTION 3.08. Persons Deemed Owners.................................................................25
SECTION 3.09. Cancellation..........................................................................25
SECTION 3.10. Computation of Interest...............................................................26
</TABLE>
(i)
<PAGE> 5
<TABLE>
<CAPTION>
ARTICLE FOUR
SATISFACTION AND DISCHARGE
<S> <C> <C>
SECTION 4.01. Satisfaction and Discharge of Indenture...............................................26
SECTION 4.02. Application of Trust Money............................................................27
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default.....................................................................27
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment....................................28
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.......................29
SECTION 5.04. Trustee May File Proofs of Claim......................................................29
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities...........................30
SECTION 5.06. Application of Money Collected........................................................30
SECTION 5.07. Limitation on Suits ..................................................................30
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest.........................................................31
SECTION 5.09. Restoration of Rights and Remedies....................................................31
SECTION 5.10. Rights and Remedies Cumulative........................................................31
SECTION 5.11. Delay or Omission Not Waiver..........................................................31
SECTION 5.12. Control by Holders....................................................................31
SECTION 5.13. Waiver of Past Defaults ..............................................................32
SECTION 5.14. Undertaking for Costs.................................................................32
SECTION 5.15. Waiver of Stay or Extension Laws......................................................32
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities...................................................32
SECTION 6.02. Notice of Defaults....................................................................33
SECTION 6.03. Certain Rights of Trustee.............................................................33
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities................................34
SECTION 6.05. May Hold Securities...................................................................34
SECTION 6.06. Money Held in Trust...................................................................34
SECTION 6.07. Compensation and Reimbursement........................................................34
SECTION 6.08. Disqualification; Conflicting Interests...............................................34
SECTION 6.09. Corporate Trustee Required; Eligibility...............................................35
SECTION 6.10. Resignation and Removal; Appointment of Successor.....................................35
SECTION 6.11. Acceptance of Appointment by Successor................................................36
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business...........................37
SECTION 6.13. Preferential Collection of Claims Against Company.....................................37
SECTION 6.14. Appointment of Authenticating Agent...................................................37
</TABLE>
(ii)
<PAGE> 6
<TABLE>
<CAPTION>
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
<S> <C> <C>
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.............................39
SECTION 7.02. Preservation of Information; Communications to Holders................................39
SECTION 7.03. Reports by Trustee....................................................................39
SECTION 7.04. Reports by Company....................................................................39
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
SECTION 8.01. Company May Consolidate, etc., Only on Certain Terms..................................40
SECTION 8.02. Successor Corporation to be Substituted...............................................40
SECTION 8.03. Opinion of Counsel to be Given Trustee................................................40
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders....................................41
SECTION 9.02. Supplemental Indentures With Consent of Holders.......................................41
SECTION 9.03. Execution of Supplemental Indentures..................................................42
SECTION 9.04. Effect of Supplemental Indentures.....................................................42
SECTION 9.05. Conformity with Trust Indenture Act...................................................43
SECTION 9.06. Reference in Securities to Supplemental Indentures....................................43
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest............................................43
SECTION 10.02. Maintenance of Office or Agency.......................................................43
SECTION 10.03. Vacancy in the Office of Trustee......................................................44
SECTION 10.04. Money for Securities Payments to be Held in Trust.....................................44
SECTION 10.05. Limitation on Secured Indebtedness....................................................44
SECTION 10.06. Limitation on Sale and Lease-back Transactions........................................46
SECTION 10.07. Existence.............................................................................46
SECTION 10.08. Statement by Officers as to Default...................................................46
SECTION 10.09. Waiver of Certain Covenants...........................................................46
</TABLE>
(iii)
<PAGE> 7
<TABLE>
<CAPTION>
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
<S> <C> <C>
SECTION 11.01. Applicability of Article.................................................................47
SECTION 11.02. Election to Redeem; Notice to Trustee....................................................47
SECTION 11.03. Selection by Trustee of Securities to be Redeemed........................................47
SECTION 11.04. Notice of Redemption.....................................................................47
SECTION 11.05. Deposit of Redemption Price..............................................................48
SECTION 11.06. Securities Payable on Redemption Date....................................................48
SECTION 11.07. Securities Redeemed in Part..............................................................48
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article.................................................................49
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities....................................49
SECTION 12.03. Redemption of Securities for Sinking Fund................................................49
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Applicability of Article; Company's Option To Effect
Defeasance or Covenant Defeasance...................................................50
SECTION 13.02. Defeasance and Discharge.................................................................50
SECTION 13.03. Covenant Defeasance......................................................................50
SECTION 13.04. Conditions to Defeasance or Covenant Defeasance..........................................51
SECTION 13.05. Deposited Money and U.S. Government Obligations to be
Held in Trust.......................................................................52
SECTION 13.06. Reinstatement............................................................................53
ARTICLE FOURTEEN
IMMUNITY OF SHAREHOLDERS, OFFICERS
AND DIRECTORS
SECTION 14.01. Exemption from Individual Liability......................................................53
Testimonium.............................................................................................54
Signatures and Seals....................................................................................54
Acknowledgements........................................................................................55
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a part of the Indenture.
