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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 4, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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JOHNSON CONTROLS, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
WISCONSIN 39-0380018
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification Number)
organization)
</TABLE>
5757 GREEN BAY AVENUE
MILWAUKEE, WISCONSIN 53209
(414) 228-1200
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
JOHN P. KENNEDY
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
5757 GREEN BAY AVENUE
MILWAUKEE, WISCONSIN 53209
(414) 228-1200
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
Copy to:
PHILIP J. NIEHOFF
MAYER, BROWN & PLATT
190 SOUTH LASALLE STREET
CHICAGO, ILLINOIS 60603
(312) 782-0600
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Approximate date of commencement of proposed sale to the public: From time
to time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, 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. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED(1) TO BE REGISTERED PER UNIT(2) OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, $.16 2/3 par value per
share (including common stock purchase
rights)................................
Preferred Stock, $1.00 par value per
share..................................
Debt Securities.......................... (3) (3) $1,500,000,000(3)(4) $456,677(4)
Warrants to Purchase Common Stock........
Warrants to Purchase Preferred Stock.....
Warrants to Purchase Debt Securities.....
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</TABLE>
(1) Securities registered hereunder (the "Offered Securities") may be sold
separately, together or as units with other Offered Securities registered
hereunder. The Offered Securities registered hereunder also include such
indeterminate number of shares of Common Stock and Preferred Stock that may
be issued upon conversion of convertible debt securities or convertible
preferred stock.
(2) Estimated in accordance with Rule 457 under the Securities Act of 1933, as
amended (the "Securities Act"), solely for the purpose of computing the
registration fee.
(3) Pursuant to Rule 457(o) under the Securities Act, which permits the
registration fee to be calculated on the basis of the maximum offering price
of all the securities listed, the table does not specify by each class
information as to the amount to be registered, proposed maximum offering
price per unit or proposed maximum aggregate offering price.
(4) Of the $1,500,000,000 of Offered Securities registered hereby, $51,000,000
aggregate principal amount of debt securities and warrants to purchase debt
securities were registered pursuant to Registration Statement No. 33-57685,
are unissued as of the date hereof and will remain designated for debt
securities and warrants to purchase debt securities. A registration fee of
$17,586 was previously paid with respect to such securities and is not
included in the amount stated above.
Pursuant to Rule 429 under the Securities Act, the Prospectus filed as part
of this Registration Statement relates to the securities registered hereby,
including the remaining unsold $51,000,000 principal amount of debt securities
and warrants to purchase debt securities previously registered by the Registrant
under its Registration Statement on Form S-3 (File No. 33-57685). Such
Registration Statement is amended to reflect the information contained herein.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED OCTOBER 4, 1996
PROSPECTUS
$1,500,000,000
JOHNSON CONTROLS, INC.
COMMON STOCK, PREFERRED STOCK, DEBT SECURITIES,
WARRANTS TO PURCHASE COMMON STOCK,
WARRANTS TO PURCHASE PREFERRED STOCK AND
WARRANTS TO PURCHASE DEBT SECURITIES
------------------------
Johnson Controls, Inc., a Wisconsin corporation (the "Company"), may from
time to time offer in one or more series (i) shares of Common Stock, $.16 2/3
par value per share (the "Common Stock"), (ii) shares of Preferred Stock, $1.00
par value per share (the "Preferred Stock"), (iii) unsecured debt securities
("Debt Securities"), which may be senior debt securities ("Senior Debt
Securities") or subordinated debt securities ("Subordinated Debt Securities"),
(iv) warrants to purchase Common Stock ("Common Stock Warrants"), (v) warrants
to purchase Preferred Stock ("Preferred Stock Warrants") and (vi) warrants to
purchase Debt Securities ("Debt Warrants"), with an aggregate public offering
price of up to $1,500,000,000, on terms to be determined at the time or times of
offering. The Common Stock, Preferred Stock, Debt Securities, Common Stock
Warrants, Preferred Stock Warrants and Debt Warrants (collectively referred to
herein as the "Offered Securities") may be offered, separately or together, in
separate classes or series, in amounts, at prices and on terms to be set forth
in one or more supplements to this Prospectus (each, a "Prospectus Supplement").
All specific terms of the offering and sale of the Offered Securities in
respect of which this Prospectus is being delivered will be set forth in the
applicable Prospectus Supplement and will include, when applicable: (i) in the
case of Common Stock, any public offering price and the aggregate number of
shares offered; (ii) in the case of Preferred Stock, the specific class, series,
title, any dividend, liquidation, redemption, conversion, voting and other
rights, any dividend payment dates, any sinking fund provisions, the aggregate
number of shares offered and any public offering price; (iii) in the case of
Debt Securities, the specific title, aggregate principal amount, ranking as
Senior Debt Securities or Subordinated Debt Securities, currency, form (which
may be registered or bearer or certificated or global), authorized
denominations, maturity, rate (or manner of calculation thereof) and time of
payment of interest, if any, terms for redemption at the option of the Company
or repayment at the option of the holder thereof, terms for sinking fund
payments, terms for conversion into Common Stock or Preferred Stock and any
public offering price; (iv) in the case of Common Stock Warrants, the duration,
offering price, exercise price and detachability features; (v) in the case of
Preferred Stock Warrants, description of the Preferred Stock for which each
warrant will be exercisable and the duration, offering price, exercise price and
detachability features; and (vi) in the case of Debt Warrants, description of
the Debt Securities for which each warrant will be exercisable and the duration,
offering price, exercise price and detachability features.
The applicable Prospectus Supplement will also contain information, when
applicable, about certain United States Federal income tax considerations
relating to, and any listing on a securities exchange of, the Offered Securities
covered by that Prospectus Supplement.
The Offered Securities may be offered directly, through agents designated
from time to time by the Company, or to or through underwriters or dealers. If
any agents or underwriters are involved in the sale of any of the Offered
Securities, their names and any applicable purchase price, fee, commission or
discount arrangement between or among them will be set forth in or will be
calculable from the information set forth in the applicable Prospectus
Supplement. No Offered Securities may be sold without delivery of the applicable
Prospectus Supplement describing the method and terms of the offering of those
Offered Securities. See "Plan of Distribution" for possible indemnification
arrangements with underwriters, dealers and agents.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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This Prospectus may not be used to consummate sales of the Offered Securities
unless accompanied by a Prospectus Supplement.
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, 1996
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR AN APPLICABLE PROSPECTUS
SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER,
DEALER OR AGENT. THIS PROSPECTUS AND ANY APPLICABLE PROSPECTUS SUPPLEMENT DO NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY SECURITIES
OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE
SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER SHALL UNDER
ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
IN CONNECTION WITH THIS OFFERING, UNDERWRITERS, IF ANY, MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE OFFERED
SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE, IN THE
OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports and other information with the Securities and Exchange
Commission (the "Commission"). Reports, proxy statements and other information
filed by the Company can be inspected and copied at the public reference
facilities maintained by the Commission at Judiciary Plaza, 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the Commission's Regional Offices at Seven
World Trade Center, 13th Floor, New York, New York 10048 and Citicorp Center,
Suite 1400, 500 West Madison Street, Chicago, Illinois 60661. Copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates, or at the
Commission's worldwide web site at http://www.sec.gov. Such reports, proxy
statements and other information concerning the Company may also be inspected
and copied at the offices of the New York Stock Exchange, Inc., 20 Broad Street,
New York, New York 10005.
The Company has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments and exhibits, the "Registration Statement")
under the Securities Act of 1933, as amended (the "Securities Act"), relating to
the Offered Securities. This Prospectus does not contain all of the information
set forth in the Registration Statement as permitted by the rules and
regulations of the Commission. For information with respect to the Company and
the Offered Securities, reference is hereby made to such Registration Statement.
The Registration Statement may be inspected without charge by anyone at the
office of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and
copies of all or any part thereof may be obtained from the Commission upon
payment of the prescribed fees, or at the Commission's worldwide web site.
Statements contained in this Prospectus as to the contents of any contract or
other document referred to are not necessarily complete, and in each instance
reference is made to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in all respects by such reference.
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DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed with the Commission (File No. 1-5097) are
incorporated herein by reference:
(i) the Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1995;
(ii) the Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended December 31, 1995, March 31, 1996 and June 30,
1996;
(iii) the Company's Current Reports on Form 8-K, dated December 7,
1995, July 22, 1996, September 27, 1996 and October 4, 1996; and
(iv) Item 1 of the Company's Registration Statement on Form 8-A, dated
November 30, 1994, relating to a description of the Company's
Common Stock Purchase Rights.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Offered Securities shall be deemed to be
incorporated in this Prospectus by reference and to be a part hereof from the
date of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein (or in the applicable Prospectus
Supplement) or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
The Company will provide, without charge to any person to whom a copy of
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any document incorporated by reference herein other than exhibits to
such document unless such exhibits are specifically incorporated by reference in
such document. Requests should be directed to Secretary, Johnson Controls, Inc.,
5757 North Green Bay Avenue, Milwaukee, Wisconsin 53209, telephone (414)
228-1200.
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THE COMPANY
The Company has four business segments: automotive, controls, plastics and
battery. The automotive segment is the world's largest seat systems supplier and
a major producer of interior components, including headliners, door panels,
instrument panels and parcel shelves. In December 1995, the Company acquired
approximately 75% of the Roth Freres companies, a major supplier of seating and
interior components to the European automotive industry. The controls segment is
a leading worldwide supplier of facility services and control systems to
education, health care, office, government, industrial and retail buildings. The
plastics segment is one of the world's largest producers of polyethylene
terepthalate plastic containers with manufacturing plants in the United States
and Europe, and also a leading worldwide supplier of plastic blowmolding
machinery, injection mold tooling and parts. The battery segment is a leading
supplier to the North American automotive battery market, serving both the
original equipment and replacement battery markets.
The Company was founded in 1885 as the Johnson Electric Service Company.
The Company's principal executive offices are located at 5757 North Green Bay
Avenue, Milwaukee, Wisconsin 53209 and its phone number is (414) 228-1200.
RECENT DEVELOPMENTS
On October 1, 1996, the Company acquired Prince Holding Corporation
("Prince"), a privately held automotive interiors supplier based in Holland,
Michigan. Prince is a major supplier of interior systems and components,
including overhead systems and consoles, door panels, floor consoles, visors and
armrests. Its products are included in 80 vehicle platforms, primarily for
domestic sales. The price of the acquisition was $1.35 billion, less assumed
debt and other liability adjustments.
USE OF PROCEEDS
Except as may be otherwise described in the applicable Prospectus
Supplement, the Company intends to use the net proceeds from the sale of the
Offered Securities for general corporate purposes, which may include repurchases
of outstanding long-term debt, capital expenditures, investments in
subsidiaries, working capital, repayment of borrowings under bank credit
agreements and financing of acquisitions. Other than as described under "Recent
Developments," the Company has no commitments or agreements to make any
acquisitions.
GENERAL DESCRIPTION OF THE OFFERED SECURITIES
The Company may offer under this Prospectus Common Stock, Preferred Stock,
Debt Securities, Common Stock Warrants, Preferred Stock Warrants, or Debt
Warrants or any combination of the foregoing, either individually or as units
consisting of two or more Offered Securities. The aggregate offering price of
Offered Securities offered by the Company by a Prospectus Supplement will not
exceed $1,500,000,000. If Offered Securities are offered as units, the terms of
the units will be set forth in a Prospectus Supplement.
DESCRIPTION OF THE COMMON STOCK
GENERAL
The Company's Restated Articles of Incorporation (the "Articles of
Incorporation") authorize the Company to issue up to 150,000,000 shares of
Common Stock. As of June 30, 1996, there were 41,428,528 shares of Common Stock
issued and outstanding. In addition, up to 4,532,904 shares have been reserved
as of June 30, 1996 for issuance upon the exercise of options and awards under
the Company's incentive compensation plans. The shares of Common Stock are
listed on the New York Stock Exchange under the symbol "JCI." Firstar Trust
Company, Milwaukee, Wisconsin is the transfer agent and registrar of the shares
of Common Stock. The shares of Common Stock currently outstanding are fully paid
and nonassessable, except as provided by Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law (the "WBCL")
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regarding personal liability of shareholders for all debts owing to employees of
the Company for services performed, but not exceeding six months' service in any
one case. The shares of Common Stock offered by a Prospectus Supplement, upon
issuance against full consideration therefor, will be fully paid and
nonassessable, except as provided by Section 180.0622(2)(b) of the WBCL
regarding personal liability of shareholders for all debts owing to employees of
the Company for services performed, but not exceeding six months' service in any
one case.
DIVIDENDS
After all dividends on all series of Preferred Stock have been paid or
declared and set apart for payment, the holders of the Common Stock are entitled
to receive such dividends as may be declared from time to time by the Board of
Directors of the Company (the "Board of Directors"), in its discretion, out of
funds legally available therefor.
DISSOLUTION
In the event of the dissolution of the Company, after distribution to the
holders of all shares of Preferred Stock which are entitled to a preference over
the holders of Common Stock of the full preferential amounts to which they are
entitled, the holders of Common Stock are entitled to share ratably in the
distribution of the remaining assets of the Company.
VOTING RIGHTS OF COMMON STOCK
Holders of Common Stock are entitled to one vote for each share of Common
Stock held on all questions on which shareholders of the Company are entitled to
vote, and vote together share for share with the holders of Preferred Stock as
one class, except as provided under Wisconsin law or in the Articles of
Incorporation.
PRE-EMPTIVE RIGHTS
No holder of any class of stock of the Company has any pre-emptive or
preferential rights to subscribe for or purchase any of the unissued shares of
stock of the Company, or any stock of the Company purchased by the Company, or
any bonds, certificates of indebtedness, debentures or other securities
convertible into stock of the Company or any right to subscribe for any of the
foregoing, other than such, if any, as the Board of Directors in its discretion
may from time to time determine.
CERTAIN PROVISIONS OF ARTICLES OF INCORPORATION, BY-LAWS AND WISCONSIN LAW
General
Certain provisions adopted by the Company in its Articles of Incorporation
and By-laws and certain provisions of the WBCL might discourage certain types of
transactions that involve an actual or threatened change of control of the
Company.
Voting Requirement in Connection with Certain Transactions; Voting Power
The Articles of Incorporation provide that, except as set forth below, the
affirmative vote or consent of the holders of four-fifths of all classes of
stock of the Company entitled to vote in elections of directors, considered as
one class, is required (i) for the adoption of any agreement for the merger or
consolidation of the Company with or into any other corporation or (ii) to
authorize any sale, lease, exchange, mortgage, pledge or other disposition of
all or any substantial part of the assets of the Company to, or any sale, lease,
exchange, mortgage, pledge, other disposition to the Company or any subsidiary
thereof in exchange for securities of the Company of any assets of, any other
corporation, person or other entity, if, in either case, as of the record date
for the determination of shareholders entitled to notice thereof and to vote
thereon or consent thereto such other corporation, person or entity is the
beneficial owner, directly or indirectly, of more than 10% of the outstanding
shares of stock of the Company entitled to vote in elections of directors
considered as one class. Such affirmative vote or consent is in addition to the
vote or consent of the holders of stock of the Company
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otherwise required by law, the Articles of Incorporation or any agreement
between the Company and any national securities exchange.
Any corporation, person or other entity will be deemed to be the beneficial
owner of any shares of stock of the Company (A) which it has the right to
acquire pursuant to any agreement, or upon exercise of conversion rights,
warrants or options, or otherwise or (B) which are beneficially owned, directly
or indirectly (including shares deemed owned through application of clause (A)
above), by any other corporation, person or entity with which it or its
"affiliate" or "associate,"as those terms are defined in Rule 12b-2 under the
Exchange Act, has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of stock of the Company, or which is its
"affiliate" or "associate." The outstanding shares of any class of stock of the
Company will include shares deemed owned through application of clauses (A) and
(B) above but will not include any other shares which may be issuable pursuant
to any agreement, or upon exercise of conversion rights, warrants or options, or
otherwise.
The Board of Directors has the power to determine, on the basis of
information known to it, whether (i) such other corporation, person or other
entity beneficially owns more than 10% of the outstanding shares of stock of the
Company entitled to vote in elections of directors, (ii) a corporation, person
or entity is an "affiliate" or "associate" of another and (iii) the memorandum
of understanding referred to below is substantially consistent with the
transaction covered thereby. Any such determination will be conclusive and
binding.
The foregoing provisions are not applicable to (i) any merger or
consolidation of the Company with or into any other corporation, or any sale,
lease, exchange, mortgage, pledge or other disposition of all or any substantial
part of the assets of the Company to, or any sale, lease, mortgage, pledge or
other disposition to the Company or any subsidiary thereof in exchange for
securities of the Company of any assets of, any other corporation, person or
other entity, if the Board of Directors of the Company by resolution has
approved a memorandum of understanding with such other corporation, person or
other entity, with respect to and substantially consistent with such transaction
prior to the time such other corporation, person or other entity has become a
beneficial owner of more than 10% of the shares of stock of the Company entitled
to vote in elections of directors or (ii) any merger or consolidation of the
Company with, or any sale, lease, exchange, mortgage, pledge or other
disposition to the Company or any subsidiary thereof of any assets of any
corporation of which a majority of the outstanding shares of all classes of
stock entitled to vote in elections of directors is owned of record or
beneficially by the Company and its subsidiaries.
No amendment to the Articles of Incorporation may amend, alter, change or
repeal any of the foregoing provisions, unless the amendment effecting such
amendment, alteration, change or repeal receives the affirmative vote or consent
of the holders of four-fifths of all classes of stock of the Company entitled to
vote in elections of directors, considered as one class.
Sections 180.1140 to 180.1144 of the WBCL contain certain limitations and
special voting provisions applicable to specified business combinations
involving Wisconsin corporations, including the Company, and a significant
shareholder, unless the board of directors of the corporation approves the
business combination or the shareholder's acquisition of shares before such
shares are acquired. Similarly, Sections 180.1130 to 180.1133 of the WBCL
contain special voting provisions applicable to certain business combinations,
unless specified minimum price and procedural requirements are met. Following
commencement of a takeover offer, Section 180.1134 of the WBCL imposes special
voting requirements on certain share repurchases effected at a premium to the
market and on certain asset sales by the corporation, unless, as it relates to
the potential sale of assets, the corporation has at least three independent
directors and a majority of the independent directors vote not to have such
provision apply to the corporation.
Section 180.1150 of the WBCL provides that the voting power of shares of
Wisconsin corporations, including the Company, held by any person or persons
acting as a group in excess of 20% of the voting power in the election of
directors is limited to 10% of the full voting power of those shares. This
restriction does not apply to shares acquired directly from the Company or in
certain specified transactions or shares for which full voting power has been
restored pursuant to a vote of shareholders.
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Number and Tenure of Board of Directors; Special Meetings
The By-laws provide that the Board of Directors is composed of thirteen
directors divided into three classes, consisting of four members in two classes
and five members in one class. A director may be removed from office by
shareholders prior to the expiration of his or her term but only (i) at a
special meeting called for the purpose of removing the director, (ii) by the
affirmative vote of two-thirds of the outstanding shares entitled to vote for
the election of such director and (iii) for cause; provided, however, that if
the Board of Directors, by resolution adopted by the affirmative vote of at
least two-thirds of the directors then in office plus one director recommends
removal of a director, then the shareholders may remove such director without
cause by the vote described above. A special meeting of shareholders may be
called only by the Chairman of the Board of Directors, the President or the
Board of Directors, and shall be called by the Chairman of the Board of
Directors or the President upon the demand of the holders of record of shares
representing at least 10% of all of the votes entitled to be cast at the special
meeting.
The affirmative vote of (i) shareholders possessing at least four-fifths of
the voting power of the outstanding shares of all classes of stock of the
Company generally possessing voting rights in elections for directors,
considered as one class (subject to the rights of holders of any class or series
of stock having a preference over the Common Stock as to dividends or upon
liquidation) or (ii) at least two-thirds of the directors then in office plus
one director, is required to amend, alter, change or repeal the provisions of
the By-laws described under "Number and Tenure of Board of Directors."
COMMON STOCK PURCHASE RIGHTS
The Company entered into a Rights Agreement (the "Rights Agreement") with
Firstar Trust Company and, effective as of November 30, 1994 (the "Record
Date"), declared a dividend of one common share purchase right (a "Right") for
each share of Common Stock outstanding. The Company also authorized and directed
the issuance of one Right with respect to each share of Common Stock outstanding
between the Record Date and the earliest of the Distribution Date (as defined
below), the time at which the Rights are redeemed as provided in the Rights
Agreement and November 30, 2004. Each share of Common Stock offered by a
Prospectus Supplement will have attached thereto one Right. Unless the context
otherwise requires, all references to the Common Stock in this Prospectus
include the accompanying Rights.
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired beneficial ownership of 20% or more of the outstanding
shares of Common Stock or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors prior to such time as any person
or group of affiliated persons becomes an Acquiring Person) following the
commencement of, or public announcement of an intention to make, a tender offer
or exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 20% or more of the outstanding shares of
Common Stock (the earlier of such dates being called the "Distribution Date"),
the Rights will be evidenced by certificates for shares of Common Stock.
Until the Distribution Date (or earlier redemption or expiration of the
Rights), the Rights are transferable only with the Common Stock. The Rights are
not exercisable until the Distribution Date. As soon as practicable following
the Distribution Date, separate certificates evidencing the Rights will be
mailed to holders of record of the Common Stock. Each Right entitles the
registered holder to purchase from the Company one share of Common Stock from
the Company at a price of $175.00 per share (the "Purchase Price"), subject to
adjustment. The Rights will expire on November 30, 2004, unless such date is
extended or the Rights are earlier redeemed or exchanged by the Company.
In the event that the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold after a person or group has become an Acquiring Person, each
holder of a Right will thereafter have the right to receive, upon the exercise
thereof at the then current exercise price of the Right, that number of shares
of common stock of the acquiring company which at the time of such transaction
having a market value of two times the exercise price of the Right. In the event
that any person or group of affiliated or associated persons becomes an
Acquiring Person, each holder of a Right, other than Rights beneficially owned
by the Acquiring Person (which will thereafter be void), will
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thereafter have the right to receive upon exercise that number of shares of
Common Stock having a market value of two times the exercise price of the Right.
At any time after any person or group becomes an Acquiring Person and prior
to the acquisition by such person or group of 50% or more of the outstanding
shares of Common Stock, the Board of Directors may exchange the Rights (other
than Rights owned by such person or group which will have become void), in whole
or in part, at an exchange ratio of one share of Common Stock per Right (subject
to adjustment).
At any time prior to the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 20% or more of the outstanding
shares of Common Stock, the Board of Directors may redeem the Rights in whole,
but not in part, at a price of $.01 per Right (the "Redemption Price").
The terms of the Rights may be amended by the Board of Directors without
the consent of the holders of the Rights, including an amendment to lower
certain thresholds described herein to not less than the greater of (i) the sum
of .001% and the largest percentage of the outstanding shares of Common Stock
then known to the Company to be beneficially owned by any person or group of
affiliated or associated persons and (ii) 10%, except that from and after such
time as any person or group of affiliated or associated persons becomes an
Acquiring Person no such amendment may adversely affect the interests of the
holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will not have any
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
DESCRIPTION OF THE PREFERRED STOCK
The Articles of Incorporation authorize the Board of Directors to direct
the issuance of up to 2,000,000 shares of Preferred Stock in one or more series
and with such rights, preferences, privileges and restrictions, including
dividend rights, voting rights, conversion rights, terms of redemption and
liquidation preferences, that may be fixed or designated by the Board of
Directors pursuant to articles of amendment to the Articles of Incorporation
without any further vote or action by the Company's shareholders, provided that
the aggregate liquidation preference of all shares of Preferred Stock
outstanding may not exceed $100,000,000. As of June 30, 1996, the Board of
Directors had designated 2,000 shares of the Preferred Stock as Series D
Convertible Preferred Stock, with an aggregate liquidation preference of $2,000
(the "Series D Preferred Stock"). As of June 30, 1996, 304.523 shares of Series
D Preferred Stock were issued and outstanding. The issuance of Preferred Stock
may have the effect of delaying, deferring or preventing a change in control of
the Company.
The shares of Preferred Stock offered by a Prospectus Supplement, upon
issuance against full consideration therefor, will be fully paid and
nonassessable, except as provided by Section 180.0622(2)(b) of the WBCL
regarding personal liability of shareholders for all debts owing to employees of
the Company for services performed, but not exceeding six months' service in any
one case. The specific terms of a particular series of Preferred Stock will be
described in the Prospectus Supplement relating to that series. The description
of Preferred Stock set forth below and the description of the terms of a
particular series of Preferred Stock set forth in the related Prospectus
Supplement do not purport to be complete and are qualified in their entirety by
reference to the articles of amendment to the Articles of Incorporation relating
to that series. The related Prospectus Supplement will contain a description of
certain United States Federal income tax consequences relating to the purchase
and ownership of the series of Preferred Stock described in such Prospectus
Supplement.
The rights, preferences, privileges and restrictions of the Preferred Stock
of each series will be fixed by articles of amendment to the Articles of
Incorporation relating to such series. A Prospectus Supplement, relating to each
series, will specify the terms of the Preferred Stock as follows:
(a) The maximum number of shares to constitute the series and the
distinctive designation thereof;
(b) The annual dividend rate, if any, on shares of the series, whether
such rate is fixed or variable or both, the date or dates from which
dividends will begin to accrue or accumulate;
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(c) The price at and the terms and conditions on which the shares of
the series may be redeemed;
(d) The liquidation preference, if any, that the holders of shares of
the series shall be entitled to receive upon the liquidation, dissolution
or winding up of the affairs of the Company;
(e) Whether or not the shares of the series will be subject to
operation of a retirement or sinking fund, and, if so, the extent and
manner in which any such fund shall be applied to the purchase or
redemption of the shares of the series for retirement or for other
corporate purposes, and the terms and provisions relating to the operation
of such fund;
(f) The terms and conditions, if any, on which the shares of the
series shall be convertible into, or exchangeable for, shares of Common
Stock, including the price or prices or the rate or rates of conversion or
exchange and the method, if any, of adjusting the same and whether such
conversion is mandatory or optional; and
(g) The voting rights, if any, of the shares of the series.
DIVIDENDS
The holders of Preferred Stock shall be entitled to receive dividends at
the rate per annum set by the Board of Directors, payable quarterly on the last
day of March, June, September, and December in each year for the respective
calendar quarter ending on such dates ("Dividend Periods"), when and as declared
by the Board of Directors. Such dividends shall accrue on each share of
Preferred Stock from the first day of the Dividend Period in which such share is
issued or from such other date as the Board of Directors may fix for such
purpose. All dividends on Preferred Stock shall be cumulative so that if the
Company shall not pay or set apart for payment the dividend, or any part
thereof, for any Dividend Period, on the Preferred Stock then issued and
outstanding, such deficiency in the dividend on the Preferred Stock shall
thereafter be fully paid or declared and set apart for payment, but without
interest, before any dividend shall be paid or declared and set apart for
payment on the Common Stock. The holders of Preferred Stock shall not be
entitled to participate in any other or additional earnings or profits of the
Company, except for such premiums, if any, as may be payable in case of
redemption, liquidation, dissolution or winding up of the Company.
Any dividend paid upon the Preferred Stock at a time when any accrued
dividends for any prior Dividend Period are delinquent shall be expressly
declared to be in whole or partial payment of the accrued dividends to the
extent thereof, beginning with the earliest Dividend Period for which dividends
are then wholly or partly delinquent, and shall be so designated to each
shareholder to whom payment is made. No dividends shall be paid upon any shares
of any series of Preferred Stock for a current Dividend Period unless there
shall have been paid or declared and set apart for payment dividends required to
be paid to the holders of each other series of Preferred Stock for all past
Dividend Periods of such other series. If any dividends are paid on any of the
Preferred Stock with respect to any past Dividend Period at any time when less
than the total dividends then accumulated and payable for all past Dividend
Periods on all of the Preferred Stock then outstanding are to be paid or
declared and set apart for payment, then the dividends being paid shall be paid
on each series of Preferred Stock in the proportions that the dividends then
accumulated and payable on each series for all past Dividend Periods bear to the
total dividends then accumulated and payable for all such past Dividend Periods
on all outstanding Preferred Stock.
LIQUIDATION, DISSOLUTION OR WINDING UP
In case of voluntary or involuntary liquidation, dissolution or winding up
of the Company, the holders of each series of Preferred Stock shall be entitled
to receive out of the assets of the Company in money or money's worth the
liquidation preference with respect to that series of Preferred Stock, together
with all accrued but unpaid dividends thereon (whether or not earned or
declared), before any of such assets shall be paid or distributed to holders of
Common Stock. In case of voluntary or involuntary liquidation, dissolution or
winding up of the Company, if the assets shall be insufficient to pay the
holders of all of the series of Preferred Stock then outstanding the full
amounts to which they may be entitled, the holders of each outstanding series
shall share ratably in such assets in proportion to the amounts which would be
payable with respect to such
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series if all amounts payable thereon were paid in full. The consolidation or
merger of the Company with or into any other corporation, or a sale of all or
any part of its assets, shall not be deemed a liquidation, dissolution or
winding up of the Company within the meaning of this paragraph.
REDEMPTION
Except as otherwise provided with respect to a particular series of
Preferred Stock, the following general redemption provisions shall apply to each
series of Preferred Stock.
On or prior to the date fixed for redemption of a particular series of
Preferred Stock or any part thereof as specified in the notice of redemption for
such series, the Company shall deposit adequate funds for such redemption, in
trust for the account of holders of such series, with a bank having trust powers
or a trust company in good standing, organized under the laws of the United
States or the State of Wisconsin doing business in the State of Wisconsin and
having capital, surplus and undivided profits aggregating at least $1,000,000,
and if the name and address of such bank or trust company and the deposit of or
intent to deposit the redemption funds in such trust account shall have been
stated in such notice of redemption, then from and after the mailing of such
notice and the making of such deposit the shares of such series called for
redemption shall no longer be deemed to be outstanding for any purpose
whatsoever, and all rights of the holders of such shares in or with respect to
the Company shall cease and terminate except only the right of the holders of
such shares (i) to transfer such shares prior to the date fixed for redemption,
(ii) to receive the redemption price of such shares, including accrued but
unpaid dividends to the date fixed for redemption, without interest, upon
surrender of the certificate or certificates representing the shares to be
redeemed, and (iii) on or before the close of business on the fifth day
preceding the date fixed for redemption to exercise privileges of conversion, if
any, not previously expired. Any moneys so deposited by the Company which shall
remain unclaimed by the holders of the shares called for redemption and not
converted shall, at the end of six years after the date fixed for redemption, be
paid to the Company upon its request, after which repayment the holders of the
shares called for redemption shall no longer look to such bank or trust company
for the payment of the redemption price but shall look only to the Company or to
others, as the case may be, for the payment of any lawful claim for such moneys
which holders of such shares may still have. After such six-year period, the
right of any shareholder or other person to receive such payment may be
forfeited in the manner and with the effect provided under Wisconsin law. Any
portion of the moneys so deposited by the Company, in respect of shares of
Preferred Stock called for redemption that are converted into Common Stock,
shall be repaid to the Company upon its request.
In case of redemption of only a part of a series of Preferred Stock, the
Company shall designate by lot, in such manner as the Board of Directors may
determine, the shares to be redeemed, or shall effect such redemption pro rata.
CONVERSION RIGHTS
Except as otherwise provided with respect to a particular series of
Preferred Stock, the following general conversion provisions shall apply to each
series of Preferred Stock that is convertible into Common Stock.
All shares of Common Stock issued upon conversion shall be fully paid and
nonassessable, and shall be free of all taxes, liens and charges with respect to
the issue thereof except taxes, if any, payable by reason of issuance in a name
other than that of the holder of the share or shares converted and except as
otherwise provided by applicable Wisconsin law.
The number of shares of Common Stock issuable upon conversion of a
particular series of Preferred Stock at any time shall be the quotient obtained
by dividing the aggregate conversion value of the shares of such series
surrendered for conversion, by the conversion price per share of Common Stock
then in effect for such series. The Company shall not be required, however, upon
any such conversion, to issue any fractional share of Common Stock, but in lieu
thereof the Company shall pay to the holder who would otherwise be entitled to
receive such fractional share if issued, a sum in cash equal to the value of
such fractional share at the rate of the then market value per share of Common
Stock which for such purposes shall mean the last reported sale price of Common
Stock on the New York Stock Exchange. Shares of Preferred Stock shall be
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<PAGE> 12
deemed to have been converted as of the close of business on the date of receipt
at the office of the transfer agent of the certificates therefor, duly endorsed,
together with written notice by the holder of his election to convert the same.
The basic conversion price per share of Common Stock for a series of
Preferred Stock, as fixed by the Board of Directors, shall be subject to
adjustment from time to time as follows:
(i) In case the Company shall (A) pay a dividend or make a
distribution to all holders of outstanding shares of Common Stock as a
class in shares of Common Stock, (B) subdivide or split the outstanding
shares of Common Stock into a larger number of shares, or (C) combine the
outstanding shares of Common Stock into a smaller number of shares, the
basic conversion price per share of Common Stock in effect immediately
prior thereto shall be adjusted retroactively so that the holder of each
outstanding share of each series of Preferred Stock which by its terms is
convertible into Common Stock shall thereafter be entitled to receive upon
the conversion of such share the number of shares of Common Stock which
such holder would have owned and been entitled to receive after the
happening of any of the events described above had such share of such
series been converted immediately prior to the happening of such event. An
adjustment made pursuant to this clause (i) shall become effective
retroactively immediately after such record date in the case of a dividend
or distribution and immediately after the effective date in the case of a
subdivision, split or combination. Such adjustments shall be made
successively whenever any event described in this clause (i) shall occur.
(ii) In case the Company shall issue to all holders of Common Stock as
a class any rights or warrants enabling them to subscribe for or purchase
shares of Common Stock at a price per share less than the current market
price per share of Common Stock at the record date for determination of
shareholders entitled to receive such rights or warrants, the basic
conversion price per share of Common Stock in effect immediately prior
thereto for each series of Preferred Stock which by its terms is
convertible into Common Stock shall be adjusted retroactively by
multiplying such basic conversion price by a fraction, of which the
numerator shall be the sum of number of shares of Common Stock outstanding
at such record date and the number of shares of Common Stock which the
aggregate exercise price (before deduction of underwriting discounts or
commissions and other expenses of the Company in connection with the issue)
of the total number of shares so offered for subscription or purchase would
purchase at such current market price per share and of which the
denominator shall be the sum of the number of shares of Common Stock
outstanding at such record date and the number of additional shares of
Common Stock so offered for subscription or purchase. An adjustment made
pursuant to this clause (ii) shall become effective retroactively
immediately after the record date for determination of shareholders
entitled to receive such rights or warrants. Such adjustments shall be made
successively whenever any event described in this clause (ii) shall occur.
(iii) In case the Company shall distribute to all holders of Common
Stock as a class evidences of its indebtedness or assets (other than cash
dividends), the basic conversion price per share of Common Stock in effect
immediately prior thereto for each series of Preferred Stock which by its
terms is convertible into Common Stock shall be adjusted retroactively by
multiplying such basic conversion price by a fraction, of which the
numerator shall be the difference between the current market price per
share of Common Stock at the record date for determination of shareholders
entitled to receive such distribution and the fair value (as determined by
the Board of Directors) of the portion of the evidences of indebtedness or
assets (other than cash dividends) so distributed applicable to one share
of Common Stock and of which the denominator shall be the current market
price per share of Common Stock. An adjustment made pursuant to this clause
(iii) shall become effective retroactively immediately after such record
date. Such adjustments shall be made successively whenever any event
described in this clause (iii) shall occur.
For the purpose of any computation under clause (iii) above, the current
market price per share of Common Stock on any date shall be deemed to be the
average of the high and low sales prices of the Common Stock, as reported in the
New York Stock Exchange -- Composite Transactions (or such other principal
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market quotation as may then be applicable to such Common Stock) for each of the
30 consecutive trading days commencing 45 trading days before such date.
No adjustment shall be made in the basic conversion price for any series of
Preferred Stock in effect immediately prior to such computation if the amount of
such adjustment would be less than fifty cents; provided, however, that any
adjustments which by reason of this paragraph are not required to be made shall
be carried forward and taken into account in any subsequent adjustment; and
provided further that anything to the contrary in the foregoing notwithstanding
any adjustment required for purposes of making the computations described above
shall be made not later than the earlier of (x) 3 years after the effective date
described above for such adjustment or (y) the date as of which such adjustment
would require an increase or decrease of at least 3% in the aggregate number of
shares of Common Stock issued and outstanding on the first date on which an
event occurred which required the making of a computation described above. All
calculations shall be made to the nearest cent or to the nearest 1/100th of a
share, as the case may be.
In the case of any capital reorganization or reclassification of Common
Stock, or if the Company shall consolidate with or merge into, or sell or
dispose of all or substantially all of its property and assets, to any other
corporation, proper provisions shall be made as part of the terms of such
capital reorganization, reclassification, consolidation, merger or sale that any
shares of a particular series of Preferred Stock at the time outstanding shall
thereafter be convertible into the number of shares of stock or other securities
or property to which a holder of the number of shares of Common Stock
deliverable upon conversion of such shares of a particular series would have
been entitled upon such capital reorganization, reclassification, consolidation
or merger.
No adjustment with respect to dividends upon any series of Preferred Stock
or with respect to dividends upon Common Stock shall be made in connection with
any conversion.
Whenever there is an issue of additional shares of Common Stock requiring a
change in the conversion price as provided above, and whenever there occurs any
other event which results in a change in the existing conversion rights of the
holders of shares of a series of Preferred Stock, the Company shall file with
its transfer agent or agents and at its principal office in Milwaukee,
Wisconsin, a statement signed by the President or a Vice President and by the
Treasurer or Assistant Treasurer of the Company, describing specifically such
issue of additional shares of Common Stock or such other event (and, in the case
of a capital reorganization, reclassification, consolidation or merger, the
terms thereof) and the actual conversion prices or basis of conversion as
changed by such issue or event and the change, if any, in the securities
issuable upon conversion. Whenever there are issued by the Company to all
holders of Common Stock as a class any rights or warrants enabling them to
subscribe for or purchase shares of Common Stock, the Company shall also file in
like manner a statement describing the same and the consideration receivable by
the Company therefrom. The statement so filed shall be open to inspection by any
holder of record of shares of any series of Preferred Stock.
The Company shall at all times have authorized and shall at all times
reserve and set aside a sufficient number of duly authorized shares of Common
Stock for the conversion of all stock of all then outstanding series of
Preferred Stock which are convertible into Common Stock.
REISSUANCE OF SHARES
Any shares of Preferred Stock retired by purchase, redemption, through
conversion, or through the operation of any sinking fund or redemption or
purchase account, shall thereafter have the status of authorized but unissued
shares of Preferred Stock, and may thereafter be reissued as part of the same
series or may be reclassified and reissued by the Board of Directors in the same
manner as any other authorized and unissued shares of Preferred Stock.
VOTING RIGHTS
Holders of Preferred Stock shall be entitled to one vote for each share
held on all questions on which shareholders of the Company are entitled to vote
and shall vote together share for share with the holders of
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Common Stock as one class, except as otherwise provided by law or as described
below or as otherwise determined by the Board of Directors at the time of the
establishment of such series of Preferred Stock.
Whenever dividends payable on any series of Preferred Stock shall be in
arrears in an aggregate amount equivalent to six full quarterly dividends on the
shares of all of the Preferred Stock of that series then outstanding, the
holders of Preferred Stock of that series shall have the exclusive and special
right, voting separately as a class, to elect two directors of the Company, and
the number of directors constituting the Board of Directors shall be increased
to the extent necessary to effectuate such right. Whenever such right of the
holders of any series of the Preferred Stock shall have vested, such right may
be exercised initially either at a special meeting of the holders of such series
of the Preferred Stock, or at any annual meeting of shareholders, and thereafter
at annual meetings of shareholders. The right of the holders of any series of
the Preferred Stock voting separately as a class to elect members of the Board
of Directors of the Company shall continue until such time as all dividends
accumulated on such series of the Preferred Stock shall have been paid in full,
at which time the special right of the holders of such series of the Preferred
Stock to vote separately as a class for the election of directors shall
terminate, subject to revesting in the event of each and every subsequent
default in an aggregate amount equivalent to six full quarterly dividends.
At any time when such special voting power shall have vested in the holders
of any series of the Preferred Stock as described in the preceding paragraph, a
proper officer of the Company shall, upon the written request of the holders of
record of at least 10% of such series of the Preferred Stock then outstanding
addressed to the Secretary of the Company, call a special meeting of the holders
of such series of the Preferred Stock for the purpose of electing directors.
Such meeting shall be held at the earliest practicable date in such place as may
be designated pursuant to the By-laws (or if there be no designation, at the
principal office of the Company in Milwaukee, Wisconsin). If such meeting shall
not be called by the proper officers of the Company within 20 days after
personal service of such written request upon the Secretary of the Company, or
within 30 days after mailing the same within the United States by registered or
certified mail addressed to the Secretary of the Company at its principal
office, then the holders of record of at least 10% of such series of the
Preferred Stock then outstanding may designate in writing one of their number to
call such meeting at the expense of the Company, and such meeting may be called
by such person so designated upon the notice required for annual meetings of
shareholders and shall be held in Milwaukee, Wisconsin. Notwithstanding the
foregoing, no such special meeting shall be called during the period within 90
days immediately preceding the date fixed for the next annual meeting of
shareholders.
At any annual or special meeting at which the holders of any series of the
Preferred Stock shall have the special right, voting separately as a class, to
elect directors as described above, the presence, in person or by proxy, of the
holders of 33 1/3% of such series of the Preferred Stock shall be required to
constitute a quorum of such series for the election of any director by the
holders of such series as a class. At any such meeting or adjournment thereof,
(A) the absence of a quorum of such series of the Preferred Stock shall not
prevent the election of directors other than those to be elected by such series
of the Preferred Stock voting as a class, and the absence of a quorum for the
election of such other directors shall not prevent the election of the directors
to be elected by such series of the Preferred Stock voting as a class and (B) in
the absence of either or both such quorums, a majority of the holders present in
person or by proxy of the stock or stocks which lack a quorum shall have power
to adjourn the meeting for the election of directors which they are entitled to
elect, from time to time until a quorum shall be present, without notice other
than announcement at the meeting.
During any period in which the holders of any series of the Preferred Stock
have the right to vote as a class for directors as described above, any
vacancies in the Board of Directors shall be filled only by vote of a majority
(even if that be only a single director) of the remaining directors theretofore
elected by the holders of the series or class of stock which elected the
directors whose office shall have become vacant. During such period the
directors so elected by the holders of any series of the Preferred Stock shall
continue in office (A) until the next succeeding annual meeting or until their
successors, if any, are elected by such holders and qualify, or (B) unless
required by applicable law to continue in office for a longer period, until
termination of the right of the holders of such series of the Preferred Stock to
vote as a class for directors, if earlier. If and to the extent permitted by
applicable law, immediately upon any termination of the right of the holders of
any
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series of the Preferred Stock to vote as a class for directors as provided
herein, the term of office of the directors then in office so elected by the
holders of such series shall terminate.
The affirmative vote or written consent of the holders of record of at
least two-thirds of the outstanding shares of a series of the Preferred Stock
shall be a prerequisite of the right of the Company:
(A) To create any shares or any securities convertible into or
evidencing the right to purchase shares ranking prior to such series of the
Preferred Stock with respect to the payment of dividends or of assets upon
liquidation, dissolution or winding up; or
(B) To change the designations, preferences, limitations, or relative
rights of the outstanding shares of such series of Preferred Stock in any
manner prejudicial to the holders thereof.
The affirmative vote or written consent of the holders of a majority of the
outstanding shares of each series of Preferred Stock shall be a prerequisite to
the right of the Company to authorize any shares of Preferred Stock in excess of
2,000,000 shares or any other shares ranking on a parity with Preferred Stock
with respect to the payment of dividends or of assets upon liquidation,
dissolution or winding up.
RESTRICTIONS IN EVENT OF DEFAULT IN DIVIDENDS ON PREFERRED STOCK
If at any time the Company shall have failed to pay dividends in full on
the Preferred Stock, thereafter and until dividends in full, including all
accrued and unpaid dividends for all past quarterly dividend periods on the
Preferred Stock outstanding, shall have been declared and set apart in trust for
payment or paid, or if at any time the Company shall have failed to pay in full
amounts payable with respect to any obligations to retire shares of the
Preferred Stock, thereafter and until such amounts shall have been paid in full
or set apart in trust for payment (a) the Company, without the affirmative vote
or consent of the holders of at least 66 2/3% of the Preferred Stock at the time
outstanding given in person or by proxy, either in writing or by resolution
adopted at a special meeting called for the purpose, at which the holders of the
Preferred Stock shall vote separately as a class, regardless of series, shall
not redeem less than all of the Preferred Stock at such time outstanding; (b)
the Company shall not purchase any Preferred Stock except in accordance with a
purchase offer made in writing to all holders of Preferred Stock of all series
upon such terms as the Board of Directors in its sole discretion after
consideration of the respective annual dividend rate and other relative rights
and preferences of the respective series, shall determine (which determination
shall be final and conclusive) will result in fair and equitable treatment among
the respective series; provided that (i) the Company, to meet the requirements
of any purchase, retirement or sinking fund provisions with respect to any
series, may use shares of such series acquired by it prior to such failure and
then held by it as treasury stock and (ii) nothing shall prevent the Company
from completing the purchase or redemption of shares of Preferred Stock for
which a purchase contract was entered into for any purchase, retirement or
sinking fund purposes, or the notice of redemption of which was initially
mailed, prior to such failure; and (c) the Company shall not redeem, purchase or
otherwise acquire, or permit any subsidiary to purchase or acquire any shares of
any other class of stock of the Company ranking junior to the Preferred Stock as
to dividends and upon liquidation.
SERIES D PREFERRED STOCK
General
The shares of Series D Preferred Stock have a stated value ("Stated Value")
of $512,000 per share.
Shares of Series D Preferred Stock may be issued only to a trustee acting
on behalf of an employee stock ownership plan or other employee benefit plan of
the Company. In the event of any transfer of shares of Series D Preferred Stock,
including a distribution to participants of an employee benefit plan, to any
person other than the Company or the trustee of any such plan, the shares of
Series D Preferred Stock so transferred, upon such transfer and without any
further action by the Company or the holder, shall be automatically converted
into shares of Common Stock, as described below; provided, however, that the
pledge of Series D Preferred Stock as collateral under any credit agreement for
the financing or refinancing of the initial purchase of the Series D Preferred
Stock by such employee stock ownership plan or other employee benefit plan of
the Company shall not constitute a transfer for purposes of this paragraph.