</TABLE>
(iv)
<PAGE> 8
INDENTURE dated as of September 15, 1998, 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 THE CHASE MANHATTAN 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.
1
<PAGE> 9
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.04.
"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 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,
2
<PAGE> 10
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.
"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).
3
<PAGE> 11
"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 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
4
<PAGE> 12
subdivision, department, agency, bureau or instrumentality of any thereof, or
(ii) mechanics', materialmen's, repairmen's or other similar liens incurred in
the ordinary course 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.
"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
5
<PAGE> 13
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.
"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
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<PAGE> 14
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 September 15, 1998 and
is secured by one or more Liens existing on that date, including any renewals or
extensions thereof, or (ii) not Funded Debt.
"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.
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<PAGE> 15
"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.
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
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<PAGE> 16
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.
(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
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<PAGE> 17
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.
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
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<PAGE> 18
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.
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.
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<PAGE> 19
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 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.
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<PAGE> 20
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 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,
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<PAGE> 21
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 September 1, 1998 (herein called
the "Indenture"), between the Company and The Chase Manhattan 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,
Year Redemption Year Redemption
---- ----
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<PAGE> 22
Price Price
----- -----
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,
Year Redemption Price Redemption Price for
---- for Redemption Redemption Otherwise
Through Operation Than Through Operation
of the Sinking Fund of the Sinking Fund
------------------- ----------------------
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.]
[If applicable, insert - The Securities are subject to
redemption, as a whole at any time or in part from time to time, at the sole
election of the Company, upon not less than 30 or more than 60 days' notice by
mail to the Trustee at a Redemption Price equal to [ ].]
[If applicable, insert - The holder of this Security shall
have the right to require the Company to pay this Security in full on
____________, __ by giving the Company or the Registrar written notice of the
exercise of such right not less than 30 or more than 60 days' prior to such
date.]
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<PAGE> 23
[If applicable, insert -- 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.]
[If applicable, insert -- 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.]
[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. "Event of Default" means any one of the events specified at clauses
________ and _______ of Section 5.01 of 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.
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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.
[If applicable, insert -- 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.]
[If applicable, insert - The Securities of this series will be
represented by one or more global securities (collectively, the "Global
Security") registered in the name of The Depositary Trust Company, New York, New
York (the "Depositary"), or a nominee of the Depositary. So long as the
Depositary, or its nominee, is the registered holder and owner of this Global
Note, the Depositary or such nominee, as the case may be, will be considered the
sole owner and holder of the Notes for all purposes under the Indenture. The
Global Security may be transferred, in whole and not in part, only to the
Depositary or another nominee of the Depositary. The Depositary will credit, on
its book-entry registration and transfer system, the respective principal
amounts of the Notes represented by such Global Security to the accounts of
institutions that have accounts with the Depositary or its nominee
("participants"). Ownership of beneficial interests in a Global Security will be
shown on, and the transfer of those ownership interests will be effected
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).]