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See "Description of the Common Stock -- Certain Provisions of Articles of
Incorporation, By-laws and Wisconsin Law."
Dividends and Distributions
The holders of shares of Series D Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally
available therefor, cash dividends ("Preferred Dividends") in an amount per
share equal to $39,680 per share per annum (subject to adjustment), and no more,
payable quarterly in arrears on the last day of March, June, September and
December of each year (each a "Dividend Payment Date"). Accumulated but unpaid
Preferred Dividends shall cumulate as of the Dividend Payment Date on which they
first become payable, but no interest shall accrue on accumulated but unpaid
Preferred Dividends.
So long as any Series D Preferred Stock shall be outstanding, no dividend
shall be declared or paid or set apart for payment on any other series of stock
ranking on a parity with the Series D Preferred Stock as to dividends ("Parity
Stock"), unless there shall also be or have been declared and paid or set apart
for payment on the Series D Preferred Stock dividends for all dividend payment
periods of the Series D Preferred Stock ending on or before the dividend payment
date of such Parity Stock, ratably in proportion to the respective amounts of
dividends accumulated and unpaid through such dividend payment period on the
Series D Preferred Stock, and accumulated and unpaid on such Parity Stock
through the dividend payment period on such Parity Stock next preceding such
dividend payment period. So long as any Series D Preferred Stock shall be
outstanding, in the event that full cumulative dividends on the Series D
Preferred Stock have not been declared and paid or set apart for payment when
due, the Company shall not declare or pay or set apart for payment any dividends
or make any other distributions on, or make any payment on account of the
purchase, redemption or other retirement of any other class of stock or series
thereof of the Company ranking, as to dividends or as to distributions in the
event of a liquidation, dissolution or winding-up of the Company, junior to the
Series D Preferred Stock ("Junior Stock") until full cumulative and unpaid
dividends on the Series D Preferred Stock shall have been paid or declared and
set apart for payment; provided, however, that the foregoing shall not apply to
(i) any dividend payable solely in any shares of any Junior Stock, or (ii) the
acquisition of shares of any Junior Stock either (x) pursuant to any employee or
director incentive or benefit plan or arrangement (including any employment,
severance or consulting agreement) of the Company or any subsidiary of the
Company or (y) in exchange solely for shares of any other Junior Stock. Subject
to the foregoing provisions, the Board of Directors may declare and the Company
may pay or set apart for payment dividends and other distributions on any other
Junior Stock or Parity Stock, and may purchase or otherwise redeem any of the
Junior Stock or Parity Stock or any warrants, rights, or options or other
securities exercisable for or convertible into any of the Junior Stock or Parity
Stock and the holders of shares of the Series D Preferred Stock shall not be
entitled to share therein.
Voting Rights
The holders of Series D Preferred Stock shall be entitled to vote on all
matters submitted to a vote of the holders of Common Stock, voting together with
the holders of Common Stock as one class. Each share of the Series D Preferred
Stock shall be entitled to a number of votes equal to the number of shares of
Common Stock into which such share of Series D Preferred Stock could be
converted on the record date for determining the stockholders entitled to vote,
rounded to the nearest one-tenth of a vote. Whenever the "Conversion Ratio" (as
defined below) is adjusted, the voting rights of the Series D Preferred Stock
shall also be similarly adjusted.
Liquidation, Dissolution or Winding-Up
Upon any voluntary or involuntary liquidation, dissolution or winding-up of
the Company, the holders of Series D Preferred Stock shall be entitled to
receive out of assets of the Company which remain after satisfaction in full of
all valid claims of creditors of the Company and which are available for payment
to stockholders, and subject to the rights of the holders of any stock of the
Company ranking senior to or on a parity with the Series D Preferred Stock in
respect of distributions upon liquidation, dissolution or winding-up
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of the Company, before any amount shall be paid or distributed among the holders
of Common Stock or any other shares ranking junior to the Series D Preferred
Stock in respect of distributions upon liquidation, dissolution or winding-up of
the Company, liquidating distributions in an amount per share equal to the par
value of a share of Series D Preferred Stock ($1.00) plus an amount equal to all
accrued and unpaid dividends thereon to the date fixed for distribution, and no
more. After payment of the full amount to which they are entitled as described
by the foregoing provisions, the holders of shares of Series D Preferred Stock
shall not be entitled to any further right or claim to any of the remaining
assets of the Company.
Conversion into Common Stock
A holder of shares of Series D Preferred Stock shall be entitled at any
time, but not later than the close of business on the date fixed for redemption
of such shares, to cause any or all of such shares to be converted into shares
of Common Stock, initially at a conversion rate equal to ten thousand (10,000)
shares of Common Stock for each one share of Series D Preferred Stock, subject
to adjustment (and, as so adjusted, rounded to the nearest ten-thousandth, is
hereinafter sometimes referred to as the "Conversion Ratio"); provided, however,
that, in no event shall the Conversion Ratio be greater than the Stated Value
divided by the par value of one share of Common Stock.
Redemption At the Option of the Company
The Series D Preferred Stock shall be redeemable, in whole or in part, at
the option of the Company beginning on June 1, 1996 at a price of 103.10% of the
Stated Value of such shares, declining to a price of 100% of the Stated Value
after June 1, 2000, plus, in each case, an amount equal to all accrued and
unpaid dividends thereon to the date fixed for redemption. Payment of the
redemption price shall be made at the option of the Company in cash or shares of
Common Stock, or a combination thereof.
In the event (i) there is a change in the federal income tax laws of the
United States or a determination by a court of competent jurisdiction, in either
case, which has the effect of precluding the Company from claiming any of the
tax deductions for dividends paid on the Series D Preferred Stock when such
dividends are used as provided under Section 404(k)(2) of the Internal Revenue
Code of 1986, as amended (the "Code"), as in effect on the date shares of Series
D Preferred Stock are initially issued, or (ii) the Johnson Controls, Inc.
Savings and Investment Plan, as the same may be amended, or any successor plan
(the "Plan") is determined by the Internal Revenue Service not to be qualified
within the meaning of Sections 401(a) and 4975(e)(7) of the Code, the Company
may, in its sole discretion, elect to redeem any or all of the shares of Series
D Preferred Stock for the Stated Value thereof plus accrued and unpaid
dividends.
Redemption at the Option of the Holder
Subject to the restrictions of the WBCL, shares of Series D Preferred Stock
shall be redeemed by the Company for cash or, if the Company so elects, in
shares of Common Stock, or a combination of such shares and cash (any such
shares of Common Stock to be valued for such purpose in accordance with the
formula described above), at a redemption price equal to the Stated Value plus
accrued and unpaid dividends thereon to the date fixed for redemption, at the
option of the holder, at any time and from time to time upon notice to the
Company given not less than five (5) business days prior to the date fixed by
the holder in such notice for such redemption, (i) when and to the extent
necessary for such holder to provide for distributions required to be made
under, or to satisfy an investment election provided to participants in
accordance with, the Plan to participants in the Plan or (ii) in the event that
the Plan is not determined by the Internal Revenue Service to be qualified
within the meaning of Sections 401(a) and 4975(e)(7) of the Code.
Ranking; Attributable Capital and Adequacy of Surplus; Retirement of Shares
The Series D Preferred Stock shall rank senior to the Common Stock as to
the payment of dividends and the distribution of assets on liquidation,
dissolution and winding-up of the Company, and, unless otherwise provided in the
Articles of Incorporation, as the same may be amended, or articles of amendment
relating to a subsequent series of Preferred Stock, par value $1.00 per share,
of the Company, the Series D Preferred Stock
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shall rank on a parity with all other series of the Company's Preferred Stock,
par value $1.00, as to payment of dividends and the distribution of assets on
liquidation, dissolution or winding-up.
In addition to any vote of stockholders required by law, the Articles of
Incorporation or the provisions described herein, the vote of the holders of a
majority of the outstanding shares of Series D Preferred Stock shall be required
to increase the par value of the Common Stock or otherwise increase the capital
of the Company allocable to the Common Stock for the purpose of the WBCL if, as
a result thereof, the surplus of the Company for purposes of the WBCL would be
less than the amount of preferred dividends that would accrue on the then
outstanding shares of Series D Preferred Stock during the following three years.
DESCRIPTION OF THE DEBT SECURITIES
The following description of the Debt Securities sets forth the material
terms and provisions of the Debt Securities to which any Prospectus Supplement
may relate. The Senior Debt Securities are to be issued under an Indenture,
dated as of February 22, 1995, as amended (the "Senior Indenture"), between the
Company and Chase Manhattan Bank Delaware, as Trustee (the "Trustee"), a copy of
which is incorporated by reference as an exhibit to the Registration Statement
of which this Prospectus is a part. The Subordinated Debt Securities are to be
issued under an Indenture between the Company and the Trustee (the "Subordinated
Indenture"), a copy of the form of which is filed as an exhibit to the
Registration Statement of which this Prospectus is a part. The Senior Indenture
and the Subordinated Indenture are sometimes referred to herein collectively as
the "Indentures" and each individually as an "Indenture." The particular terms
of the Debt Securities offered by any Prospectus Supplement (the "Offered Debt
Securities") and the extent, if any, to which such general provisions may apply
to the Offered Debt Securities, will be described in the Prospectus Supplement
relating to such Offered Debt Securities.
The following summaries of the material provisions of the Indentures and
the Debt Securities do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all of the provisions of the
Indentures, including the definitions therein of certain terms, and such Debt
Securities. Wherever particular articles, sections or defined terms of an
Indenture are referred to, it is intended that such articles, sections or
defined terms shall be incorporated herein by reference, and the statement in
connection with which such reference is made is qualified in its entirety by
such reference.
GENERAL
The Indentures do not limit the amount of debt, either secured or
unsecured, which may be issued by the Company under the Indentures or otherwise.
The Debt Securities may be issued in one or more series with the same or various
maturities and may be sold at par, a premium or an original issue discount. Debt
Securities sold at an original issue discount may bear no interest or interest
at a rate which is below market rates.
Since the Company is a holding company, the right of the Company, and hence
the rights of creditors and shareholders of the Company, to participate in any
distribution of assets of any subsidiary upon its liquidation or reorganization
or otherwise is accordingly subject to prior claims of creditors of the
subsidiary, except to the extent that claims of the Company as a creditor of the
subsidiary may be recognized.
The Prospectus Supplement relating to the particular Debt Securities
offered thereby will describe the following terms of the Offered Debt
Securities: (i) the title of the Offered Debt Securities; (ii) any limit on the
aggregate principal amount of the Offered Debt Securities; (iii) the price
(expressed as a percentage of the aggregate principal amount thereof) at which
the Offered Debt Securities will be issued; (iv) the date or dates on which the
Offered Debt Securities mature and any provisions for the extension of any
maturity date or dates; (v) the rate or rates (which may be fixed or variable)
per annum at which the Offered Debt Securities will bear interest, if any, or
the method by which such rate or rates will be determined including, if
applicable, any remarketing option or similar methods; (vi) the date from which
such interest will accrue, the dates on which such interest, if any, will be
payable, the date on which payment of such interest will commence and any
Regular Record Dates applicable to the dates on which interest will be so
payable; (vii) the place or places where the principal of (and premium, if any)
and interest, if any, on the series will be
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payable and each office or agency where the Offered Debt Securities may be
presented for transfer or exchange; (viii) the dates on which and the price or
prices at which the Offered Debt Securities will, pursuant to any mandatory
sinking fund provisions, or may, pursuant to any optional sinking fund
provisions, be redeemed by the Company, and the other terms and provisions of
such sinking fund; (ix) the currency in which payment of the principal of,
premium, if any, and interest on, the Offered Debt Securities will be payable,
if other than the currency of the United States; (x) the period or periods
within which, and the terms and conditions upon which, an election may be made
by the Company or a holder, as the case may be, for payment of the principal
(and premium, if any) and interest, if any, on the series in the currency, other
than that in which the series is stated to be payable; (xi) whether such Offered
Debt Securities are to be issued in the form of one or more permanent Global
Securities and, if so, the identity of the Depositary for such Global Security
or Securities; (xii) the date after which and the price or prices at which and
the currency in which the Offered Debt Securities may, pursuant to any optional
redemption provisions, be redeemed at the option of the Company or of the Holder
thereof and the other terms and provisions of such optional redemption; (xiii)
the inapplicability of certain provisions relating to discharge and defeasance
described below under "Defeasance, Satisfaction and Discharge Prior to Maturity
or Redemption;" (xiv) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which the Offered Debt Securities will be
issuable; (xv) information with respect to book-entry procedures, if any; (xvi)
any deletions from, modifications of or additions to the Events of Default or
covenants with respect to the Offered Debt Securities; and (xvii) any other
terms of the Offered Debt Securities (which terms shall not be inconsistent with
the provisions of the applicable Indenture). Unless otherwise indicated in the
Prospectus Supplement, principal of (and premium, if any) and interest, if any,
on the Offered Debt Securities will be payable, and transfers of the Offered
Debt Securities will be registrable, at the Corporate Trust Office of the
Trustee, provided 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 it appears
in the Debt Security Register. (Sections 3.01 and 3.03)
Unless otherwise indicated in the Prospectus Supplement, the Offered Debt
Securities will be issued only in fully registered form without coupons in
denominations of U.S. $1,000 or any integral multiple thereof, or the equivalent
thereof in Foreign Currency. (Section 3.02) No service charge will be made for
any registration of transfer or exchange of Offered Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. (Section 3.06)
If the purchase price of any of the Offered Debt Securities is denominated
in a foreign currency or currencies or foreign currency unit or units or if the
principal of (and premium, if any) or interest, if any, on any series of Offered
Debt Securities is payable in a foreign currency or currencies or foreign
currency unit or units, the restrictions, elections, tax consequences, specific
terms and other information with respect to such issue of Offered Debt
Securities and such foreign currency or currencies or foreign currency unit or
units will be set forth in the applicable Prospectus Supplement relating
thereto.
The Company shall not be required to (i) issue, register the transfer of,
or exchange Debt Securities of any series during the period from 15 days prior
to the mailing of notice of redemption of Debt Securities of that series to the
date of such mailing or (ii) register the transfer of or exchange any Debt
Security so selected for redemption, except the unredeemed portion of any Debt
Security being redeemed in part. (Section 3.06)
Some of the Debt Securities may be issued under the applicable Indenture as
Original Issue Discount Securities to be sold at a substantial discount below
their principal amount. Federal income tax and other considerations applicable
to any such Original Issue Discount Securities will be described in the
Prospectus Supplement relating thereto.
CONVERSION AND EXCHANGE
The terms, if any, on which Debt Securities of any series are convertible
into or exchangeable for Common Stock or Preferred Stock, property or cash, or a
combination of any of the foregoing, will be set forth in the Prospectus
Supplement relating thereto. Such terms may include provisions for conversion or
exchange, either mandatory, at the option of the holder, or at the option of the
Company, in which the number of shares
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of Common Stock or Preferred Stock to be received by the holders of the Debt
Securities would be calculated according to the factors and at such time as set
forth in the related Prospectus Supplement.
GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in the
form of one or more Global Securities that will be deposited with, or on behalf
of, a Depositary identified in the Prospectus Supplement relating to such
series.
The specific terms of the depositary arrangement with respect to a series
of Debt Securities will be described in the Prospectus Supplement relating to
such series. The Company anticipates that the following provisions will apply to
all depositary arrangements.
Upon the issuance of a Global Security, the Depositary for such Global
Security or its nominee will credit, on its book-entry registration and transfer
system, the respective principal amounts of the Debt Securities represented by
such Global Security. Such accounts shall be designated by the underwriters or
agents with respect to such Debt Securities or by the Company if such Debt
Securities are offered and sold directly by the Company. Ownership of beneficial
interests in a Global Security will be limited to persons that may hold
interests through participants. Ownership of beneficial interests in such Global
Security will be shown on, and the transfer of that ownership will be effected
only through, records maintained by the Depositary or its nominee (with respect
to interests of participants) for such Global Security and on the records of
participants (with respect to interests of persons other than participants). The
laws of some states require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture governing such Debt Securities. Except as provided below, owners of
beneficial interests in a Global Security will not be entitled to have Debt
Securities of the series represented by such Global Security registered in their
names, will not receive or be entitled to receive physical delivery of Debt
Securities of such series in definitive form and will not be considered the
owners or holders thereof under the Indenture governing Debt Securities.
Principal of, premium, if any, and interest payments on Debt Securities
registered in the name of a Depositary or its nominee will be made to the
Depositary or its nominee, as the case may be, as the registered owner of the
Global Security representing such Debt Securities. Neither the Company, the
Trustee for such Debt Securities, any Paying Agent nor the Security Registrar
for such Debt Securities will have any responsibility or liability for any
aspect of the records relating to or payments made on account of beneficial
ownership interests of the Global Security for such Debt Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company expects that the Depositary for a series of Debt Securities or
its nominee, upon receipt of any payment of principal of, premium, if any, or
interest thereon, will credit immediately participants' accounts with payments
in amounts proportionate to their respective beneficial interest in the
principal amount of the Global Security for such Debt Securities as shown on the
records of such Depositary or its nominee. The Company also expects that
payments by participants to owners of beneficial interests in such Global
Security held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers registered in "street name," and will be the
responsibility of such participants.
If a Depositary for a series of Debt Securities is at any time unwilling or
unable to continue as depositary and a successor depositary is not appointed by
the Company within 90 days, the Company will issue Debt Securities of such
series in definitive form in exchange for the Global Security representing such
series of Debt Securities. Further, if the Company so specifies with respect to
the Debt Securities of a series, an owner of a beneficial interest in a Global
Security representing Debt Securities of such series may, on terms acceptable to
the Company and the Depositary for such Global Security, receive Debt Securities
of such series in definitive
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form. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery in definitive form of Debt
Securities of the series represented by such Global Security equal in principal
amount to such beneficial interest and to have such Debt Securities registered
in its name. Debt Securities of such series so issued in definitive form will be
issued in denominations, unless otherwise specified by the Company, of U.S.
$1,000 and integral multiples thereof.
COVENANTS APPLICABLE TO SENIOR DEBT SECURITIES
Certain Definitions
The following terms are defined substantially as follows in Section 1.01 of
the Senior Indenture and are used herein as so defined.
The term "Consolidated Current Liabilities" means the aggregate of the
current liabilities of the Company and its Restricted Subsidiaries (excluding
liabilities of Unrestricted Subsidiaries and excluding billings on uncompleted
contracts in excess of related costs and profits) appearing on the most recent
available consolidated balance sheet of the Company and its Restricted
Subsidiaries, all in accordance with generally accepted accounting principles.
In no event shall Consolidated Current Liabilities include any obligation of the
Company and its Restricted Subsidiaries issued under a revolving credit or
similar agreement if the obligation issued under such agreement matures by its
terms within 12 months from the date thereof but by the terms of such agreement
such obligation may be renewed or extended or the amount thereof reborrowed or
refunded at the option of the Company or any Restricted Subsidiary for a term in
excess of 12 months from the date of determination.
The term "Consolidated Net Tangible Assets" means Consolidated Tangible
Assets after deduction of Consolidated Current Liabilities.
The term "Consolidated Tangible Assets" means the aggregate of all assets
of the Company and its Restricted Subsidiaries (including the value of all
existing Sale and Leaseback Transactions (as defined) and any assets resulting
from the capitalization of other long-term lease obligations in accordance with
generally accepted accounting principles, but excluding the value of assets of
or investments in any Unrestricted Subsidiary or any non-majority owned
Subsidiary) appearing on the most recent available consolidated balance sheet of
the Company and its Restricted Subsidiaries at their net book values, after
deducting related depreciation, amortization and other valuation reserves and
excluding (a) any capital write-ups resulting from reappraisals of assets or of
other investments after December 31, 1994 (other than a write-up of any assets
constituting part of the assets and business of another corporation made in
connection with the acquisition, direct or indirect, of the assets and business
of such other corporation) except as permitted in accordance with generally
accepted accounting principles, (b) treasury stock, (c) patent and trademark
rights, goodwill, unamortized discounts and expenses and any other intangible
items, all prepared in accordance with generally accepted accounting principles.
The term "Funded Debt" means all indebtedness for money borrowed having a
maturity of more than twelve months from the date of the most recent
consolidated balance sheet of the Company and its Restricted Subsidiaries
(excluding indebtedness of Unrestricted Subsidiaries) or renewable and
extendable beyond twelve months at the option of the borrower and all
obligations in respect of lease rentals which under generally accepted
accounting principles would be shown on the consolidated balance sheet of the
Company as a liability item other than a current liability; provided, however,
that Funded Debt shall not include any of the foregoing to the extent that such
indebtedness or obligations are not required by generally accepted accounting
principles to be shown on the balance sheet of the Company.
The term "Principal Property" means any manufacturing plant, warehouse,
office building or parcel of real property (including fixtures but excluding
leases and other contract rights which might otherwise be deemed real property)
owned by the Company or any Restricted Subsidiary, whether owned on the date of
the Senior Indenture or thereafter, provided each such plant, warehouse, office
building or parcel of real property has a gross book value (without deduction
for any depreciation reserves) at the date as of which the determination is
being made of in excess of two percent of the Consolidated Net Tangible Assets
of the
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Company and the Restricted Subsidiaries, other than any such plant, warehouse,
office building or parcel of real property or portion thereof which, in the
opinion of the Board of Directors of the Company (evidenced by a certified Board
Resolution delivered to the Trustee), is not of material importance to the
business conducted by the Company and its Restricted Subsidiaries taken as a
whole.
The term "Restricted Subsidiary" means (a) any Subsidiary other than an
Unrestricted Subsidiary and (b) any Subsidiary which is an Unrestricted
Subsidiary but which, subsequent to December 31, 1994, is designated by the
Company (by Board Resolution) to be a Restricted Subsidiary; provided, however,
that the Company may not designate any such Subsidiary to be a Restricted
Subsidiary if the Company would thereby breach any covenant or agreement
contained in the Senior Indenture (on the assumption that any Secured Debt of
such Subsidiary was incurred at the time of such designation and that any Sale
and Leaseback Transaction (as defined) to which such Subsidiary is then a party
was entered into at the time of such designation).
The term "Secured Debt" means indebtedness for borrowed money and any
Funded Debt which is secured by a Security Interest in (a) any Principal
Property or (b) any shares of capital stock or indebtedness of any Restricted
Subsidiary.
The term "Subsidiary" means any corporation of which the Company, or the
Company and one or more Subsidiaries, or any one or more Subsidiaries, directly
or indirectly own more than 50% of the Voting Stock (as defined).
The term "Unrestricted Subsidiary" means (a) any Subsidiary acquired or
organized after March 31, 1989; provided, however, that such Subsidiary shall
not be a successor, directly or indirectly, to any Restricted Subsidiary; (b)
any Subsidiary whose principal business or assets are located outside the United
States of America, its territories and possessions, Puerto Rico or Canada; (c)
any Subsidiary the principal business of which consists of financing or
assisting in financing of customer construction projects or the acquisition or
disposition of products of dealers, distributors or other customers; (d) any
Subsidiary engaged in the insurance business or whose principal business is the
ownership, leasing, purchasing, selling or development of real property; and (e)
any Subsidiary substantially all the assets of which consist of stock or other
securities of a Subsidiary or Subsidiaries referred to above in this sentence,
unless and until any such Subsidiary is designated to be a Restricted
Subsidiary, as referred to above.
Limitation on Secured Debt
The Company will not, and will not permit any Restricted Subsidiary to,
create, assume, or guarantee any Secured Debt without making effective provision
for securing the Senior Debt Securities equally and ratably with such Secured
Debt (Section 5.05). This covenant does not apply to debt secured by (i) certain
purchase money mortgages created to secure payment for the acquisition or
construction of any property including, but not limited to, any indebtedness
incurred by the Company or a Restricted Subsidiary prior to, at the time of, or
within 180 days after the later of the acquisition, the completion of
construction (including any improvements on an existing property) or the
commencement of commercial operation of such property, which indebtedness is
incurred for the purpose of financing all or any part of the purchase price of
such property or construction or improvements on such property, (ii) mortgages,
pledges, liens, security interest or encumbrances (collectively referred to
herein as "security interests") on property, or any conditional sales agreement
or any title retention with respect to property, existing at the time of
acquisition thereof, whether or not assumed by the Company or a Restricted
Subsidiary, (iii) security interests on property or shares of capital stock or
indebtedness of any corporation or firm existing at the time such corporation or
firm becomes a Restricted Subsidiary, (iv) security interests in property or
shares of capital stock or indebtedness of a corporation existing at the time
such corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at 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, provided that no such
security interests shall extend to any other Principal Property of the Company
or such Restricted Subsidiary prior to such acquisition or to other Principal
Property thereafter acquired other than additions to such acquired property, (v)
security interests on property of the Company or a Restricted Subsidiary in
favor of the United States of America or
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any state thereof, or in favor of any other country, or any department, agency,
instrumentality or political subdivision thereof (including, without limitation,
security interests to secure indebtedness of the pollution control or industrial
revenue type) in order to permit the Company or any Restricted Subsidiary to
perform a contract or to secure indebtedness incurred for the purpose of
financing all or any part of the purchase price for the cost of constructing or
improving the property subject to such security interests or which is required
by law or regulation as a condition to the transaction of any business or the
exercise of any privilege, franchise or license, (vi) security interests on any
property or assets of any Restricted Subsidiary to secure indebtedness owing by
it to the Company or to another Restricted Subsidiary, (vii) any mechanics',
materialmen's, carriers' or other similar lien arising in the ordinary course of
business (including construction of facilities) in respect of obligations which
are not yet due or which are being contested in good faith, (viii) any security
interest for taxes, assessments or government charges or levies not yet
delinquent, or already delinquent, but the validity of which is being contested
in good faith, (ix) any security interest arising in connection with legal
proceedings being contested in good faith, including any judgment lien so long
as execution thereof is being stayed, (x) landlords' liens on fixtures located
on premises leased by the Company or a Restricted Subsidiary in the ordinary
course of business, or (xi) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any security
interest referred to in the foregoing clauses (i) to (x) inclusive. (Section
5.05)
Limitation on Sale and Leaseback Transactions
Sale and Leaseback Transactions (which are defined to include, among other
things, certain leases of more than three years) by the Company or any
Restricted Subsidiary of any Principal Property, completion of construction of
which and commencement of full operation of which have occurred more than 180
days prior to such sale or transfer, will be prohibited unless either (a) the
Company or such Restricted Subsidiary would be entitled to incur Secured Debt
equal in amount to the amount realized or to be realized upon such sale or
transfer secured by a lien on the Principal Property to be leased without
equally and ratably securing the Senior Debt Securities, or (b) an amount equal
to the value (as defined) of the Principal Property so leased is applied
(subject to credits for certain voluntary retirements of the Senior Debt
Securities) to the retirement, within 120 days of the effective date of such
arrangement, of indebtedness for borrowed money incurred or assumed by the
Company or a Restricted Subsidiary which is recorded as Funded Debt (defined to
include the Debt Securities and other long-term indebtedness of the Company or
any Restricted Subsidiary) as shown on the most recent consolidated balance
sheet of the Company and which in the case of such indebtedness of the Company,
is not subordinate and junior in right of payment to the prior payment of the
Senior Debt Securities. (Section 5.06)
Exempted Indebtedness
Notwithstanding the limitations on Secured Debt and Sale and Leaseback
Transactions described above, the Company and any one or more Restricted
Subsidiaries may, without securing the Senior Debt Securities, issue, assume, or
guarantee Secured Debt which would otherwise be subject to the foregoing
restrictions, provided that, after giving effect thereto, the aggregate amount
of such Secured Debt then outstanding (not including Secured Debt permitted
under the foregoing exceptions) and the aggregate value of Sale and Leaseback
Transactions (other than Sale and Leaseback Transactions in connection with
which indebtedness has been, or will be, retired in accordance with clause (b)
of the preceding paragraph) at such time does not exceed 10% of Consolidated Net
Tangible Assets. (Section 5.05(b))
Restrictions on Transfer of Principal Property to Certain Subsidiaries
The Senior Indenture provides that, so long as the Senior Debt Securities
of any series are outstanding, the Company will not, and will not cause or
permit any Restricted Subsidiary to, transfer any Principal Property to any
Subsidiary which was not a Restricted Subsidiary at the time of such transfer
unless it shall apply within one year after the effective date of such
transaction, or shall have committed within one year of such effective date to
apply, an amount equal to the fair value of such Principal Property at the time
of such transfer (as determined by the Board of Directors of the Company) (i) to
the acquisition, construction,
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development or improvement of properties, facilities or equipment which are, or
upon such acquisition, construction, development or improvement will be, a
Principal Property or Properties or a part thereof or (ii) to the redemption of
Senior Debt Securities or (iii) to the repayment of Funded Debt of the Company
or any Restricted Subsidiary (other than Funded Debt owed to any Restricted
Subsidiary), or in part to such acquisition, construction, development or
improvement and in part to such redemption and/or repayment. In lieu of applying
all or any part of such amount to such redemption, the Company may, within one
year of such transfer, deliver to the Trustee under the Senior Indenture Senior
Debt Securities of any series (other than Senior Debt Securities made the basis
of a reduction in a mandatory sinking fund payment) for cancellation and thereby
reduce the amount to be applied to the redemption of Senior Debt Securities by
an amount equivalent to the aggregate principal amount of the Senior Debt
Securities so delivered. (Section 5.07)
MERGER
Each Indenture provides that the Company may, without the consent of the
Holders, consolidate with, or sell, lease or convey all or substantially all of
its assets to, or merge into any other corporation, provided that in any such
case, (i) the successor corporation shall be a corporation organized and
existing under the laws of the United States or a State thereof and such
corporation shall expressly assume the due and punctual payment of the principal
of (and premium, if any) and interest on all the applicable Debt Securities,
according to their tenor, and the due and punctual performance and observance of
all the covenants and conditions of the applicable Indenture to be performed by
the Company by supplemental indenture satisfactory to the applicable Trustee,
executed and delivered to the applicable Trustee by such corporation; and (ii)
immediately after giving effect to such transaction, no Default shall have
occurred and be continuing. (Article Twelve)
Other than the covenants described above, or as set forth in any
accompanying Prospectus Supplement, neither Indenture contains any covenants or
other provisions designed to afford holders of the Debt Securities protection in
the event of a takeover, recapitalization or a highly leveraged transaction
involving the Company.
MODIFICATION OF THE INDENTURES
With the consent of the holders ("Holders") of more than 50% in aggregate
principal amount of any series of Debt Securities then outstanding under the
applicable Indenture, waivers, modifications and alterations of the terms of
either Indenture may be made which affect the rights of the Holders of such
series of Debt Securities, except that no such modification or alteration may be
made which will (a) extend the time or terms of payment of the principal at
maturity of, or the interest on, any such series of Debt Securities, or reduce
principal or premium or the rate of interest, without the consent of the Holder
thereof, or (b) without the consent of all of the Holders of any series of Debt
Securities then outstanding, reduce the percentage of Debt Securities of any
such series, the Holders of which are required to consent (i) to any such
supplemental indenture, (ii) to rescind and annul a declaration that the Debt
Securities of any series are due and payable as a result of the occurrence of an
Event of Default, (iii) to waive any past Event of Default under the applicable
Indenture and its consequences, and (iv) to waive compliance with certain other
provisions contained in the applicable Indenture. (Sections 5.09, 11.01 and
11.02) In addition, as indicated under "Events of Default" below, Holders of
more than 50% in aggregate principal amount of the Debt Securities of any series
then outstanding may waive past Events of Default in certain circumstances and
may direct the Trustee in enforcement of remedies. (Section 7.07) The Company
and the Trustee may, without the consent of any Holders, modify and supplement
the applicable Indenture (i) to evidence the succession of another corporation
to the Company under the applicable Indenture; (ii) to evidence and provide for
the replacement of the Trustee; (iii) with the Company's concurrence, to add to
the covenants of the Company for the benefit of the Holders; (iv) to modify the
applicable Indenture to permit the qualification of any supplemental indenture
under the Trust Indenture Act of 1939; and (v) for certain other purposes.
(Section 11.01)
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DEFEASANCE, SATISFACTION AND DISCHARGE TO MATURITY OR REDEMPTION
Defeasance of any Series
If the Company shall deposit with the Trustee, in trust, at or before
maturity or redemption, lawful money or direct obligations of the United States
(or of any other government which issued the currency in which the Debt
Securities of a series are denominated) or obligations the principal of and
interest on which are guaranteed by the United States (or by such other
government) in such amounts and maturing at such times that the proceeds of such
obligations to be received upon the respective maturities and interest payment
dates of such obligations will provide funds sufficient, in the opinion of a
nationally-recognized firm of independent public accountants, to pay when due
the principal (and premium, if any) and interest to maturity or to the
redemption date, as the case may be, with respect to any series of Debt
Securities then outstanding, then the Company may cease to comply with the terms
of the applicable Indenture, including the restrictive covenants described under
"Limitation on Secured Debt," "Limitation on Sale and Leaseback Transactions"
and "Restrictions on Transfer of Principal Property to Certain Subsidiaries"
above and the Events of Default described in clauses (d) and (e) under "Events
of Default" below, except for (i) the Company's obligation to duly and
punctually pay the principal of (and premium, if any) and interest on such
series of Debt Securities if the Debt Securities are not paid from the money or
securities held by the Trustee, and (ii) the Events of Default described in
clauses (a), (b), (c), (f) and (g) under "Events of Default" below, and (iii)
certain other provisions of the applicable Indenture including, among others,
those relating to registration, transfer and exchange, lost or stolen
securities, maintenance of place of payment and, to the extent applicable to
such series, the redemption and sinking fund provisions of the applicable
Indenture. Defeasance of Debt Securities of any series is subject to the
satisfaction of certain specified conditions, including, among others, (i) the
absence of an Event of Default at the date of the deposit, and (ii) the
perfection of the Holders' security interest in such deposit. (Section 13.02)
Satisfaction and Discharge of any Series
Upon the deposit of money or securities contemplated above and the
satisfaction of certain conditions, the Company may also cease to comply with
its obligation duly and punctually to pay the principal of (and premium, if any)
and interest on a particular series of Debt Securities, or with any Events of
Default with respect thereto, and thereafter the Holders of such series of Debt
Securities shall be entitled only to payment out of the money or securities
deposited with the Trustee. Such conditions include, among others, except in
certain limited circumstances involving a deposit made within one year of
maturity or redemption, (i) the absence of an Event of Default at the date of
deposit or on the 91st day thereafter, (ii) the delivery to the Trustee by the
Company of an opinion of nationally-recognized tax counsel, or receipt by the
Company from, or publication of a ruling by the United States Internal Revenue
Service, to the effect that Holders of the Debt Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit and discharge and will be subject to Federal income tax on the
same amounts and in the same manner and at the same times as would have been the
case if such deposit and discharge had not occurred, and (iii) that such
satisfaction and discharge will not result in the delisting of the Debt
Securities of that series from any nationally-recognized exchange on which they
are listed. (Section 13.01)
Federal Income Tax Consequences
Under current Federal income tax law, the deposit and defeasance described
above under "Defeasance of any Series" will not result in a taxable event to any
Holder of Debt Securities or otherwise affect the Federal income tax
consequences of an investment in the Debt Securities of any series.
The Federal income tax treatment of the deposit and discharge described
above under "Satisfaction and Discharge of any Series" is not clear. A deposit
and discharge may be treated as a taxable exchange of such Debt Securities for
beneficial interests in the trust consisting of the deposited money or
securities. In that event, a Holder of Debt Securities may be required to
recognize gain or loss equal to the difference between the Holder's adjusted
basis for the Debt Securities and the amount realized in such exchange (which
generally will be the fair market value of the Holder's beneficial interest in
such trust). Thereafter, such Holder may be
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required to include in income a share of the income, gain and loss of the trust.
As described above, it is generally a condition to such a deposit and discharge
to obtain an opinion of tax counsel, or receipt by the Company from, or
publication of a ruling by the United States Internal Revenue Service, to the
effect that such deposit and discharge will not alter the Holders' tax
consequences that would have been applicable in the absence of the deposit and
discharge. Purchasers of the Debt Securities should consult their own advisors
with respect to the tax consequences to them of such deposit and discharge,
including the applicability and effect of tax laws other than Federal income tax
law.
EVENTS OF DEFAULT
As to any series of Debt Securities, an Event of Default is defined in the
Indentures as being: (a) default for 30 days in payment of any interest on the
Debt Securities of such series; (b) failure to pay principal or premium with
respect to the Debt Securities of such series, if any, when due; (c) failure in
the deposit of any sinking fund installment with respect to any series of Debt
Securities when due; (d) failure to observe or perform any other covenant in the
applicable Indenture or Debt Securities of any series (other than a covenant or
warranty, a default in whose performance or whose breach is specifically dealt
with in the section of the applicable Indenture governing Events of Default), if
such failure continues for 75 days after written notice by the Trustee or the
Holders of at least 25% in aggregate principal amount of the Debt Securities of
such series then outstanding; (e) uncured or unwaived failure to pay principal
of or interest on any other obligation for borrowed money of the Company
(including default under any other series of Debt Securities and including
default by the Company on any guaranty of an obligation for borrowed money of a
Restricted Subsidiary) beyond any period of grace with respect thereto if (i)
the aggregate principal amount of any such obligation is in excess of
$50,000,000 and (ii) the default in such payment is not being contested by the
Company in good faith and by appropriate proceedings; (f) certain events of
bankruptcy, insolvency, receivership or reorganization; or (g) any other Event
of Default provided with respect to Debt Securities of that series. (Section
7.01) The Trustee or the Holders of 25% in aggregate principal amount of the
outstanding Debt Securities of any series may declare the Debt Securities of
such series immediately due and payable upon the occurrence of any Event of
Default (after expiration of any applicable grace period); in certain cases, the
Holders of a majority in principal amount of the Debt Securities of any series
then outstanding may waive any past default and its consequences, except a
default in the payment of principal, premium, if any, or interest (including
sinking fund payments). (Sections 7.01 and 7.07)
Each Indenture provides that the Trustee shall, within 90 days after the
occurrence of a default with respect to any such series for which there are Debt
Securities outstanding which is continuing, give to the Holders of such Debt
Securities notice of all uncured defaults known to it (the term default to
include the events specified above without grace periods); provided that, except
in the case of default in the payment of principal (or premium, if any) or
interest on any of the Debt Securities of any series or the payment of any
sinking fund installment on the Debt Securities of any series, the Trustee shall
be protected in withholding such notice if it in good faith determines that the
withholding notice is in the interest of the Debt Security Holders. (Section
7.08)
Subject to the provisions of the applicable Indenture relating to the
duties of the Trustee in case an Event of Default with respect to any series of
such Debt Securities shall occur and be continuing, the applicable Indenture
provides that the Trustee shall be under no obligation to exercise any of its
rights or powers under the applicable Indenture at the request, order or
direction of any of the Holders of Debt Securities outstanding of any series
unless such Holders shall have offered to the Trustee reasonable indemnity.
(Sections 8.01 and 8.02) The right of a Holder to institute a proceeding with
respect to the applicable Indenture is subject to certain conditions precedent
including notice and indemnity to the Trustee, but the Holder has a right to
receipt of principal, premium, if any, and interest (subject to certain
limitations with respect to defaulted interest) on their due dates or to
institute suit for the enforcement thereof. (Sections 7.04 and 7.10)
So long as the Debt Securities of any series remain outstanding the Company
will be required to furnish annually to the Trustee an Officers' Certificate
stating whether, to the best of the knowledge of the signers, the Company is in
default under any of the provisions of the applicable Indenture, and specifying
all such defaults,
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and the nature thereof, of which they have knowledge. (Section 5.08) The Company
will also be required to furnish to the Trustee copies of certain reports filed
by the Company with the Commission. (Section 6.03)
The Holders of a majority in principal amount of the Debt Securities
outstanding of such series will have the right to direct the time, method and
place for conducting any proceeding for any remedy available to the Trustee, or
exercising any power or trust conferred on the Trustee, provided that such
direction shall be in accordance with law and the provisions of the applicable
Indenture, provided that the Trustee may decline to follow any such direction if
the Trustee shall determine on the advice of counsel that the proceeding may not
be lawfully taken or would be materially or unjustly prejudicial to Holders not
joining in such direction. (Section 7.07) The Trustee will be under no
obligation to act in accordance with such direction unless such Holders shall
have offered the Trustee reasonable security or indemnity against costs,
expenses and liabilities which may be incurred thereby. (Section 8.02)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The Senior Debt Securities will constitute part of the Senior Indebtedness
(as defined below) of the Company and will rank pari passu with all outstanding
senior debt. Except as set forth in the related Prospectus Supplement, the
Subordinated Debt Securities will be subordinated, in right of payment, to the
prior payment in full of the Senior Indebtedness, including the Senior Debt
Securities, whether outstanding at the date of the Subordinated Indenture or
thereafter incurred, assumed or guaranteed. The term "Senior Indebtedness" means
(1) the principal of and premium, if any, and unpaid interest on indebtedness
for money borrowed, (2) purchase money and similar obligations, (3) obligations
under capital leases, (4) guarantees, assumptions or purchase commitments
relating to, or other transactions as a result of which the Company is
responsible for the payment of, such indebtedness of others, (5) renewals,
extensions and refunding of any such indebtedness, (6) interest or obligations
in respect of any such indebtedness accruing after the commencement of any
insolvency or bankruptcy proceedings and (7) obligations associated with
derivative products such as interest rate and currency exchange contracts,
foreign exchange contracts, commodity contracts, and similar arrangements,
unless, in each case, the instrument by which the Company incurred, assumed or
guaranteed the indebtedness or obligations described in clauses (1) through (7)
hereof expressly provides that such indebtedness or obligation is not senior in
right of payment to the Subordinated Debt Securities.
Upon any distribution of assets of the Company in connection with any
dissolution, winding up, liquidation or reorganization of the Company, whether
in a bankruptcy, insolvency, reorganization or receivership proceeding or upon
an assignment for the benefit of creditors or any other marshalling of the
assets and liabilities of the Company or otherwise, except a distribution in
connection with a merger or consolidation or a conveyance or transfer of all or
substantially all of the properties of the Company in accordance with the
Subordinated Indenture, the holders of all Senior Indebtedness shall first be
entitled to receive payment of the full amount due thereon, or provision shall
be made for such payment in money or money's worth, before the holders of any of
the Subordinated Debt Securities are entitled to receive any payment in respect
of the Subordinated Debt Securities. In the event that a payment default shall
have occurred and be continuing with respect to the Senior Indebtedness, the
holders of all Senior Indebtedness shall first be entitled to receive payment of
the full amount due thereon, or provision shall be made for such payment in
money or money's worth, before the holders of any of the Subordinated Debt
Securities are entitled to receive any payment in respect of the Subordinated
Debt Securities. In the event that the principal of the Subordinated Debt
Securities of any series shall have been declared due and payable pursuant to
the Subordinated Indenture and such declaration shall not have been rescinded
and annulled, the holders of all Senior Indebtedness outstanding at the time of
such declaration shall first be entitled to receive payment of the full amount
due thereon, or provision shall be made for such payment in money or money's
worth, before the holders of any of the Subordinated Debt Securities are
entitled to receive any payment in respect of the Subordinated Debt Securities.
This subordination will not prevent the occurrence of any event of default
with respect to the Subordinated Debt Securities. There is no limitation on the
issuance of additional Senior Indebtedness in the Subordinated Indenture.
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INFORMATION CONCERNING THE TRUSTEE
The Company from time to time borrows from an affiliate of the Trustee, and
maintains deposit accounts and conducts other banking transactions with such
affiliate in the ordinary course of business.
Under each Indenture, the Trustee is required to transmit annual reports to
all Holders regarding its eligibility and qualifications as Trustee under the
applicable Indenture and certain related matters. (Section 7.06)
DESCRIPTION OF THE WARRANTS TO PURCHASE
COMMON STOCK OR PREFERRED STOCK
The following statements with respect to the Common Stock Warrants and
Preferred Stock Warrants (collectively, the "Stock Warrants") are summaries of,
and subject to, the detailed provisions of a warrant agreement ("Stock Warrant
Agreement") to be entered into by the Company and a warrant agent to be selected
at the time of issue (the "Stock Warrant Agent"), which Stock Warrant Agreement
may include or incorporate by reference standard warrant provisions
substantially in the form of the Standard Stock Warrant Provisions (the "Stock
Warrant Provisions") filed as an exhibit to the Registration Statement.
GENERAL
The Stock Warrants, evidenced by warrant certificates (the "Stock Warrant
Certificates"), may be issued under the Stock Warrant Agreement independently or
together with any Offered Securities offered by any Prospectus Supplement and
may be attached to or separate from such Offered Securities. If Stock Warrants
are offered, the related Prospectus Supplement will describe the designation and
terms of the Stock Warrants, including without limitation the following: (i) the
offering price, if any; (ii) the designation and terms of the Common Stock or
Preferred Stock purchasable upon exercise of the Stock Warrants; (iii) if
applicable, the date on and after which the Stock Warrants and the related
Offered Securities will be separately transferable; (iv) the number of shares of
Common Stock or Preferred Stock purchasable upon exercise of one Stock Warrant
and the initial price at which such shares may be purchased upon exercise; (v)
the date on which the right to exercise the Stock Warrants shall commence and
the date on which such right shall expire; (vi) a discussion of certain Federal
income tax considerations; (vii) the call provisions, if any; (viii) the
currency, currencies or currency units in which the offering price, if any, and
exercise price are payable; (ix) the antidilution provisions of the Stock
Warrants; and (x) any other terms of the Stock Warrants. The shares of Common
Stock or Preferred Stock issuable upon exercise of the Stock Warrants will, when
issued in accordance with the Stock Warrant Agreement, be fully paid and
nonassessable, except as provided by Section 180.0622(2)(b) of the WBCL
regarding personal liability of shareholders for all debts owing to employees of
the Company for services performed but not exceeding six months' service in any
one case.
EXERCISE OF STOCK WARRANTS
Stock Warrants may be exercised by surrendering to the Stock Warrant Agent
the Stock Warrant certificate with the form of election to purchase on the
reverse thereof duly completed and signed by the warrantholder, or its duly
authorized agent (such signature to be guaranteed by a bank or trust company, by
a broker or dealer which is a member of the National Association of Securities
Dealers, Inc. or by a member of a national securities exchange), indicating the
warrantholder's election to exercise all or a portion of the Stock Warrants
evidenced by the certificate. Surrendered Stock Warrant certificates shall be
accompanied by payment of the aggregate exercise price of the Stock Warrants to
be exercised, as set forth in the related Prospectus Supplement, in lawful money
of the United States, unless otherwise provided in the related Prospectus
Supplement. Upon receipt thereof by the Stock Warrant Agent, the Stock Warrant
Agent will requisition from the transfer agent for the Common Stock or the
Preferred Stock, as the case may be, for issuance and delivery to or upon the
written order of the exercising warrantholder, a certificate representing the
number of shares of Common Stock or Preferred Stock purchased. If less than all
of the Stock Warrants
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evidenced by any Stock Warrant Certificate are exercised, the Stock Warrant
Agent shall deliver to the exercising warrantholder a new Stock Warrant
Certificate representing the unexercised Stock Warrants.