[If applicable, insert - The Securities represented by this
Global Security are exchangeable for 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 this 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
Securities of this series represented by the Global Security and notifies the
Trustee thereof, or (iii) an Event of Default has occurred and is continuing
with respect to the Securities. Any Security that is exchangeable pursuant to
the preceding sentence is exchangeable only for Securities of this series.]
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.
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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.
THE CHASE MANHATTAN 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 on original issuance under this Indenture is TWO HUNDRED FIFTY MILLION
DOLLARS ($250,000,000).
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 (which may be fixed or variable) and/or the
method of determination thereof at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which 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 thereof
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<PAGE> 27
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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<PAGE> 28
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
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<PAGE> 29
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 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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<PAGE> 31
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.
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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 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
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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 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
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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 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
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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 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
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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:
(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
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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 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 and for any
other amounts due the Trustee under Section 6.07, 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
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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.
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
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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 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,
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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 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
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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:
(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 or by virtue of being the trustee under that certain
indenture, dated as of March 15, 1996, between the Company and the Trustee under
which the Company's 6 5/8% Notes due 2006, 7% Notes due 2028 and 6 3/8% Notes
due 2008 were issue and are outstanding.
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.
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(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.
(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.
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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.
(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.
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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 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
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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.
THE CHASE MANHATTAN 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
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so required to be filed with the Commission.
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 Trustee,
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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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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,
(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
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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.
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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 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.
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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, 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.
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(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 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
52
<PAGE> 60
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.
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
indirectly 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
shareholders, 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 implied therefrom,
and that any and all such liability, either at common law or in equity or by
constitution or statute 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.
53
<PAGE> 61
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 /s/ Richard W. Hauman
-------------------------------------
Name: Richard W. Hauman
Title: Vice President & Treasurer
[Seal]
Attest:
/s/ James Boyazis
- -----------------------------
James Boyazis, Secretary
THE CHASE MANHATTAN BANK
By: /s/ Andrew M. Deck
-------------------------------------
Name: Andrew M. Deck
Title: Vice President
[Seal]
Attest:
/s/ Francine Springer
- -------------------------------
Francine Springer
Assistant Vice President
54
<PAGE> 62
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 18th day of September, 1998 before me personally came Andrew M.
Deck, to me known, who, being by me duly sworn, did depose and say that he is a
Vice President of The Chase Manhattan 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.
/s/ Annabelle Deluca
-------------------------------------
Notary Public
Annabelle DeLuca
[Notarial Seal] Notary Public, State of New York
No. 01DE5013759
Qualified in Kings County
Certificate Filed in New York County
Commission Expires July 15, 1999
STATE OF OHIO )
) ss.:
COUNTY OF SUMMIT )
On the 22nd day of September, 1998 before me personally came Richard W.
Hauman, to me known, who, being by me duly sworn, did depose and say that he is
a Vice President and the Treasurer 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.