ANTIDILUTION AND OTHER PROVISIONS
The exercise price payable and the number of shares of Common Stock or
Preferred Stock purchasable upon the exercise of each Stock Warrant and the
number of Stock Warrants outstanding will be subject to adjustment in certain
events, including the issuance of a stock dividend to holders of Common Stock or
Preferred Stock, respectively, or a combination, subdivision or reclassification
of Common Stock or Preferred Stock, respectively. In lieu of adjusting the
number of shares of Common Stock or Preferred Stock purchasable upon exercise of
each Stock Warrant, the Company may elect to adjust the number of Stock
Warrants. No adjustment in the number of shares purchasable upon exercise of the
Stock Warrants will be required until cumulative adjustments require an
adjustment of at least 1% thereof. The Company may, at its option, reduce the
exercise price at any time. No fractional shares will be issued upon exercise of
Stock Warrants, but the Company will pay the cash value of any fractional shares
otherwise issuable. Notwithstanding the foregoing, in case of any consolidation,
merger, or sale or conveyance of the property of the Company as an entirety or
substantially as an entirety, the holder of each outstanding Stock Warrant shall
have the right to the kind and amount of shares of stock and other securities
and property (including cash) receivable by a holder of the number of shares of
Common Stock or Preferred Stock into which such Stock Warrants were exercisable
immediately prior thereto.
NO RIGHTS AS SHAREHOLDERS
Holders of Stock Warrants will not be entitled, by virtue of being such
holders, to vote, to consent, to receive dividends, to receive notice as
shareholders with respect to any meeting of shareholders for the election of
directors of the Company or any other matter, or to exercise any rights
whatsoever as shareholders of the Company.
DESCRIPTION OF THE WARRANTS TO PURCHASE DEBT SECURITIES
The following statements with respect to the Debt Warrants are summaries
of, and subject to, the detailed provisions of a warrant agreement (the "Debt
Warrant Agreement") to be entered into by the Company and a warrant agent to be
selected at the time of issue (the "Debt Warrant Agent"), which Debt Warrant
Agreement may include or incorporate by reference standard warrant provisions
substantially in the form of the Standard Debt Securities Warrant Provisions
(the "Debt Warrant Provisions") filed as an exhibit to the Registration
Statement.
GENERAL
The Debt Warrants, evidenced by warrant certificates (the "Debt Warrant
Certificates"), may be issued under the Debt Warrant Agreement independently or
together with any Offered Securities offered by any Prospectus Supplement and
may be attached to or separate from such Offered Securities. If Debt Warrants
are offered, the related Prospectus Supplement will describe the designation and
terms of the Debt Warrants, including without limitation the following: (i) the
offering price, if any; (ii) the designation, aggregate principal amount and
terms of the Debt Securities purchasable upon exercise of the Debt Warrants;
(iii) if applicable, the date on and after which the Debt Warrants and the
related Offered Securities will be separately transferable; (iv) the principal
amount of Debt Securities purchasable upon exercise of one Debt Warrant and the
price at which such principal amount of Debt Securities may be purchased upon
exercise; (v) the date on which the right to exercise the Debt Warrants shall
commence and the date on which such right shall expire; (vi) a discussion of
certain Federal income tax considerations; (vii) whether the warrants
represented by the Debt Warrant Certificates will be issued in registered or
bearer form; (viii) the currency, currencies or currency units in which the
offering price, if any, and exercise price are payable; (ix) the antidilution
provisions of the Debt Warrants; and (x) any other terms of the Debt Warrants.
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Warrantholders do not have any of the rights of holders of Debt Securities,
including the right to receive the payment of principal of, or interest on, the
Debt Securities or to enforce any of the covenants of the Debt Securities or the
applicable Indenture except as otherwise provided in the applicable Indenture.
EXERCISE OF DEBT WARRANTS
Debt Warrants may be exercised by surrendering the Debt Warrant Certificate
at the warrant agent office of the Debt Warrant Agent, with the form of election
to purchase on the reverse side of the Debt Warrant Certificate properly
completed and executed (with signature(s) guaranteed by a bank or trust company,
by a broker or dealer which is a member of the National Association of
Securities Dealers, Inc. or by a member of a national securities exchange), and
by payment in full of the exercise price, as set forth in the Prospectus
Supplement. Upon the exercise of Debt Warrants, the Company will issue the Debt
Securities in authorized denominations in accordance with the instructions of
the exercising warrantholder. If less than all of the Debt Warrants evidenced by
the Debt Warrant Certificate are exercised, a new Debt Warrant Certificate will
be issued for the remaining number of Debt Warrants.
PLAN OF DISTRIBUTION
The Company may sell Offered Securities (i) through underwriters or
dealers, (ii) directly to one or more purchasers, or (iii) through agents. A
Prospectus Supplement will set forth the terms of the offering of the Offered
Securities offered thereby, including the name or names of any underwriters, the
purchase price of the Offered Securities, and the proceeds to the Company from
the sale, any underwriting discounts and other items constituting underwriters'
compensation, any public offering price, any discounts or concessions allowed or
reallowed or paid to dealers, and any securities exchange or market on which the
Offered Securities may be listed. Only underwriters so named in such Prospectus
Supplement are deemed to be underwriters in connection with the Offered
Securities offered thereby.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The obligations of the underwriters to purchase the Offered Securities will be
subject to certain conditions precedent, and the underwriters will be obligated
to purchase all the Offered Securities of the series offered by the Prospectus
Supplement if any of the Offered Securities are purchased. Any public offering
price and any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
Offered Securities may also be sold directly by the Company or through
agents designated by the Company from time to time. Any agent involved in the
offering and sale of Offered Securities in respect of which this Prospectus is
delivered will be named, and any commissions payable by the Company to such
agent will be set forth, in the Prospectus Supplement. Unless otherwise
indicated in the related Prospectus Supplement, any such agent will be acting on
a best efforts basis for the period of its appointment.
All Offered Securities offered other than Common Stock will be a new issue
of securities with no established trading market. Any underwriters to whom such
Offered Securities are sold by the Company for public offering and sale may make
a market in such Offered Securities, but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of or the trading markets for any
such Offered Securities.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil liabilities,
including liabilities under the Securities Act that may arise from any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission to state a material fact in this Prospectus, any supplement or
amendment hereto, or in the Registration Statement of which this Prospectus
forms a part, or to contribution with respect to payments which the agents or
underwriters may be required to make in respect thereof. Agents and underwriters
may engage in transactions with, or perform services for, the Company in the
ordinary course of business.
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LEGAL OPINIONS
The legality of the Securities will be passed upon for the Company by John
P. Kennedy, Esq., Vice President, Secretary and General Counsel of the Company.
Certain legal matters will be passed upon for any underwriters or agents by
Mayer, Brown & Platt, Chicago, Illinois.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Company's Annual Report on Form 10-K for the year ended
September 30, 1995, have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent accountants, given on the authority of said firm as
experts in auditing and accounting.
The combined financial statements of Prince incorporated in this Prospectus
by reference to the Company's Current Report on Form 8-K dated October 4, 1996
have been audited by Ernst & Young LLP, independent certified public
accountants, as set forth in their report therein, are so incorporated in
reliance upon such report given upon the authority of such firm as experts in
auditing and accounting.
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<PAGE> 32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses in connection with
the issuance and distribution of the securities registered hereby, other than
underwriting discounts and commissions:
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee................ $456,677
Trustee's fees and expenses........................................ 5,000
Printing and engraving expenses.................................... 25,000
Rating agency fees................................................. 130,000
Accounting fees and expenses....................................... 10,000
Legal fees and expenses............................................ 9,000
Blue Sky fees and expenses......................................... 15,000
Miscellaneous...................................................... 49,323
--------
Total....................................................... $700,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Pursuant to the provisions of the Wisconsin Business Corporation Law,
directors and officers of the Registrant are entitled to mandatory
indemnification from the Registrant against certain liabilities and expenses (i)
to the extent such officers or directors are successful in the defense of a
proceeding and (ii) in proceedings in which the director or officer is not
successful in the defense thereof, unless (in the latter case only) it is
determined that the director or officer breached or failed to perform his or her
duties to the Registrant and such breach or failure constituted: (a) a willful
failure to deal fairly with the Registrant or its shareholders in connection
with a matter in which the director or officer had a material conflict of
interest; (b) a violation of the criminal law unless the director or officer had
reasonable cause to believe his or her conduct was lawful or had no reasonable
cause to believe his or her conduct was unlawful; (c) a transaction from which
the director or officer derived an improper personal benefit; or (d) willful
misconduct. The Wisconsin Business Corporation Law specifically states that it
is the public policy of Wisconsin to require or permit indemnification in
connection with a proceeding involving securities regulation, as described
therein, to the extent required or permitted as described above. In addition,
under the Wisconsin Business Corporation Law, directors of the Registrant are
not subject to personal liability to the Registrant, its shareholders or any
person asserting rights on behalf thereof for certain breaches or failures to
perform any duty resulting solely from their status as directors, except in
circumstances paralleling those outlined in (a) through (d) above.
Expenses for the defense of any action for which indemnification may be
available may be advanced by the Company under certain circumstances.
The indemnification provided by the Wisconsin Business Corporation Law is
not exclusive of any other rights to which a director or officer of the
Registrant may be entitled.
The Company has entered into indemnification agreements with its directors
and officers providing them with the indemnification permitted by Wisconsin law.
The Company has purchased insurance as permitted by Wisconsin law on behalf
of directors and officers, which may cover liabilities under the Securities Act
of 1933.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
See Exhibit Index included herewith which is incorporated herein by
reference.
II-1
<PAGE> 33
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(b) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The undersigned registrant hereby undertakes that:
(a) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the 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;
(b) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-2
<PAGE> 34
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the provisions set forth or described in Item 15 of this
Registration Statement, or otherwise, the registrant has been informed that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities 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 Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-3
<PAGE> 35
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 Milwaukee, State of Wisconsin on the 4th day of
October, 1996.
JOHNSON CONTROLS, INC.
By: /s/ JAMES H. KEYES
------------------------------------
James H. Keyes
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints James H. Keyes, Ben C.M. Bastianen, Stephen A.
Roell and John P. Kennedy and each of them, with full power to act without the
other, as his or her true and lawful attorney-in-fact and agent, with full power
of substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities (unless revoked in writing), to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
to such attorneys-in-fact and agents, and each of them, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in connection therewith, as fully to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 4th day of October, 1996.
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------------------ ----------------------------------------------
<S> <C>
/s/ JAMES H. KEYES Chairman of the Board and Chief Executive
- ------------------------------------------ Officer
James H. Keyes
/s/ ROBERT W. SMITH Assistant Corporate Controller
- ------------------------------------------ (Principal Accounting Officer)
Robert W. Smith
/s/ STEPHEN A. ROELL Vice President and Chief Financial Officer
- ------------------------------------------
Stephen A. Roell
/s/ WILLIAM F. ANDREWS Director
- ------------------------------------------
William F. Andrews
/s/ ROBERT L. BARNETT Director
- ------------------------------------------
Robert L. Barnett
/s/ FRED L. BRENGEL Director
- ------------------------------------------
Fred L. Brengel
</TABLE>
<PAGE> 36
SIGNATURE TITLE
- ------------------------------------------ ---------------------------------
/s/ PAUL A. BRUNNER Director
- ------------------------------------------
Paul A. Brunner
/s/ ROBERT A. CORNOG Director
- ------------------------------------------
Robert A. Cornog
/s/ WILLIE D. DAVIS Director
- ------------------------------------------
Willie D. Davis
/s/ SOUTHWOOD J. MORCOTT Director
- ------------------------------------------
Southwood J. Morcott
/s/ MARTHA R. SEGER Director
- ------------------------------------------
Martha R. Seger
/s/ DONALD TAYLOR Director
- ------------------------------------------
Donald Taylor
/s/ RICHARD F. TEERLINK Director
- ------------------------------------------
Richard F. Teerlink
/s/ GILBERT R. WHITAKER, JR. Director
- ------------------------------------------
Gilbert R. Whitaker, Jr.
/s/ R. DOUGLAS ZIEGLER Director
- ------------------------------------------
R. Douglas Ziegler
<PAGE> 37
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------ -------------------------------------------------------------------------------------
<C> <S>
4.1 Senior Indenture, dated as of February 22, 1995, between the Registrant and Chase
Manhattan Bank Delaware (formerly known as Chemical Bank Delaware) (incorporated by
reference to Exhibit 4.1 to the Registrant's Current Report on Form 8-K, dated March
16, 1995)
4.2 Form of First Supplemental Indenture between the Registrant and Chase Manhattan Bank
Delaware
4.3 Form of Subordinated Indenture between the Registrant and Chase Manhattan Bank
Delaware
4.4 Form of Standard Stock Warrant Provisions
4.5 Form of Standard Debt Warrant Provisions
5 Opinion of John P. Kennedy
23.1 Consent of John P. Kennedy (included in the opinion filed as Exhibit 5 to this
Registration Statement)
23.2 Consent of Price Waterhouse LLP
23.3 Consent of Ernst & Young LLP
24 Powers of Attorney (included on the signature page of this Registration Statement)
25.1 Statement of Eligibility of Chase Manhattan Bank Delaware on Form T-1
25.2 Statement of Eligibility of Chase Manhattan Bank Delaware on Form T-1
</TABLE>
<PAGE> 1
EXHIBIT 4.2
SUPPLEMENTAL INDENTURE
This SUPPLEMENTAL INDENTURE, dated as of _________________ ___, 1996, is
entered into between Johnson Controls, Inc., a Wisconsin corporation (the
"Company"), and Chase Manhattan Bank Delaware (formerly known as Chemical Bank
Delaware), a Delaware banking corporation, as trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee have entered into an indenture dated
as of February 22, 1995 (the "Indenture");
WHEREAS, Section 11.01(c) of the Indenture permits the Company and the
Trustee without the consent of the Holders of any Debt Securities Outstanding
to, among other things, enter into a supplemental indenture to make such
provisions in regard to matters or questions arising under the Indenture as
shall not adversely affect the interest of the Holders of the Debt Securities;
WHEREAS, the Company desires to amend the Indenture as provided in this
Supplemental Indenture;
WHEREAS, the Company's Board of Directors has authorized the execution and
delivery of this Supplemental Indenture;
WHEREAS, pursuant to Section 11.01 of the Indenture, the Company and the
Trustee are authorized to enter into this Supplemental Indenture;
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto hereby agree as follows:
. Amendment of the Indenture.
(a) Section 7.01(d) of the Indenture is amended by deleting the number
"60" and replacing it with the number "75".
(b) Section 7.01(e) of the Indenture is amended by deleting the amount of
"$25,000,000" and replacing it with the amount of "$50,000,000".
<PAGE> 2
Section 2. Effectiveness.
This Supplemental Indenture shall become effective as of the date hereof
and will be binding upon the Company, the Trustee and the Holders of any the
Debt Securities authenticated after the date of this Supplemental Indenture.
Section 3. Reference to and Effect on the Indenture.
(a) On and after the date of this Supplemental Indenture, each reference
in the Indenture to "this Indenture," "hereunder," "hereof," or "herein" shall
mean and be a reference to the Indenture as supplemented by this Supplemental
Indenture.
(b) Except as specifically amended above, the Indenture shall remain in
full force and effect and is hereby ratified and confirmed.
Section 4. Governing Law.
This Supplemental Indenture shall be construed and enforced in accordance
with the laws of the State of New York.
Section 5. Defined Terms.
Capitalized terms used herein and not defined shall have the respective
meanings given such terms in the Indenture.
Section 6. Counterparts and Method of Execution.
This Supplemental Indenture may be executed in several counterparts, all
of which together shall constitute one agreement binding on all parties hereto,
notwithstanding that all the parties have not signed the same counterpart.
Section 7. Titles.
Section titles are for descriptive purposes only and shall not control or
alter the meaning of this Supplemental Indenture as set forth in the text.
2
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be executed as of the day and year first above written.
JOHNSON CONTROLS, INC.
By:
------------------------------
Its:
CHASE MANHATTAN BANK DELAWARE
(formerly known as Chemical Bank
Delaware),
Trustee
By:
------------------------------
Its :
3
<PAGE> 1
EXHIBIT 4.3
================================================================================
JOHNSON CONTROLS, INC.
TO
CHASE MANHATTAN BANK DELAWARE,
TRUSTEE
------------
INDENTURE
Dated as of , 199
------------------ --
------------
SUBORDINATED DEBT SECURITIES
================================================================================
<PAGE> 2
TABLE OF CONTENTS*
Page
Parties 1
Recitals 1
ARTICLE ONE.
Definitions.
SECTION 1.01. Definitions 1
Affiliate 2
Authenticating Agent 2
Board of Directors 2
Board Resolution 2
Business Day 2
Company 2
Company Request and Company Order 3
Conversion Date 3
Currency Determination Agent 3
Current Market Price 3
Debt Security or Debt Securities 3
Debt Security Register 3
Depository 3
Dollar 4
Dollar Equivalent of the Foreign Currency 4
Event of Default 4
Foreign Currency 4
Global Debt Security 4
Government Obligations 4
Holder 5
Indenture 5
Indexed Debt Security 5
Interest 5
Interest Payment Date 5
Market Exchange Rate 5
Officers' Certificate 5
Opinion of Counsel 6
Original Issue Discount Debt Security 6
- ----------------------
* This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE> 3
Page
Outstanding 6
Person 7
Place of Payment 7
Predecessor Debt Security 7
Principal Office of the Trustee 8
Public Notice 8
Redemption Date 8
Redemption Price 8
Regular Record Date 8
Responsible Officer 8
Senior Indebtedness 9
Special Record Date 9
Stated Maturity 9
Subsidiary 9
Trustee 9
Trust Indenture Act of 1939 10
Valuation Date 10
Voting Stock 10
ARTICLE TWO.
Debt Security Forms.
SECTION 2.01. Forms Generally 10
SECTION 2.02. Forms of Debt Securities 11
SECTION 2.03. Form of Trustee's Certificate of Authentication 11
SECTION 2.04. Debt Securities in Global Form 12
ARTICLE THREE.
The Debt Securities.
SECTION 3.01. Title and Terms 14
SECTION 3.02. Denominations 16
SECTION 3.03. Payment of Principal and Interest 16
SECTION 3.04. Execution of Debt Securities 17
SECTION 3.05. Temporary Debt Securities 19
SECTION 3.06. Exchange and Registration of Transfer of Debt Securities 19
SECTION 3.07. Mutilated, Destroyed, Lost or Stolen Debt Securities 21
SECTION 3.08. Payment of Interest; Interest Rights Preserved 22
SECTION 3.09. Persons Deemed Owners 23
SECTION 3.10. Cancellation of Debt Securities Paid, etc 23
<PAGE> 4
Page
SECTION 3.11. Currency and Manner of Payments 24
ARTICLE FOUR.
Redemption of Debt Securities; Sinking Funds.
SECTION 4.01. Applicability of Article 26
SECTION 4.02. Notice of Redemption; Selection of Debt Securities 26
SECTION 4.03. Payment of Debt Securities Called for Redemption 27
SECTION 4.04. Exclusion of Certain Securities from Eligibility
for Selection for Redemption 28
SECTION 4.05. Provisions with Respect to any Sinking Funds 28
ARTICLE FIVE.
Particular Covenants of the Company
SECTION 5.01. Payment of Principal, Premium and Interest 30
SECTION 5.02. Offices for Notices and Payments, etc 30
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office 31
SECTION 5.04. Provisions as to Paying Agent 31
SECTION 5.05. Certificate to Trustee 32
SECTION 5.06. Waivers of Covenants 32
ARTICLE SIX.
Holders' Lists and Reports by the Company and the Trustee.
SECTION 6.01. Holders' Lists 32
SECTION 6.02. Preservation and Disclosure of Lists 33
SECTION 6.03. Reports by the Company 33
SECTION 6.04. Reports by the Trustee 33
ARTICLE SEVEN.
Remedies of the Trustee and Holders on Event of Default.
SECTION 7.01. Events of Default 34
SECTION 7.02. Payment of Debt Securities Upon Default; Suit Therefor 37
SECTION 7.03. Application of Moneys Collected by Trustee 39
SECTION 7.04. Proceedings by Holders 40
SECTION 7.05. Proceedings by Trustee 41
iii
<PAGE> 5
Page
SECTION 7.06. Remedies Cumulative and Continuing 41
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders 41
SECTION 7.08. Notice of Defaults 42
SECTION 7.09. Undertaking to Pay Costs 42
SECTION 7.10. Unconditional Right of Holders to Receive Principal,
Premium and Interest 42
ARTICLE EIGHT.
Concerning the Trustee.
SECTION 8.01. Duties and Responsibilities of Trustee 43
SECTION 8.02. Reliance on Documents, Opinions, etc 43
SECTION 8.03. No Responsibility for Recitals, etc 44
SECTION 8.04. Trustee and Agents May Own Debt Securities 45
SECTION 8.05. Moneys to be Held in Trust 45
SECTION 8.06. Compensation and Expenses of Trustee 45
SECTION 8.07. Officers' Certificate as Evidence 46
SECTION 8.08. Conflicting Interest of Trustee 46
SECTION 8.09. Eligibility of Trustee 46
SECTION 8.10. Resignation or Removal of Trustee 46
SECTION 8.11. Acceptance by Successor Trustee 48
SECTION 8.12. Succession by Merger, etc 49
SECTION 8.13. Limitation on Rights of Trustee as a Creditor 49
SECTION 8.14. Authenticating Agents 50
ARTICLE NINE.
Concerning the Holders.
SECTION 9.01. Action by Holders 53
SECTION 9.02. Proof of Execution by Holders 53
SECTION 9.03. Who Are Deemed Absolute Owners 53
SECTION 9.04. Company-Owned Debt Securities Disregarded 53
SECTION 9.05. Revocation of Consents; Future Holders Bound 54
ARTICLE TEN.
Holders' Meetings.
SECTION 10.01. Purposes of Meetings 55
iv
<PAGE> 6
Page
SECTION 10.02. Call of Meetings by Trustee 55
SECTION 10.03. Call of Meetings by Company or Holders 55
SECTION 10.04. Qualifications for Voting 56
SECTION 10.05. Regulations 56
SECTION 10.06. Voting 57
SECTION 10.07. No Delay of Rights by Meeting 57
ARTICLE ELEVEN.
Supplemental Indentures.
SECTION 11.01. Supplemental Indentures without Consent of Holders 58
SECTION 11.02. Supplemental Indentures with Consent of Holders 59
SECTION 11.03. Effect of Supplemental Indentures 60
SECTION 11.04. Notation on Debt Securities 61
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee 61
ARTICLE TWELVE.
Consolidation, Merger, Sale and Conveyance.
SECTION 12.01. Company May Consolidate, etc., on Certain Terms 61
SECTION 12.02. Successor Corporation to be Substituted 62
SECTION 12.03. Opinion of Counsel to Be Given Trustee 62
ARTICLE THIRTEEN.
Satisfaction and Discharge of Indenture.
SECTION 13.01. Satisfaction, Discharge and Defeasance of Debt Securities
of any Series 63
SECTION 13.02. Defeasance of Debt Securities of any Series 65
SECTION 13.03. Application of Trust Funds; Indemnification 66
SECTION 13.04. Return of Unclaimed Moneys 67
ARTICLE FOURTEEN.
Immunity of Incorporators, Stockholders, Officers and Directors.
SECTION 14.01. Indenture and Debt Securities Solely Corporate Obligations 67
v
<PAGE> 7
Page
ARTICLE FIFTEEN.
Miscellaneous Provisions.
SECTION 15.01. Provisions Binding on Successors of the Company 68
SECTION 15.02. Indenture for Sole Benefit of Parties and Holders of Debt
Securities. 68
SECTION 15.03. Addresses for Notices, etc. 68
SECTION 15.04. New York Contract 69
SECTION 15.05. Evidence of Compliance with Conditions Precedent 69
SECTION 15.06. Legal Holidays 69
SECTION 15.07. Trust Indenture Act of 1939 to Control 69
SECTION 15.08. Table of Contents, Headings, etc 70
SECTION 15.09. Determination of Principal Amount 70
SECTION 15.10. Execution in Counterparts 70
ARTICLE SIXTEEN.
Subordination of Debt Securities.
SECTION 16.01. Debt Securities Subordinated to Senior
Indebtedness 70
SECTION 16.02. Subrogation 72
SECTION 16.03. Obligation of the Company Unconditional 72
SECTION 16.04. Payments on Debt Securities Permitted 73
SECTION 16.05. Effectuation of Subordination by Trustee 73
SECTION 16.06. Knowledge of Trustee 73
SECTION 16.07. Trustee May Hold Senior Indebtedness 74
SECTION 16.08. Rights of Holders of Senior Indebtedness Not
Impaired 74
Signatures 75
Acknowledgements 75
vi
<PAGE> 8
CROSS REFERENCE SHEET
BETWEEN
Provisions of Sections 310 through 318(a) inclusive of Trust Indenture Act
of 1939 and the Indenture dated as of February 22, 1995 between Johnson
Controls, Inc. and Chase Manhattan Bank Delaware, as Trustee.
SECTION OF ACT SECTION OF INDENTURE
310(a)(1) and (2) ................................. 8.09
310(a)(3) and (4) ................................. *
310(b) ............................................ 8.08 and 8.10
310(c) ............................................ *
311(a) ............................................ 8.13(a)
311(b) ............................................ 8.13(b)
311(c) ............................................ *
312(a) ............................................ 6.01 and 6.02(a)
312(b) ............................................ 6.02(b)
312(c) ............................................ 6.02(c)
313(a)(1), (2), (3), (4), (6) and (7) ............. 6.04(a)(1-6)
313(a)(5) ......................................... *
313(b)(1) ......................................... *
313(b)(2) ......................................... 6.04(b)
313(c) ............................................ 6.04(c)
313(d) ............................................ 6.04(d)
314(a)(1) ......................................... 6.03(a)
314(a)(2) ......................................... 6.03(b)
314(a)(3) ......................................... 6.03(c)
314(b) ............................................ *
314(c)(1) ......................................... 15.05
314(c)(2) ......................................... 15.05
314(c)(3) ......................................... *
314(d) ............................................ *
314(e) ............................................ 15.05
314(f) ............................................ *
315(a), (c) and (d) ............................... 8.01
315(b) ............................................ 7.08
315(e) ............................................ 7.09
316(a)(1) ......................................... 7.07
316(a)(2) ......................................... *
316(a) last para................................... 9.04
316(b) ............................................ 7.10
317(a) ............................................ 7.02
317(b) ............................................ 5.04
318(a) ............................................ 15.07
______________________
* Not applicable.
** This cross reference sheet shall not, for any purpose, be deemed to be part
of the Indenture.
<PAGE> 9
THIS INDENTURE, dated as of , 199 , between Johnson
Controls, Inc., a Wisconsin corporation (the "Company"), and Chase Manhattan
Bank Delaware, a Delaware banking corporation, as trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issue from time to time of its unsecured
subordinated debentures, notes, bonds or other evidences of indebtedness to be
issued in one or more series as in this Indenture provided, up to such principal
amount or amounts as may from time to time be authorized in or pursuant to one
or more resolutions of the Board of Directors.
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 or
acceptance of the Debt Securities by the Holders thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of the respective
Holders from time to time of the Debt Securities or of any series thereof as
follows:
ARTICLE ONE.
DEFINITIONS.
SECTION 1.01. Definitions. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
of 1939 or which are by reference therein defined in the Securities Act of 1933,
as amended, shall have (except as herein otherwise expressly provided or unless
the context otherwise requires) the meanings assigned to such terms in said
Trust Indenture Act of 1939 and in said Securities Act as in force at the date
of the execution of this Indenture. 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. All
<PAGE> 10
references to such terms herein shall be both to the singular or the plural, as
the context so requires.
AFFILIATE:
The term "Affiliate", when used with respect to any specified Person,
means any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
AUTHENTICATING AGENT:
The term "Authenticating Agent" shall mean the agent of the Trustee,
if any, which at the time shall be appointed and acting pursuant to Section
8.14.
BOARD OF DIRECTORS:
The term "Board of Directors" shall mean the Board of Directors of the
Company or any authorized committee of such Board designated by the Board of
Directors or the by-laws or the articles of incorporation of the Company to act
for such Board for purposes of this Indenture.
BOARD RESOLUTION:
The term "Board Resolution" means a copy of a resolution certified by
a Vice President, 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:
The term "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 to close.
COMPANY:
The term "Company" shall mean Johnson Controls, Inc., a Wisconsin
corporation, and, subject to Article Twelve, shall include its successors and
assigns.
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COMPANY REQUEST AND COMPANY ORDER:
The terms "Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by its Chairman of
the Board, Vice Chairman of the Board, President or a Vice President, and by its
Treasurer, Secretary, Assistant Secretary or Assistant Treasurer, and delivered
to the Trustee.
CONVERSION DATE:
The term "Conversion Date" shall have the meaning set forth in Section
3.11:
CURRENCY DETERMINATION AGENT:
The term "Currency Determination Agent" shall mean the financial
institution, if any, from time to time selected by the Company and approved by
the Trustee for purposes of Section 3.11.
CURRENT MARKET PRICE:
The term "Current Market Price" means the closing price (or, if none,
the average of the last daily bid and asked prices) of the applicable class of
capital stock as quoted by the primary securities exchange on which the stock is
traded, or, if none, the primary inter-dealer quotation system, which reports
quotations for the class of capital stock, for the last trading day immediately
prior to the Calculation Date.
DEBT SECURITY OR DEBT SECURITIES:
The terms "Debt Security" or "Debt Securities" shall mean any
unsecured notes, debentures or other indebtedness of any series, as the case may
be, issued by the Company from time to time, and authenticated and delivered
under this Indenture.
DEBT SECURITY REGISTER:
The term "Debt Security Register" shall have the meaning set forth in
Section 3.06.
DEPOSITORY:
The term "Depository" shall mean, unless otherwise specified by the
Company pursuant to Section 3.01, with respect to Securities of any series
issuable or issued as a Global Security, The Depository Trust Company, New York,
New York, or any
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successor thereto registered as a clearing agency pursuant to the provisions of
Section 17A of the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation.
DOLLAR:
The term "Dollar" shall mean the coin or currency of the United States
of America which as of the time of payment is legal tender for the payment of
public and private debts.
DOLLAR EQUIVALENT OF THE FOREIGN CURRENCY:
The term "Dollar Equivalent of the Foreign Currency" shall have the
meaning set forth in Section 3.11.
EVENT OF DEFAULT:
The term "Event of Default" shall mean any event specified in Section
7.01, continued for the period of time, if any, and after the giving of the
notice, if any, therein designated.
FOREIGN CURRENCY:
The term "Foreign Currency" shall mean a currency issued by the
government of any country other than the United States of America.
GLOBAL DEBT SECURITY:
The term "Global Debt Security" means a Debt Security issued to
evidence all or part of a series of Debt Securities.
GOVERNMENT OBLIGATIONS:
The term "Government Obligations" means securities which are (i)
direct obligations of the government which issued the currency in which the Debt
Securities of a series are denominated or (ii) obligations of a person
controlled or supervised by and acting as an agency or instrumentality of the
government which issued the currency in which the Debt Securities of such series
are denominated, the payment of which obligations is unconditionally guaranteed
by such government, and which, in either case, are full faith and credit
obligations of such government, are denominated in the currency in which the
Debt Securities of such series are denominated and which are not callable or
redeemable at the option of the issuer thereof.
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HOLDER:
The term "Holder" means any Person in whose name a Debt Security of
any series is registered in the Debt Security Register applicable to Debt
Securities of such series.
INDENTURE:
The term "Indenture" shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, pursuant to the applicable provisions hereof.
INDEXED DEBT SECURITY
The term "Indexed Debt Security" means a Debt Security the terms of
which provide that the principal amount thereof payable at Stated Maturity may
be more or less than the principal face amount thereof at original issuance.
INTEREST:
The term "interest", when used with respect to an Original Issue
Discount Debt Security which by its terms bears interest only after maturity,
means interest payable after maturity.
INTEREST PAYMENT DATE:
The term "Interest Payment Date", when used with respect to any series
of Debt Securities, means the Stated Maturity of an installment of interest on
such Debt Securities.
MARKET EXCHANGE RATE:
The term "Market Exchange Rate" shall have the meaning set forth in
Section 3.11.
OFFICERS' CERTIFICATE:
The term "Officers' Certificate", when used with respect to the
Company, shall mean a certificate signed by its Chairman of the Board, Vice
Chairman of the Board, President, or a Vice President and by its Treasurer,
Secretary, Assistant Secretary or Assistant Treasurer and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 15.05 to the extent required by the provisions of such Section.
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OPINION OF COUNSEL:
The term "Opinion of Counsel" shall mean an opinion in writing signed
by legal counsel who may be an employee of or counsel to the Company, and who
shall be reasonable acceptable to the Trustee. Each such opinion shall include
the statements provided for in Section 3.04 and Section 15.05 to the extent
required by the provisions of such Sections.
ORIGINAL ISSUE DISCOUNT DEBT SECURITY:
The term "Original Issue Discount Date Security" means any Debt
Security which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of the maturity thereof
pursuant to Section 7.01.
OUTSTANDING:
The term "Outstanding", when used with respect to Debt Securities or
Debt Securities of any series, means, as of the date of determination, all such
Debt Securities theretofore authenticated and delivered under this Indenture,
except:
(i) such Debt Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) such Debt Securities for whose payment or redemption money
in the necessary amount and in the specified currency 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 Debt Securities, provided, however, that if such Debt
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) such Debt Securities in exchange for or in lieu of which
other such Debt Securities have been authenticated and delivered
pursuant to this Indenture, or such Debt Securities which have been
paid, pursuant to this Indenture, unless proof satisfactory to the
Trustee is presented that any such Debt Securities are held by Persons
in whose hands any of such Debt Securities are a legal, valid and
binding obligation of the Company, and
(iv) such Debt Securities the indebtedness in respect to which
has been discharged in accordance with Section 13.02.
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provided, however, that in determining whether the Holders of the requisite
principal amount of such Outstanding Debt Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, such
Debt Securities owned by the Company or such other obligor upon such Debt
Securities or any Affiliate of the Company or 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 or waiver, only such Debt
Securities which the Trustee knows to be so owned shall be so disregarded.
Such Debt 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 Debt Securities and
that the pledgee is not the Company or any other such obligor upon such Debt
Securities or any Affiliate of the Company or such other obligor. In case of a
dispute as to such right, the decision of the Trustee upon the advice of
counsel shall be full protection to the Trustee. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying all such Debt Securities, if any, known by the Company
to be owned or held by or for the account of any of the above described
Persons; and, subject to the provisions of Section 8.01, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all such Debt Securities not
listed therein are Outstanding for the purpose of any such determination.
PERSON:
The term "Person" means any individual, corporation, partnership,
joint venture, association, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
PLACE OF PAYMENT:
The term "Place of Payment", when used with respect to the Debt
Securities of any series, means the place or places where the principal of
(premium, if any) and interest on the Debt Securities of that series are payable
as specified in accordance with Section 3.01.
PREDECESSOR DEBT SECURITY:
The term "Predecessor Debt Security" of any particular Debt Security
means every previous Debt Security evidencing all or a portion of the same debt
as that evidenced by such particular Debt Security, and for the purposes of this
definition, any Debt Security authenticated and delivered under Section 3.07 in
lieu of a mutilated, lost, destroyed or stolen Debt Security shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Debt
Security.
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PRINCIPAL OFFICE OF THE TRUSTEE:
The term "principal office of the Trustee", or other similar terms,
means the principal office of the Trustee in Wilmington, Delaware, at which at
any particular time its corporate trust business shall be administered, which
office on the date hereof is located at 1201 Market Street, Wilmington, Delaware
19801.
PUBLIC NOTICE:
The term "Public Notice" shall, without limitation, include any filing
or report made in accordance with the requirements of the Securities and
Exchange Commission or any press release or public announcement made by the
Company.
REDEMPTION DATE:
The term "Redemption Date", when used with respect to any Debt
Security to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
REDEMPTION PRICE:
The term "Redemption Price", when used with respect to any Debt
Security to be redeemed, means the price specified in such Debt Security at
which it is to be redeemed pursuant to this Indenture.
REGULAR RECORD DATE:
The term "Regular Record Date" for the interest payable on any Debt
Security on any Interest Payment Date means the date specified in such Debt
Security as the "Regular Record Date" as contemplated by Section 3.01.
RESPONSIBLE OFFICER:
The term "Responsible Officer", when used with respect to the Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller 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.
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SENIOR INDEBTEDNESS:
The term "Senior Indebtedness" means (i) the principal of and premium,
if any, and unpaid interest on indebtedness for money borrowed, (ii) purchase
money and similar obligations, (iii) obligations under capital leases, (iv)
guarantees, assumptions or purchase commitments relating to, or other
transactions as a result of which the Company is responsible for the payment of,
such indebtedness of others, (v) renewals, extensions and refunding of any such
indebtedness, (vi) interest or obligations in respect of any such indebtedness
accruing after the commencement of any insolvency or bankruptcy proceedings; and
(vii) obligations associated with derivative products such as interest rate and
currency exchange contracts, foreign exchange contracts, commodity contracts,
and similar arrangements, unless, in each case, the instrument by which the
Company incurred, assumed or guaranteed the indebtedness or obligations
described in clauses (i) through (vii) hereof expressly provides that such
indebtedness or obligation is not senior in right of payment to the Debt
Securities.
SPECIAL RECORD DATE:
The term "Special Record Date" for the payment of any Defaulted
Interest (as defined in Section 3.08) means a date fixed by the Trustee pursuant
to Section 3.08.
STATED MATURITY:
The term "Stated Maturity" when used with respect to any Debt Security
or any instalment of principal thereof or of interest thereon, means the date
specified in such Debt Security as the fixed date on which the principal of such
Debt Security, or such instalment of interest, is due and payable.
SUBSIDIARY:
The term "Subsidiary" means any corporation of which the Company, or
the Company and one or more Subsidiaries, or any one or more Subsidiaries,
directly or indirectly own more than 50% of the Voting Stock.
TRUSTEE:
The term "Trustee" shall mean Chase Manhattan Bank Delaware and,
subject to the provisions of Article Eight hereof, shall also include its
successors and assigns as Trustee hereunder.
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TRUST INDENTURE ACT OF 1939:
The term "Trust Indenture Act of 1939" means the Trust Indenture Act
of 1939, as amended, as in force at the date as of which this Indenture was
executed; provided, however, that in the event the Trust Indenture Act of 1939
is amended after such date, "Trust Indenture Act of 1939" means to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
VALUATION DATE:
The term "Valuation Date" shall have the meaning set forth in Section
3.11.
VOTING STOCK:
The term "Voting Stock" means outstanding shares of capital stock
having under ordinary circumstances voting power for the election of directors
whether at all times or only so long as no senior class of stock has such voting
power by reason of the happening of any contingency.
ARTICLE TWO.
DEBT SECURITY FORMS.
SECTION 2.01. Forms Generally. The Debt Securities of each series
and the certificates of authentication thereon shall have such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture (the provisions of which shall be appropriate to
reflect the terms of each series of Debt Securities, including the currency or
denomination, which may be Dollars or Foreign Currency), 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, consistently herewith, be determined by the
officers executing such Debt Securities, as evidenced by their signing of such
Debt Securities. Any portion of the text of any Debt Security may be set forth
on the reverse thereof, with an appropriate reference thereto on the face of the
Debt Security.
The definitive Debt Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange, all as
determined by the officers executing such Debt Securities, as evidenced by their
signing of such Debt Securities.
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SECTION 2.02. Forms of Debt Securities. The Debt Securities of each
series shall be in such form or forms (including global form) as shall be
established by or pursuant to a Board Resolution.
Prior to the delivery of a Debt Security of any series in any such
form to the Trustee for the Debt Securities of such series for authentication,
the Company shall deliver to the Trustee the following:
(1) The Board Resolution by or pursuant to which such form of Debt
Security has been approved;
(2) An Officers' Certificate dated the date such Certificate is
delivered to the Trustee stating that all conditions precedent provided for in
this Indenture relating to the authentication and delivery of Debt Securities in
such form have been complied with; and
(3) An Opinion of Counsel stating that Debt Securities in such form,
together with any coupons appertaining thereto, when (a) completed by
appropriate insertions and executed and delivered by the Company to the Trustee
for authentication in accordance with this Indenture, (b) authenticated and
delivered by such Trustee in accordance with this Indenture within the
authorization as to aggregate principal amount established from time to time by
the Board of Directors, and (c) sold in the manner specified in such Opinion of
Counsel, will be the legal, valid and binding obligations of the Company,
subject to applicable bankruptcy, reorganization, insolvency and other similar
laws generally affecting creditors' rights, to general equitable principles and
to such other qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Debt Securities.
The definitive Debt Securities and coupons, if any, shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Debt Securities or
coupons, as evidenced by their execution thereof.
SECTION 2.03. Form of Trustee's Certificate of Authentication. The
following is the form of the Certificate of Authentication of the Trustee to be
endorsed on the face of all Debt Securities substantially as follows:
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This is one of the Debt Securities of the series
designated herein issued under the within-mentioned
Indenture.
CHASE MANHATTAN BANK DELAWARE
as Trustee
By
------------------------------------
Authorized Officer
SECTION 2.04. Debt Securities in Global Form. (a) If the Company
shall establish pursuant to Section 3.01 that the Debt Securities of a
particular series are to be issued in whole or in part in the form of one or
more Global Debt Securities, then the Company shall execute and the Trustee or
its agent shall, in accordance with Section 3.04 and the Company Order delivered
to the Trustee or its agent thereunder, authenticate and deliver such Global
Debt Security or Global Debt Securities, which (i) shall represent, and shall be
denominated in an amount equal to the aggregate principal amount of, the
Outstanding Debt Securities of such series to be represented by such Global Debt
Security or Global Debt Securities, or such portion thereof as the Company shall
specify in a Company Order, (ii) shall be registered in the name of the
Depository for such Global Debt Security or Global Debt Securities or its
nominee, (iii) shall be delivered by the Trustee or its agent to the Depository
or pursuant to the Depository's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless this certificate is presented by
an authorized representative of the Depository to the Company or its agent for
registration of transfer, exchange, or payment, and any certificate issued is
registered in the name of the nominee of the Depository or in such other name as
is requested by an authorized representative of the Depository (and any payment
is made to the nominee of the Depository or to such other entity as is requested
by an authorized representative of the Depository), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch
as the registered owner hereof, the nominee of the Depository, has an interest
herein."
(b) Notwithstanding any other provision of this Section 2.04 or of
Section 3.06, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Debt Security expressly permit such Global Debt Security to be
exchanged in whole or in part for individual certificates representing Debt
Securities, a Global Debt Security may be transferred, in whole but not in part
and in the manner provided in Section 3.06, only to a nominee of the Depository
for such Global Debt Security, or to the Depository, or a successor Depository
for such Global Debt Security selected or approved by the Company, or to a
nominee of such successor Depository.
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(c) (1) If at any time the Depository for a Global Debt Security
notifies the Company that it is unwilling or unable to continue as Depository
for such Global Debt Security or if at any time the Depository for the Global
Debt Securities for such series shall no longer be eligible or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, the Company shall appoint a successor Depository with
respect to such Global Debt Security. If a successor Depository for such Global
Debt Security is not appointed by the Company within 90 days after the Company
receives notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee or its agent, upon receipt of a Company Request for the
authentication and delivery of certificates representing Debt Securities of such
series in exchange for such Global Debt Security, will authenticate and deliver,
certificates representing Debt Securities of such series of like tenor
and terms in an aggregate principal amount equal to the principal amount of the
Global Debt Security in exchange for such Global Debt Security.
(2) The Company may at any time and in its sole discretion determine
that the Debt Securities of any series or portion thereof issued or issuable in
the form of one or more Global Debt Securities shall no longer be represented by
such Global Debt Security or Global Debt Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Request for the
authentication and delivery of certificates representing Debt Securities of such
series in exchange in whole or in part for such Global Debt Security, will
authenticate and deliver certificates representing Debt Securities of such
series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Debt Security or Global Debt
Securities representing such series or portion thereof in exchange for such
Global Debt Security or Global Debt Securities.
(3) If specified by the Company pursuant to Section 3.01 with respect
to Debt Securities issued or issuable in the form of a Global Debt Security, the
Depository for such Global Debt Security may surrender such Global Debt Security
in exchange in whole or in part for certificates representing Debt Securities of
such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depository. Thereupon the Company shall
execute, and the Trustee or its agent shall authenticate and deliver, without a
service charge, (1) to each Holder specified by the Security Registrar or the
Depository a certificate or certificates representing Securities of the same
series of like tenor and terms and of any authorized denomination as requested
by such person in an aggregate principal amount equal to and in exchange for
such Holder's beneficial interest as specified by the Security Registrar or the
Depository in the Global Debt Security; and (2) to such Depository a new Global
Debt Security of like tenor and terms and in an authorized denomination equal to
the difference, if any, between the principal amount of the surrendered Global
Debt Security and the aggregate principal amount of certificates representing
Debt Securities delivered to Holders thereof.
(4) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and
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deliver certificates representing Debt Securities in definitive registered form
in authorized denominations for Debt Securities of the same series or any
integral multiple thereof. Upon the exchange of the entire principal amount of
a Global Debt Security for certificates representing Debt Securities, such
Global Debt Security shall be cancelled by the Trustee or its agent. Except as
provided in the preceding paragraph, certificates representing Debt Securities
issued in exchange for a Global Debt Security pursuant to this Section shall be
registered in such names and in such authorized denominations for Debt
Securities of that Series or any integral multiple thereof, as the Security
Registrar or Depository shall instruct the Trustee or its agent. The Trustee or
the Security Registrar shall deliver at its Corporate Trust Office such
certificates representing Debt Securities to the Holders in whose names such
Debt Securities are so registered.
ARTICLE THREE.
THE DEBT SECURITIES.
SECTION 3.01. Title and Terms. The aggregate principal amount of
Debt Securities which may be authenticated and delivered under this Indenture is
unlimited. The Debt Securities may be issued up to the aggregate principal
amount of Debt Securities from time to time authorized by or pursuant to a Board
Resolution.