/s/ Mary Anne Reiber
-------------------------------------
Notary Public
Mary Anne Reiber, Notary Public
[Notarial Seal] Residence - Summit County
State Wide Jurisdiction, Ohio
My Commission Expires Feb. 24, 2002
55
<PAGE> 1
EXHIBIT 5.1
[THE GOODYEAR TIRE & RUBBER COMPANY LETTERHEAD]
VICE PRESIDENT AND
GENERAL COUNSEL
November 12, 1998
The Goodyear Tire & Rubber Company
1144 East Market Street
Akron, Ohio 44316-0001
RE: REGISTRATION STATEMENT ON FORM S-3; $250,000,000 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 $250,000,000
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 that certain Indenture, dated as of
September 15, 1998 (the "Indenture"), entered into between the Company and The
Chase Manhattan 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 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
<PAGE> 2
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 constitutes 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 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 creditor's 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
2
<PAGE> 1
EXHIBIT 12.1
THE GOODYEAR TIRE & RUBBER COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
9 MONTHS YEAR ENDED DECEMBER 31,
ENDED ------------------------------------------------------
9/30/98 1997 1996 1995 1994 1993
(DOLLARS IN MILLIONS) -------- ------ -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
EARNINGS
INCOME FROM CONTINUING OPERATIONS
BEFORE INCOME TAXES, EXTRAORDINARY
ITEMS AND CUMULATIVE EFFECT OF
ACCOUNTING CHANGES................... $ 832.8 $743.3 $ 811.5 $ 869.8 $ 855.9 $ 797.4
Add:
Amortization of previously capitalized
interest............................. 8.1 11.0 11.6 11.7 10.2 10.1
Minority interest in net income of
consolidated subsidiaries with fixed
charges.............................. 27.2 45.1 45.9 30.1 16.9 19.0
Proportionate share of fixed charges of
investees accounted for by the equity
method............................... 4.0 6.5 5.1 5.3 2.5 2.3
Proportionate share of net loss of
investees accounted for by the equity
method............................... 0.5 0.1 2.7 0.5 0.2 0.3
-------- ------- -------- -------- -------- --------
Total additions............... 39.8 62.7 65.3 47.6 29.8 31.7
Deduct:
Capitalized interest................... 3.4 6.2 5.4 5.1 5.7 5.0
Minority interest in net loss of
consolidated subsidiaries............ 2.2 3.6 4.4 3.3 0.3 0.3
Undistributed proportionate share of
net income of investees accounted for
by the equity method................. -- -- -- 0.2 7.2 4.0
-------- ------ -------- -------- -------- --------
Total deductions.............. 5.6 9.8 9.8 8.6 13.2 9.3
TOTAL EARNINGS......................... $ 867.0 $796.2 $ 867.0 $ 908.8 $ 872.5 $ 819.8
======== ====== ======== ======== ======== ========
FIXED CHARGES
Interest expense....................... $ 105.7 $119.5 $ 128.6 $ 135.0 $ 129.4 $ 162.4
Capitalized interest................... 3.4 6.2 5.4 5.1 5.7 5.0
Amortization of debt discount, premium
or expense........................... 5.3 0.1 0.3 0.4 0.7 0.4
Interest portion of rental expense..... 47.4 63.3 69.5 77.0 83.0 83.7
Proportionate share of fixed charges of
investees accounted for by the equity
method............................... 4.0 6.5 5.1 5.3 2.5 2.3
-------- ------ -------- -------- -------- --------
TOTAL FIXED CHARGES.................... $ 165.8 $195.6 $ 208.9 $ 222.8 $ 221.3 $ 253.8
======== ====== ======== ======== ======== ========
TOTAL EARNINGS BEFORE FIXED CHARGES.... $1,032.8 $991.8 $1,075.9 $1,131.6 $1,093.8 $1,073.6
======== ====== ======== ======== ======== ========
RATIO OF EARNINGS TO FIXED CHARGES..... 6.23 5.07 5.15 5.08 4.94 4.23
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 2, 1998, except as to Note 20, which is dated November 10, 1998,
appearing on page 32 of The Goodyear Tire & Rubber Company's Annual Report on
Form 10-K for the year ended December 31, 1997, as amended by Amendment No. 1 on
Form 10-K/A dated November 10, 1998. We also consent to the reference to us
under the heading "Experts" in such Prospectus.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Cleveland, Ohio
November 12, 1998
<PAGE> 1
EXHIBIT 24.1
TIRE 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 (the "Company"), 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, JAMES BOYAZIS, and JOHN W RICHARDSON, 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 $250,000,000 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 name 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 thereof.
IN WITNESS WHEREOF, the undersigned have subscribed or caused to be
subscribed these presents this 6th day of October, 1998.