The Debt Securities may be issued in one or more series. All Debt
Securities of each series issued under this Indenture shall in all respects be
equally and ratably entitled to the benefits hereof with respect to such series
without preference, priority or distinction on account of the actual time or
times of the authentication and delivery or maturity of the Debt Securities of
such series. There shall be established in or pursuant to a Board Resolution,
and set forth in an Officers' Certificate to the extent not established in a
Board Resolution, or established in one or more indentures supplemental hereto,
prior to the issuance of Debt Securities of any series:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other series of
Debt Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered
under this Indenture (except for Debt Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Debt Securities of that series pursuant to this Article
Three, the second paragraph of Section 4.03, or Section 11.04);
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(3) the date or dates (or the manner of calculation thereof) on
which the principal of the Debt Securities of the series is payable;
(4) the rate or rates (or the manner of calculation thereof) at
which the Debt Securities of the series shall bear interest, if any,
the date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and the Regular
Record Date for the Interest payable on any Interest Payment Date;
(5) the Place of Payment;
(6) the period or periods within which, the price or prices at
which, the currency or currency units in which, and the terms and
conditions upon which Debt Securities of the series may be redeemed,
in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem or purchase
Debt 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 in the currency at
which, the currency or currency units in which, and the terms and
conditions upon which Debt Securities of the series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
(8) the denominations in which the Debt Securities of such series
shall be issuable if other than denominations of $1,000 and any
integral multiple thereof;
(9) the application, if any, of Section 13.02;
(10) if other than Dollars, the currencies in which payments of
interest or principal of (and premium, if any, with respect to) the
Debt Securities of the series are to be made;
(11) if the interest on or principal of (or premium, if any, with
respect to) the Debt Securities of the series are to be payable, at
the election of the Company or a Holder thereof or otherwise, in a
currency other than that in which such Debt Securities are payable,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the currency in such Debt
Securities are denominated or stated to be payable and the currency in
which such Debt Securities or any of them are to be so payable;
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(12) whether the amount of payments of interest on or principal
of (or premium, if any, with respect to) the Debt Securities of such
series may be determined with reference to an index, formula or other
method (which index, formula or method or method may be based, without
limitation, on one or more currencies, commodities, equity indices or
other indices), and, if so, the terms and conditions upon which and
the manner in which such amounts shall be determined and paid or
payable;
(13) the extent to which any Debt Securities will be issuable in
permanent global form, the manner in which any payments on a permanent
global Debt Security will be made, and the appointment of any
Depository relating thereto;
(14) any deletions from, modifications of or additions to the
Events of Default or covenants with respect to the Debt Securities of
such series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(15) if any of the Debt Securities of such series are to be
issuable upon the exercise of warrants, this shall be so established
as well as the time, manner and place for such Debt Securities to be
authenticated and delivered;
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Debt Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
SECTION 3.02. Denominations. The Debt Securities of each series
shall be issuable in registered form without coupons in such denominations as
shall be specified as contemplated in Section 3.01. In the absence of any
specification with respect to the Debt Securities of any series, the Debt
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof, which may be in Dollars or any Foreign Currency.
SECTION 3.03. Payment of Principal and Interest. The principal of,
premium, if any, and interest on the Debt Securities shall be payable at the
office or agency of the Company designated for that purpose in the Place of
Payment, as provided in Section 5.02; provided, however, that interest may be
payable at the option of the Company by check
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mailed to the address of the Person entitled thereto as such address shall
appear on the Debt Security Register on the record date for such interest
payment.
SECTION 3.04. Execution of Debt Securities. The Debt Securities
shall be executed manually or by facsimile in the name and on behalf of the
Company by its Chairman of the Board of Directors, its President, one of its
Vice Presidents or its Treasurer and by its Secretary or one of its Assistant
Secretaries under its corporate seal (which may be printed, engraved or
otherwise reproduced thereon, by facsimile or otherwise). Only such Debt
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, manually executed by the Trustee, shall be
entitled to the benefits of this Indenture or be valid or become obligatory for
any purpose. Such certificate by the Trustee upon any Debt Security executed by
the Company shall be conclusive evidence that the Debt Security so authenticated
has been duly authenticated and delivered hereunder and that the Holder is
entitled to the benefits of this Indenture.
In case any officer of the Company who shall have executed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
executed shall have been authenticated and delivered by the Trustee, or disposed
of by the Company, such Debt Securities nevertheless shall be valid and binding
and may be authenticated and delivered or disposed of as though the Person who
executed such Debt Securities had not ceased to be such officer of the Company;
and any Debt Securities may be executed on behalf of the Company by such Persons
as, at the actual date of the execution of such Debt Security, shall be the
proper officers of the Company, although at the date of such Debt Security or of
the execution of this Indenture any such Person was not such an officer.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Debt Securities of any series, properly
created in accordance with Section 3.01 and executed by the Company, to the
Trustee for authentication; and the Trustee shall authenticate and deliver such
Debt Securities upon Company Order. In the event that any other Person performs
the Trustee's duties as Authenticating Agent pursuant to a duly executed
agreement, the Company shall notify the Trustee in writing of the issuance of
any Debt Securities hereunder, such notice to be delivered in accordance with
the provisions of Section 15.03 on the date such Debt Securities are delivered
by the Company for authentication to such other Person.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, in addition
to the Opinion of Counsel to be furnished to the Trustee pursuant to Section
15.05 and the Officers' Certificate relating to the issuance of any series of
Debt Securities pursuant to Sections 15.05 and 3.01, Opinions of Counsel stating
that:
(1) all instruments furnished to the Trustee conform to the
requirements of this Indenture and constitute sufficient authority
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hereunder for the Trustee to authenticate and deliver such Debt
Securities;
(2) all laws and requirements with respect to the form and
execution by the Company of the supplemental indenture, if any, have
been complied with, the execution and delivery of the supplemental
indenture, if any, will not violate the terms of this Indenture, the
supplemental indenture has been duly qualified under the Trust
Indenture Act of 1939, the Company has corporate power to execute and
deliver any such supplemental indenture and has taken all necessary
corporate action for those purposes and any such supplemental
indenture has been executed and delivered and constitutes the legal,
valid and binding obligation of the Company enforceable in accordance
with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in effect);
(3) the form and terms of such Debt Securities have been
established in conformity with the provisions of this Indenture;
(4) all laws and requirements with respect to the execution and
delivery by the Company of such Debt Securities have been complied
with, the authentication and delivery of the Debt Securities by the
Trustee will not violate the terms of this Indenture, the Company has
the corporate power to issue such Debt Securities and such Debt
Securities, assuming due authentication and delivery by the Trustee,
constitute legal, valid and binding obligations of the Company in
accordance with their terms and are entitled to the benefits of this
Indenture, equally and ratably with all other Outstanding Debt
Securities, if any, of such series; and
(5) such other matters as the Trustee may reasonably request.
The Trustee shall not be required to authenticate such Debt
Securities if the issue thereof will adversely affect the Trustee's own rights,
duties or immunities under the Debt Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee or such action
would expose the Trustee to personal liability to existing Holders.
Unless otherwise provided in the form of Debt Security for any
series, all Debt Securities shall be dated the date of their authentication.
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No Debt Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose, unless there appears on such Debt
Security a certificate of authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and such certificate upon
any Debt Security shall be conclusive evidence, and the only evidence, that such
Debt Security has been duly authenticated and delivered hereunder.
SECTION 3.05. Temporary Debt Securities. Pending the preparation of
definitive Debt Securities of any series, the Company may execute, and upon
receipt of the documents required by Sections 2.02, 3.01 and 3.04, together with
a Company Order, the Trustee shall authenticate and deliver, such temporary Debt
Securities which may be printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denominations, substantially of the tenor
of such definitive Debt Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such temporary Debt Securities may determine, as
evidenced by their execution of such temporary Debt Securities.
If temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of any
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series, upon surrender of the temporary Debt
Securities of such series at any office or agency maintained by the Company for
such purposes as provided in Section 5.02, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Debt Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefore a like principal amount of definitive Debt Securities of
such series having the same interest rate and Stated Maturity and bearing
interest from the same date of any authorized denominations. Until so exchanged
the temporary Debt Securities of such series shall in all respects be entitled
to the same benefits under this Indenture as definitive Debt Securities of such
series.
SECTION 3.06. Exchange and Registration of Transfer of Debt
Securities. Debt Securities may be exchanged for a like aggregate principal
amount of Debt Securities of such series that are of other authorized
denominations. Debt Securities to be exchanged shall be surrendered at any
office or agency to be maintained for such purpose by the Company, as provided
in Section 5.02, and the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefore the Debt Security or Debt
Securities of authorized denominations which the Debt Securityholder making the
exchange shall be entitled to receive. Each agent of the Company appointed
pursuant to Section 5.02 as a person authorized to register and register
transfer of Debt Securities is sometimes herein referred to as a "Debt Security
registrar."
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The Company shall keep, at each such office or agency of the Company
maintained for such purpose, as provided in Section 5.02, a register for each
series of Debt Securities hereunder (the registers of all Debt Security
registrars being herein sometimes collectively referred to as the "Debt Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Debt Securities and shall
register the transfer of Debt Securities as in this Article Three provided. At
all reasonable times, such Debt Security Register shall be open for inspection
by the Trustee and any Debt Security registrar other than the Trustee. Upon due
presentment for registration of transfer of any Debt Security at any such office
or agency, the Company shall execute and register and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new Debt
Security or Debt Securities of authorized denominations for an equal aggregate
principal amount. Registration or registration of transfer of any Debt Security
by any Debt Security registrar in the registry books maintained by such Debt
Security registrar, and delivery of such Debt Security, duly authenticated,
shall be deemed to complete the registration or registration of transfer of such
Debt Security.
The Company will at all times designate one Person (who may be the
Company and who need not be a Debt Security registrar) to act as repository of a
master list of names and addresses of Holders of the Debt Securities. The
Trustee shall act as such repository unless and until some other Person is, by
written notice from the Company to the Trustee and each Debt Security registrar,
designated by the Company to act as such. The Company shall cause each Debt
Security registrar to furnish to such repository, on a current basis, such
information as such repository may reasonably request as to registrations,
transfers, exchanges and other transactions effected by such registrar, as may
be necessary or advisable to enable such repository to maintain such master list
on as current a basis as is reasonably practicable.
No Person shall at any time be appointed as or act as a Debt Security
registrar unless such Person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent required
by applicable law and regulations.
All Debt Securities presented to a Debt Security registrar for
registration of transfer shall be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and such Debt Security registrar duly executed by the registered Holder
or his attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debt 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 therewith.
The Company shall not be required to issue, exchange or register a
transfer of (a) any Debt Securities of any series for a period of 15 days next
preceding the
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mailing of a notice of redemption of Debt Securities of such series and ending
at the close of business on the day of the mailing of a notice of redemption of
Debt Securities of such series so selected for redemption, or (b) any Debt
Securities selected, called or being called for redemption except, in the case
of any Debt Security to be redeemed in part, the portion thereof not so to be
redeemed.
All Debt Securities issued in exchange for or upon registration of
transfer of Debt Securities shall be valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Debt Securities surrendered for such exchange or registration
of transfer.
None of the Trustee, any agent of the Trustee, any Paying Agent or the
Company will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
SECTION 3.07. Mutilated, Destroyed, Lost or Stolen Debt Securities.
In case any temporary or definitive Debt Security shall become mutilated or be
destroyed, lost or stolen, the Company in its discretion may execute, and upon
its request the Trustee shall authenticate and deliver, a new Debt Security,
bearing a number, letter or other distinguishing mark not contemporaneously
Outstanding, in exchange and substitution for the mutilated Debt Security, or in
lieu of and in substitution for the Debt Security so destroyed, lost or stolen.
In every case the applicant for a substituted Debt Security shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to save each of them harmless, and, in every case of destruction, loss or theft,
the applicant shall also furnish to the Company and to the Trustee evidence to
their satisfaction of the destruction, loss or theft, of such Debt Security and
of the ownership thereof.
In the absence of notice to the Trustee or the Company that such Debt
Security has been acquired by a bona fide purchaser, the Trustee shall
authenticate any such substituted Debt Security and deliver the same upon any
Company Request. Upon the issuance of any substituted Debt Security, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Debt Security which has matured or is
about to mature shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substituted Debt Security, pay or authorize
the payment of the same (without surrender thereof except in the case of a
mutilated Debt Security) if the applicant for such payment shall furnish to the
Company and to the Trustee such security or indemnity as may be required by them
to save each of them harmless and, in case of destruction, loss or theft,
evidence satisfactory to the Company and to the Trustee of the destruction, loss
or theft of such Debt Security and of the ownership thereof.
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Every substituted Debt Security issued pursuant to the provisions of
this Section 3.07 by virtue of the fact that any Debt Security is destroyed,
lost or stolen shall constitute an additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Debt Security shall be
found at any time, and shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Debt Securities duly issued
hereunder. All Debt Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debt Securities
and shall preclude (to the extent permitted by law) any and all other rights or
remedies with respect to the replacement or payment of negotiable instruments or
other securities without their surrender.
SECTION 3.08. Payment of Interest; Interest Rights Preserved.
Interest which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date, on any Debt Security, shall unless otherwise provided in
such Debt Security be paid to the Person in whose name the Debt Security (or one
or more Predecessor Debt Securities) is registered at the close of business on
the Regular Record Date for such interest.
Unless otherwise stated in the form of Debt Security of a series,
interest on the Debt Securities of any series shall be computed on the basis of
a 360 day year comprised of twelve 30 day months.
Any interest on any Debt Security 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
registered 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 (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names any such Debt Securities (or
their respective Predecessor Debt 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 Debt Security 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
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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 therefore to be mailed, first-class postage prepaid, to each
Holder of such Debt Securities, at his address as it appears in the
Debt 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 therefore having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names such Debt Securities (or their respective Predecessor Debt
Securities) are registered on such Special Record Date and shall no
longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debt Securities of that series may be
listed, and upon such notice as may be required by such exchange, if ,
after notice given by the Company to the Trustee of the proposed
payment pursuant to this Clause, such payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Debt
Security delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debt Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Debt Security.
SECTION 3.09. Persons Deemed Owners. The Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name any
Debt Security is registered as the owner of such Debt Security for the purpose
of receiving payment of principal of, premium, if any, and (subject to Section
3.08) interest on, such Debt Security and for all other purposes whatsoever
whether or not such Debt 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 3.10. Cancellation of Debt Securities Paid, etc. All Debt
Securities surrendered for the purpose of payment, redemption, exchange or
registration of transfer or delivered in satisfaction in whole or in part of any
sinking fund obligation shall, if surrendered to the Company or any agent of the
Trustee or the Company under this Indenture, be delivered to the Trustee and
promptly cancelled by it, or, if surrendered to the Trustee, shall be promptly
cancelled by it, and no Debt Securities shall be issued in lieu
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thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee shall dispose of cancelled Debt Securities in accordance
with a Company Order.
SECTION 3.11. Currency and Manner of Payments. (a) With respect to
Debt Securities denominated in Dollars or a Foreign Currency, the following
payment provisions shall apply:
(1) Except as provided in subparagraph (a)(2) or in paragraph
(c) of this Section 3.11, payment of principal of and premium, if any,
on any Debt Securities will be made at the offices established
pursuant to Section 5.02 by delivery of a check in the currency in
which the Debt Security is denominated on the payment date against
surrender of such Debt Security, and any interest on any Debt Security
will be paid at such office by mailing a check in the currency in
which the Debt Securities were issued to the Person entitled thereto
at the address of such Person appearing on the Debt Security Register.
(2) Payment of the principal of and premiums, if any, and
interest on such Debt Security may also, subject to applicable laws
and regulations, be made at such other place or places as may be
designated by the Company by any appropriate method.
(b) Not later than the fourth Business Day after the Record Date for
such Interest Payment Date, the Paying Agent will deliver to the Company a
written notice specifying, in the currency in which each series of the Debt
Securities are denominated, the respective aggregate amounts of principal of and
premium, if any, and interest on the Debt Securities to be made on such payment
date, specifying the amounts so payable in respect of the Debt Securities. The
failure of the Paying Agent to deliver such notice shall not relieve the Company
from its obligation to make all payments with respect to any Debt Security when
due.
(c) If the Foreign Currency in which any of the Debt Securities are
denominated ceases to be used both by the government of the country which issued
such currency and for the settlement of transactions by public institutions of
or within the international banking community, then with respect to each date
for the payment of Foreign Currency occurring after the last date on which the
Foreign Currency was so used (the "Conversion Date"), the Dollar shall be the
currency of payment for use on each such Interest Payment Date. The Dollar
amount to be paid by the Company to the Trustee and by the Trustee or any paying
agent to the Holder of such Debt Securities with respect to such payment date
shall be the Dollar Equivalent of the Foreign Currency as determined by the
Currency Determination Agent as of the Record Date (the "Valuation Date") in the
manner provided in paragraph (d).
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(d) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Currency Determination Agent as of each Valuation Date and
shall be obtained by converting the specified Foreign Currency into Dollars at
the Market Exchange Rate on the Valuation Date.
(e) The "Market Exchange Rate" shall mean, for any currency, the
highest firm bid quotation for U.S. dollars received by the Currency
Determination Agent at approximately 11:00 a.m., New York City time, on the
second Business Day preceding the applicable payment date (or, if no such rate
is quoted on such date, the last date on which such rate was quoted), from three
recognized foreign exchange dealers in the City of New York selected by the
Currency Determination Agent and approved by the Company (one of which may be
the Currency Determination) for the purchase by the quoting dealer, for
settlement on such payment date, of the aggregate amount of such currency
payable on such payment in respect of all Notes denominated in such currency.
All decisions and determinations of the Currency Determination Agent
regarding the Dollar Equivalent of the Foreign Currency and the Market Exchange
Rate shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company
and all Holders of the Debt Securities. In the event that the Foreign Currency
ceases to be used both by the government of the country which issued such
currency and for the settlement of transactions by public institutions of or
within the international banking community, the Company, after learning thereof,
will immediately give notice thereof to the Trustee (and the Trustee will
promptly thereafter give notice in the manner provided in Section 15.03 to the
Holders) specifying the Conversion Date.
The Trustee shall be fully justified and protected in relying on and
acting upon the information so received by it from the Company or the Currency
Determination Agent and shall not otherwise have any duty or obligation to
determine such information independently.
If the principal of (and premium, if any) and interest on any Debt
Securities is payable in a Foreign Currency and such Foreign Currency is not
available for payment due to the imposition of exchange controls or other
circumstances beyond the control of the Company, then the Company shall be
entitled to satisfy its obligations to Holders under this Indenture by making
such payment in Dollars on the basis of the Market Exchange Rate for such
Foreign Currency on the latest date for which such rate was established on or
before the date on which payment is due. Any payment made pursuant to this
Section 3.11 in Dollars where the required payment is in a Foreign Currency
shall not constitute a default under this Indenture.
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ARTICLE FOUR.
REDEMPTION OF DEBT SECURITIES; SINKING FUNDS.
SECTION 4.01. Applicability of Article. The Company may reserve the
right to redeem and pay before Stated Maturity all or any part of the Debt
Securities of any series, either by optional redemption, sinking fund (mandatory
or optional) or otherwise, by provision therefor in the form of Debt Security
for such series on such terms as are specified in such form or the Board
Resolution or Officers' Certificate delivered pursuant to Section 3.01 or the
indenture supplemental hereto as provided in Section 3.01 with respect to Debt
Securities of such series. Redemption of Debt Securities of any series shall be
made in accordance with the terms of such Debt Securities and, to the extent
that this Article does not conflict with such terms, in accordance with this
Article.
SECTION 4.02. Notice of Redemption; Selection of Debt Securities. In
case the Company shall desire to exercise the right to redeem all, or, as the
case may be, any part of a series of Debt Securities pursuant to Section 4.01,
the Company shall fix a date for redemption and the Company, or, at the
Company's request, the Trustee in the name of and at the expense of the
Company, shall mail a notice of such redemption at least 30 and not more than 60
days prior to the date fixed for redemption to the Holders of Debt Securities so
to be redeemed as a whole or in part at their last addresses as the same appear
on the Debt Securities Register. Such mailing shall be by first class mail.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives such
notice. In any case, failure to give such notice by mail or any defect in the
notice to the Holder of any Debt Security designated for redemption as a whole
or in part shall not affect the validity of the proceedings for the redemption
of any other Debt Security.
Notice of redemption shall be given in the name of the Company and
shall specify the date fixed for redemption, the redemption price at which Debt
Securities of any series are to be redeemed, the place of payment (which shall
be at the offices or agencies to be maintained by the Company pursuant to
Section 5.02), that payment of the redemption price will be made upon
presentation and surrender of such Debt Securities, that interest accrued to the
date fixed for redemption will be paid as specified in said notice,that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue, and the Section of this Indenture pursuant to which Debt
Securities will be redeemed. In case less than all Debt Securities of any
series are to be redeemed, the notice of redemption shall also identify the
particular Debt Securities to be redeemed as a whole or in part and shall state
that the redemption is for the sinking fund, if such is the case. In case any
Debt Security is to be redeemed in part only, the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall state
that on and after the date fixed for redemption, upon surrender of such Debt
Security, a new Debt Security or Debt Securities of
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such series in aggregate principal amount equal to the unredeemed portion
thereof will be issued without charge to the Holder.
If less than all the Debt Securities of any series are to be redeemed,
the Company shall give the Trustee notice, at least 45 days (or such shorter
period acceptable to the Trustee) in advance of the date fixed for redemption,
as to the aggregate principal amount of Debt Securities to be redeemed. Debt
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Debt Securities of such Series or any multiple thereof.
Thereupon the Trustee shall select, in such manner as in its sole discretion it
shall deem appropriate and fair, the Debt Securities or portions thereof to be
redeemed, and shall as promptly as practicable notify the Company of the Debt
Securities or portions thereof so selected. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Debt Securities of any series shall relate, in the case of any Debt Security
redeemed or to be redeemed only in part, to the portion of the principal amount
of such Debt Security which has been or is to be redeemed.
On or prior to the date fixed for redemption specified in the notice
of redemption given as provided in this Section 4.02, the Company will deposit
with the Trustee or with the paying agent an amount of money in the currency in
which the Debt Securities of such series are payable sufficient to redeem on the
date fixed for redemption all the Debt Securities so called for redemption at
the appropriate redemption price, together with accrued interest to the date
fixed for redemption.
The Trustee shall not mail any notice of redemption of any series of
Debt Securities during the continuation of any default in payment of interest on
any series of Debt Securities when due or of any Event of Default, except that
where notice of redemption with respect to any series of Debt Securities shall
have been mailed prior to the occurrence of such default or Event of Default,
the Trustee shall redeem such Debt Securities provided funds are deposited with
it for such purpose.
SECTION 4.03. Payment of Debt Securities Called for Redemption. If
notice of redemption has been given as herein provided, the Debt Securities or
portions of Debt Securities with respect to which such notice has been given
shall become due and payable on the date and at the place stated in such notice
at the applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Company shall
default in the payment of such Debt Securities or portions thereof at the
redemption price, together with interest accrued to said date) interest on the
Debt Securities or portions of Debt Securities so called for redemption shall
cease to accrue, and such Debt Securities and portions of Debt Securities shall
be deemed not to be Outstanding hereunder and shall not be entitled to any
benefit under this Indenture except to receive payment of the redemption price,
together with accrued interest to the date fixed for redemption. On
presentation and surrender of such Debt Securities at the place of payment in
said notice specified, the said Debt Securities or the specified portions
thereof shall be
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paid and redeemed by the Company at the applicable redemption price, together
with interest accrued thereon to the date fixed for redemption; provided,
however, that any installments of interest becoming due on the date fixed for
redemption shall be payable to the Holders of such Debt Securities, or one or
more previous Debt Securities evidencing all or a portion of the same debt as
that evidenced by such particular Debt Securities, registered as such on the
relevant record dates according to their terms and the provisions of Section
3.08.