Attest: THE GOODYEAR TIRE & RUBBER COMPANY
/s/ James Boyazis, By /s/ Samir G. Gibara
- ---------------------------- ----------------------------------------------
James Boyazis, Secretary Samir G. Gibara
Chairman of the Board, Chief Executive Officer
and President
Chairman of the Board,
Chief Executive Officer and /s/ Samir G. Gibara
President, Director ----------------------------------------------
(principal executive officer) Samir G. Gibara
Page 1 of 2
<PAGE> 2
Executive Vice President and /s/ Robert W. Tieken
Chief Financial Officer ----------------------------------------------
(principal financial officer) Robert W. Tieken
Vice President /s/ John W. Richardson
(principal accounting officer) ----------------------------------------------
John W. Richardson
Director /s/ John G. Breem
----------------------------------------------
John G. Breem
Director /s/ William E. Butler
----------------------------------------------
William E. Butler
Director /s/ Thomas H. Cruikshank
----------------------------------------------
Thomas H. Cruikshank
Director /s/ Katherine G. Farley
----------------------------------------------
Katherine G. Farley
Director /s/ William J. Hudson, Jr
----------------------------------------------
William J. Hudson, Jr
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
Director /s/ Martin D. Walker
----------------------------------------------
Martin D. Walker
Page 2 of 2
<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) ________
----------------------------------------
THE CHASE MANHATTAN 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)
DELAWARE 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, Suite 2310,
5 Empire State Plaza, Albany, New York 12223. Board of Governors of
the Federal Reserve System 20th and C Street NW, Washington, D.C.,
20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y. 10045. Federal Deposit Insurance
Corporation, 550 Seventeenth Street NW 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, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, 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. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
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. 333-06249, 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. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
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, The Chase Manhattan 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 10TH day of NOVEMBER, 1998.
THE CHASE MANHATTAN BANK
By /s/ ANDREW M. DECK
-----------------------------
/s/ ANDREW M. DECK
VICE PRESIDENT
- 3 -
<PAGE> 4
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan 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 June 30, 1998, 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 ............................ $ 12,546
Interest-bearing balances .................... 6,610
Securities:
Held to maturity securities ....................... 2,014
Available for sale securities ..................... 46,342
Federal funds sold and securities purchased under
agreements to resell ......................... 27,489
Loans and lease financing receivables:
Loans and leases, net of unearned income ..... $129,281
Less: Allowance for loan and lease losses .... 2,796
Less: Allocated transfer risk reserve ........ 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ....................... 126,485
Trading Assets .................................... 58,015
Premises and fixed assets (including capitalized
leases) ...................................... 3,001
Other real estate owned
. ................................................. 260
Investments in unconsolidated subsidiaries and
associated companies ......................... 255
Customers' liability to this bank on acceptances
outstanding .................................. 1,245
Intangible assets ................................. 1,492
Other assets ...................................... 16,408
TOTAL ASSETS ...................................... $302,162
=========
</TABLE>
- 4 -
<PAGE> 5
<TABLE>
<CAPTION>
LIABILITIES
<S> <C>
Deposits
In domestic offices ................................................. $ 99,347
Noninterest-bearing ................................................. $ 41,566
Interest-bearing .................................................... 57,781
In foreign offices, Edge and Agreement,
subsidiaries and IBF's .............................................. 80,602
Noninterest-bearing ................................................. $ 4,109
Interest-bearing .................................................... 76,493
Federal funds purchased and securities sold under agree-
ments to repurchase ...................................................... 37,760
Demand notes issued to the U.S. Treasury ................................. 1,000
Trading liabilities ...................................................... 42,941
Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases):
With a remaining maturity of one year or less ....................... 4,162
With a remaining maturity of more than one year .....................
through three years .......................................... 213
With a remaining maturity of more than three years ................. 106
Bank's liability on acceptances executed and outstanding ................. 1,245
Subordinated notes and debentures ........................................ 5,408
Other liabilities ........................................................ 11,796
TOTAL LIABILITIES ........................................................ 284,580
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus ............................ 0
Common stock ............................................................. 1,211
Surplus (exclude all surplus related to preferred stock) ................ 10,441
Undivided profits and capital reserves ................................... 5,916
Net unrealized holding gains (losses)
on available-for-sale securities ......................................... (2)
Cumulative foreign currency translation adjustments ...................... 16
TOTAL EQUITY CAPITAL ..................................................... 17,582
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ..................................... $ 302,162
=========
</TABLE>
I, Joseph L. Sclafani, E.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 )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR.)
-5-