Upon presentation and surrender of any Debt Security redeemed in part
only, with, if the Company or the Trustee so required, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Debt
Security or Debt Securities of the same series having the same interest rate and
Stated Maturity and bearing interest from the same date, of any authorized
denominations as requested by such Holder, in aggregate principal amount equal
to the unredeemed portion of the Debt Security so presented and surrendered.
SECTION 4.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Debt Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in a written statement signed by a Responsible Officer of the
Company and delivered to the Trustee at least 45 days prior to the last date on
which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by, either (a) the Company or
(b) an entity specifically identified in such written statement directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company.
SECTION 4.05. Provisions with Respect to any Sinking Funds. Unless
the form or terms of any series of Debt Securities shall provide otherwise, in
lieu of making all or any part of any mandatory sinking fund payment with
respect to such series of Debt Securities in cash, the Company may at its option
(1) deliver to the Trustee for cancellation any Debt Securities of such series
theretofore acquired by the Company, or (2) receive credit for any Debt
Securities of such series (not previously so credited) acquired by the Company
and theretofore delivered to the Trustee for cancellation, then Debt Securities
so delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to the Debt Securities of such series.
On or before the 45th day next preceding each sinking fund Redemption
Date, the Company will deliver to the Trustee a certificate signed by the Chief
Financial Officer, any Vice President, the Treasurer or any Assistant Treasurer
of the Company specifying (i) the portion of the mandatory sinking fund payment
to be satisfied by deposit of cash in the currency in which the Debt Securities
of such series are payable, by delivery of Debt Securities theretofore purchased
or otherwise acquired by the Company (which Debt Securities shall accompany such
certificate) and by credit for Debt Securities
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acquired by the Company and theretofore delivered to the Trustee for
cancellation redeemed by the Company and stating that the credit to be applied
has not theretofore been so applied and (ii) whether the Company intends to
exercise its right, if any, to make an optional sinking fund payment, and, if
so, the amount thereof. Such certificate shall also state that no Event of
Default has occurred and is continuing. Such certificate shall be irrevocable
and upon its delivery the Company shall be obligated to make the payment or
payments therein referred to, if any, on or before the next succeeding sinking
fund payment date. In case of the failure of the Company on or before the 45th
day next preceding each sinking fund Redemption Date to deliver such certificate
(or to deliver the Debt Securities specified in this paragraph), the sinking
fund payment due on the next succeeding sinking fund payment date shall be paid
entirely in cash (in the currency described above) and shall be sufficient to
redeem the principal amount of Debt Securities as a mandatory sinking fund
payment, without the option to deliver or credit Debt Securities as provided in
the first paragraph of this Section 4.04 and without the right to make an
optional sinking fund payment as provided herein.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Debt Securities made in cash (in the currency described
above) shall exceed the minimum authorized denomination set forth in an
Officers' Certificate pursuant to Section 3.01 or the equivalent in the currency
in which the Debt Securities of such series are payable (or a lesser sum if the
Company shall so request), unless otherwise provided by the terms of such series
of Debt Securities, said cash shall be applied by the Trustee on the sinking
fund Redemption Date with respect to Debt Securities of such series at the
applicable sinking fund Redemption Price with respect to Debt Securities of such
series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 4.03. The Trustee shall select,
in the manner provided in Section 4.02, for redemption on such sinking fund
Redemption Date a sufficient principal amount of Debt Securities of such series
to utilize said cash and shall thereupon cause notice of redemption of the Debt
Securities of such series for the sinking fund to be given in the manner
provided in Section 4.02 (and with the effect provided in Section 4.03) for the
redemption of Debt Securities in part at the option of the Company. Debt
Securities of any series which are identified by registration and certificate
number in an Officer's Certificate at least 45 days prior to the sinking fund
Redemption Date as being beneficially owned by, and not pledged or hypothecated
by, the Company or an entity directly or indirectly controlling or controlled by
or under direct or indirect common control with the Company shall be excluded
from Debt Securities of such series eligible for selection for redemption. Any
sinking fund moneys not so applied or allocated by the Trustee to the redemption
of Debt Securities of such series shall be added to the next cash sinking fund
payment with respect to Debt Securities of such series received by the Trustee
and, together with such payment, shall be applied in accordance with the
provisions of this Section 4.05. Any and all sinking fund moneys with respect
to Debt Securities of any series held by the Trustee at the maturity of Debt
Securities of such series, and not held for the payment or redemption of
particular Debt Securities of such series, shall be applied by the Trustee,
together with other moneys, if necessary, to be
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deposited sufficient for the purpose, to the payment of the principal of the
Debt Securities of such series at maturity.
The Trustee shall not convert any currency in which the Debt
Securities of such series are payable for the purposes of such sinking fund
application unless a Company Request is made, and any such conversion agreed to
by the Trustee in response to such request shall be for the account and at the
expense of the Company and shall not affect the Company's obligation to pay the
Holders in the currency to which such Holder is entitled.
On or before each sinking fund Redemption Date provided with respect
to Debt Securities of any series, the Company shall pay to the Trustee in cash
in the currency described above a sum equal to all accrued interest, if any, to
the date fixed for redemption on Debt Securities to be redeemed on such sinking
fund Redemption Date pursuant to this Section 4.05.
ARTICLE FIVE.
PARTICULAR COVENANTS OF THE COMPANY.
SECTION 5.01. Payment of Principal, Premium and Interest. The
Company will duly and punctually pay or cause to be paid (in the currency in
which the Debt Securities of such series are payable) the principal of and
premium, if any, and interest on each of the Debt Securities at the place
(subject to Section 3.03), at the respective times and in the manner provided in
each series of Debt Securities and in this Indenture.
SECTION 5.02. Offices for Notices and Payments, etc. (a) So long as
the Debt Securities of any series remain Outstanding, the Company will maintain
at the Place of Payment, an office or agency where the Debt Securities may be
presented for payment, an office or agency where the Debt Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided, and an office or agency where notices and demands to or upon the
Company in respect of the Debt Securities or of this Indenture may be served and
shall give the Trustee written notice thereof and any changes in the location
thereof. In case the Company shall at any time fail to maintain any such office
or agency, or shall fail to give notice to the Trustee of any change in the
location thereof, presentation and demand may be made and notice may be served
in respect of the Debt Securities or of this Indenture at said office of the
Trustee.
(b) In addition to the office or agency maintained by the Company
pursuant to Section 5.02(a), the Company may from time to time designate one or
more other offices or agencies where the Debt Securities may be presented for
payment and presented for registration of transfer and for exchange in the
manner provided in this
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Indenture, and the Company may from time to time rescind such designations, as
the Company may deem desirable or expedient; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain such office and agency at the Place of Payment, for the
purposes abovementioned. The Company will give to the Trustee prompt written
notice of (i) any such designation or rescission thereof, and (ii) the location
of any such office or agency outside the Place of Payment and of any change of
location thereof.
SECTION 5.03. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 8.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
SECTION 5.04. Provisions as to Paying Agent. (a) (1) Whenever the
Company shall have one or more Paying Agents for any series of Debt Securities
other than the Trustee, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Debt Securities of such series, deposit
with a Paying Agent a sum sufficient to pay such amount becoming due, such sum
to be held as provided by the Trust Indenture Act of 1939, and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
(2) The Company will cause each Paying Agent 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: (i) comply with the provisions of the Trust Indenture
Act of 1939 applicable to it as a Paying Agent and (ii) during the continuance
of any default by the Company (or any other obligor upon any series of Debt
Securities) in the making of any payment in respect of the Debt Securities of
such series, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent as such.
(b) If the Company shall act as its own paying agent, it will, on or
prior to each due date of the principal of and premium, if any, or interest on
Debt Securities of any series, set aside, segregate and hold in trust for the
benefit of the Holders of such Debt Securities a sum sufficient to pay such
principal and premium, if any, or interest so becoming due and will notify the
Trustee of any failure to take such action and of any failure by the Company (or
by any other obligor on such series of Debt Securities) to make any payment of
the principal of and premium, if any, or interest on the Debt Securities when
the same shall become due and payable.
(c) Anything in this Section 5.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture with respect to any or all series of Debt Securities
then Outstanding, or for any other reason, pay or cause to be paid to the
Trustee all sums held in trust by the Company,
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or any paying agent hereunder, as required by this Section 5.04, such sums to be
held by the Trustee upon the trusts herein contained.
(d) Anything in this Section 5.04 to the contrary notwithstanding, the
agreement to hold sums in trust provided in this Section 5.04 is subject to
Section 13.04.
SECTION 5.05. Certificate to Trustee. So long as the Debt Securities
of any series remain Outstanding, the Company will deliver to the Trustee on or
before 120 days after the end of each fiscal year an Officers' Certificate
stating that in the course of the performance by the signers of their duties as
officers of the Company, they would normally have knowledge of any default by
the Company in the performance or fulfillment or observance of any covenants or
agreements contained herein during the preceding fiscal year, stating whether or
not they have knowledge of any such default and, if so, specifying each such
default of which the signers have knowledge and the nature thereof. The
Officers' Certificate need not comply with Section 15.05.
SECTION 5.06. Waivers of Covenants. Anything in this Indenture to
the contrary notwithstanding, the Company may fail or omit, in respect of any
series of Debt Securities, and in any particular instance, to comply with a
covenant, agreement or condition contained in Sections 5.02 and 5.04 (other than
in 5.04(a)(1) and (2)) to 5.05, inclusive, if the Company shall have obtained
and filed with the Trustee before or after the time for such compliance the
consent in writing of the Holders of more than 50% in aggregate principal amount
of the Debt Securities of the series affected by such waiver at the time
Outstanding, either waiving such compliance in such instance or generally
waiving compliance with such covenant or condition, but no such waiver shall
extend to or affect any obligation not expressly waived nor impair any right
consequent thereon and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect.
ARTICLE SIX.
HOLDERS' LISTS AND REPORTS BY THE COMPANY
AND THE TRUSTEE.
SECTION 6.01. Holders' Lists. The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee, not more than 15 days
after each Regular Record Date with respect to the Debt Securities of any
series, and at such other times as the Trustee may request in writing, within 30
days after receipt by the Company of any such request, a list in such form as
the Trustee may reasonably require of the names and addresses of the Holders of
Debt Securities of such series as of a date not more than 15 days prior to the
time such information is furnished; provided, however, that no such list with
respect to any particular series of Debt Securities need be furnished at any
such time if the
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Trustee is in possession thereof by reason of its acting as the Debt Security
registrar for such series designated under Section 3.06 or otherwise.
SECTION 6.02. Preservation and Disclosure of Lists. (a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of Debt Securities
contained in the most recent list furnished to it as provided in Section 6.01 or
received by the Trustee in the capacity of the Debt Security registrar (if so
acting) under Section 3.06. The Trustee may destroy any list furnished to it as
provided in Section 6.01 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 Debt Securities of any
series or of all Debt Securities, and the corresponding rights and duties of the
Trustee, shall be as provided by the Trust Indenture Act of 1939.
(c) Every Holder of Debt 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 of 1939.
SECTION 6.03. Reports by the Company. The Company agrees to 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 of 1939 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 Securities Exchange Act of 1934, as amended, shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
SECTION 6.04. Reports by the 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 of 1939 at
the times and in the manner provided pursuant thereto. The interval between
transmissions of reports to be transmitted at intervals shall be twelve months
or such shorter time required by the Trust Indenture Act of 1939. If the Trust
Indenture Act of 1939 does not specify the date on which a report is due, the
such report shall be due on May 15 of each year following the first issuance of
Debt Securities.
(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 Debt
Securities of any series are listed, with the Commission and with the Company.
The Company will notify the Trustee when the Debt Securities of any series are
listed on any stock exchange.
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ARTICLE SEVEN.
REMEDIES OF THE TRUSTEE AND HOLDERS
ON EVENT OF DEFAULT.
SECTION 7.01. Events of Default. Event of Default, with respect to
any series of Debt Securities, wherever used herein, 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), unless such event is either
inapplicable to a particular series or it is specifically deleted or modified in
the supplemental indenture under which such series of Debt Securities is issued
or in the form of Debt Security for such series:
(a) default in the payment of any installment of interest upon
any Debt Security of such series as and when the same shall become due
and payable, and continuance of such default for a period of 30 days;
or
(b) default in the payment of the principal of and premium, if
any, on any Debt Security of such series as and when the same shall
become due and payable either at maturity, upon redemption, by
declaration of acceleration or otherwise; or
(c) default in the payment or satisfaction of any sinking fund
payment or analogous obligation, if any, with respect to the Debt
Securities of such series as and when the same shall become due and
payable by the terms of the Debt Securities of such series; or
(d) failure on the part of the Company duly to observe or perform
any of the covenants, warrants or agreements on the part of the
Company in respect of the Debt Securities of such series in this
Indenture (other than a covenant, warranty or agreement a default in
whose performance or whose breach is elsewhere in this Section
specifically dealt with) continued for a period of 75 days after the
date on which written notice of such failure, specifying such failure
and requiring the same to be remedied, shall have been given to the
Company by the Trustee, by registered mail, or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount
of the Outstanding Debt Securities of such series; or
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(e) an event of default with respect to any other series of Debt
Securities issued or hereafter issued pursuant to this Indenture or if
default shall be made (and shall not have been cured or waived) in the
payment of principal of or interest on any other obligation for
borrowed money of the Company beyond any period of grace with respect
thereto if (i) the aggregate principal amount (or, in the case of
Original Issue Discount Debt Securities, such portion of the principal
amount as may be specified in the terms of such indebtedness as due
and payable upon acceleration) of any such obligation in respect of
which principal or interest is and remains in default is in excess of
$50,000,000 and (ii) the default in such payment is not being
contested by the Company in good faith and by appropriate proceedings;
provided, however, that subject to the provisions of Section 7.08 and
Section 8.01 the Trustee shall not be charged with knowledge of any
such default unless written notice thereof shall have been given to
the Trustee by the Company, by the holders or an agent of the holders
of any such indebtedness, by the trustee then acting under any
indenture or other instrument under which such default shall have
occurred, or by the Holders of not less than 25% in aggregate
principal amount of such series of Debt Securities at the time
Outstanding; or
(f) a decree or order by a court having jurisdiction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization of the Company under the Federal bankruptcy laws or any
other similar applicable Federal or state law, and such decree or
order shall have continued undischarged and unstayed for a period of
60 days; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or
assignee or other similar official in bankruptcy or insolvency of the
Company or of all or substantially all of its property, or for the
winding up or liquidation of its affairs, shall have been entered, and
such decree or order shall have continued undischarged and unstayed
for a period of 60 days; or
(g) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking an arrangement or a reorganization under the Federal
bankruptcy laws or any other similar applicable Federal or state law,
or shall consent to the filing of any such petition, or shall consent
to the appointment of a receiver or liquidator or trustee or assignee
or other similar official in bankruptcy or insolvency of it or of all
or
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substantially all of its property, or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay
its debts generally as they become due; or
(h) any other Event of Default provided in the supplemental
indenture under which such series of Debt Securities is issued or in
the form of Debt Security for such series;
then and in each and every such case, so long as such Event of Default with
respect to any series of Debt Securities for which there are Debt Securities
Outstanding occurs and is continuing and shall not have been remedied or waived
to the extent permitted by the terms of this Indenture, unless the principal of
all of the Debt Securities of such 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 Outstanding Debt Securities of such series, by notice in
writing to the Company (and to the Trustee if given by Holders), may declare the
principal (or, if the Debt Securities of that series are Original Issue Discount
Debt Securities, such portion of the principal amount as may be specified in the
terms of that series) of all the Debt Securities of such series and the interest
accrued thereon to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in this
Indenture or in the Debt Securities of such series contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if,
at any time after the principal of the Debt Securities of such series shall have
been so declared due and payable, and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay in the currency in which the Debt Securities of such series
are payable all matured installments of interest upon all of the Debt Securities
and the principal of and premium, if any, on any and all Debt Securities of such
series which shall have become due otherwise than by such declaration (with
interest on overdue installments of interest to the extent that payment of such
interest is enforceable under applicable law and on such principal and premium,
if any, at the rate borne by the Debt Securities of such series or as otherwise
provided in the form of Debt Security for such series, to the date of such
payment or deposit) and the expenses of the Trustee (subject to Section 8.06),
and any and all defaults under this Indenture, other than the nonpayment of
principal of and accrued interest on Debt Securities of such series which shall
have become due by such declaration, shall have been cured or shall have been
waived in accordance with Section 7.07 or provision deemed by the Trustee to be
adequate shall have been made therefor - then and in every such case the Holders
of at least a majority in aggregate principal amount of the Debt Securities of
such series then Outstanding, by written notice to the Company and to the
Trustee, may rescind and annul such declaration and its consequences; but no
such rescission and annulment shall extend to or shall affect any subsequent
default, or shall impair any right consequent thereon.
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In case the Trustee or any Holders shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company, the Trustee and the Holders shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the Company, the Trustee and the Holders shall continue as though no such
proceeding had been taken.
SECTION 7.02. Payment of Debt Securities Upon Default; Suit Therefor.
The Company covenants that (a) in case default shall be made in the payment of
any instalment of interest upon any Debt Security of any series as and when the
same shall become due and payable, and such default shall have continued for a
period of 30 days, or (b) in case default shall be made in the payment of the
principal of and premium, if any, on any Debt Security of any series as and when
the same shall have become due and payable, whether at maturity of the Debt
Security or upon redemption or by declaration or otherwise or (c) in case
default shall be made in the making or satisfaction of any sinking fund payment
or analogous obligation with respect to the Debt Securities of any series when
the same becomes due by the terms of the Debt Securities of any series--then,
upon demand of the Trustee, the Company will pay to the Trustee, for the benefit
of the Holders (or Holders of Debt Securities of any such series in the case of
clause (c) above), the whole amount that then shall have become due and payable
on any such Debt Security (or Debt Securities of any such series in the case of
clause (3) above) for principal and premium, if any, or interest, or both, as
the case may be, with interest upon the overdue principal and premium, if any,
and (to the extent that payment of such interest is enforceable under applicable
law) upon the overdue installments of interest at the rate borne by the Debt
Securities of such series or as otherwise provided in the form of Debt Security
of such series; and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any expenses
or liabilities incurred and advances made by the Trustee, except compensation or
advances arising, or expenses or liabilities incurred, as a result of the
Trustee's negligence or bad faith.
Until such demand is made by the Trustee, the Company may pay the
principal of and premium, if any, and interest on the Debt Securities of any
series to the Persons entitled thereto, whether or not the principal of and
premium, if any, and interest on the Debt Securities of such series are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on such Debt
Securities and collect, in the manner provided
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by law out of the property of the Company or any other obligor on such Debt
Securities wherever situated, the moneys adjudged or decreed to be payable. If
any Event of Default with respect to any series of Debt Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Debt 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.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Debt Securities of
any series under the Federal bankruptcy laws or any other applicable law, or in
case a receiver or trustee shall have been appointed for the property of the
Company or such other obligor, or in the case of any other similar judicial
proceedings relative to the Company or other obligor upon the Debt Securities of
any series, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Debt
Securities of such series shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 7.02, shall be
entitled and empowered by intervention in such proceedings or otherwise, (a) to
file and prove a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Debt Securities of such series, and, in case
of any judicial proceedings, to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and of the Holders of the Debt Securities of such series allowed in such
judicial proceedings relative to the Company or any other obligor on such Debt
Securities, its or their creditors, or its or their property, (b) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of any Debt Securities of any series in any election of a trustee or a standby
trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in comparable
proceedings, and (c) to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute the same after the
deduction of its charges and expenses; and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of the Holders of the
Debt Securities of such series to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to
such Holders, to pay to the Trustee such amount as shall be sufficient to cover
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other expenses and liabilities incurred and advances made by the Trustee
except compensation or advances arising, or expenses or liabilities incurred, as
a result of the Trustee's negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept, or adopt on behalf of any Holder any plan or
reorganization, arrangement, adjustment or composition affecting the Debt
Securities or the
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rights of any Holder thereof, or to authorize the Trustee to vote in respect of
the claim of any Holder (except, as aforesaid, for the election of a trustee in
bankruptcy or other Person performing similar functions) in any such proceeding.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities of any series, may be enforced by the Trustee
without the possession of any of such Debt Securities, or the production thereof
on any trial or other proceeding relative thereto, and any such suit or
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment shall be for the ratable
benefit of the Holders of the Debt Securities of such series in respect of which
such judgment has been recovered.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
Holders of the Debt Securities in respect to which such action was taken, and it
shall not be necessary to make any Holders of such Debt Securities parties to
any such proceedings.
SECTION 7.03. Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 7.02 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the Debt Securities of such series, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
FIRST: To the payment of costs and expenses of
collection and reasonable compensation to the Trustee, its
agents, attorneys and counsel, and of all other expenses and
liabilities incurred, and all advances made, by the Trustee
except compensation or advances arising, or expenses or
liabilities incurred, as a result of its negligence or bad
faith, and any other amounts owing the Trustee under Section
8.06;
SECOND: To the payment of the amounts then due and
unpaid to the holders of Senior Indebtedness, to the extent
required by Article Sixteen;
THIRD: In case the principal of the Debt Securities of
such series shall not have become due and be unpaid, to the
payment of interest on such Debt Securities, in the order of
the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected
by the Trustee) upon the overdue installments of interest at
the rate borne by such Debt Securities, such payments to be
made ratable to the Persons entitled thereto;
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FOURTH: In case the principal of the Debt Securities of such
series shall have become due, by declaration or otherwise, to the
payment of the whole amount then owing and unpaid upon such Debt
Securities for principal and premium, if any, and interest, with
interest on the overdue principal and premium, if any, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the rate borne by such Debt
Securities; and in case such moneys shall be insufficient to pay in
full the whole amounts so due and unpaid upon such Debt Securities,
then, to the payment of such principal and premium, if any, and
interest without preference or priority of principal and premium, if
any, over interest, or of interest over principal and premium, if any,
or of any instalment of interest over any other instalment of
interest, or of any Debt Security of such series over any other such
Debt Security, ratably to the aggregate of such principal and premium,
if any, and accrued and unpaid interest;
FIFTH: To the payment of any surplus then remaining to the
Company, its successors or assigns, or to whomsoever may be lawfully
entitled to receive the same.
SECTION 7.04. Proceedings by Holders. No Holder of any Debt Security
of any series shall have any right by virtue of or by availing of any provision
of this Indenture to institute any suit, action or proceeding in equity or at
law or in bankruptcy or otherwise upon or under or with respect to this
Indenture or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Debt Securities of such series then Outstanding shall
have made written request upon the Trustee to institute such action, suit or
proceeding in its own name as Trustee hereunder and shall have offered to the
Trustee such reasonable indemnity as it may require against the costs, expenses
and liabilities to be incurred therein or thereby, and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity, shall have
neglected or refused to institute any such action, suit or proceeding (and no
direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 7.07), it being understood and intended, and being
expressly covenanted by the taker and Holder of every Debt Security of every
series with every other taker and Holder and the Trustee, that no one or more
Holders of Debt Securities 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 Holder of such Debt Securities, or to obtain
or seek to obtain priority over or preference to any other such Holder, or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all Holders of Debt Securities.
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SECTION 7.05. Proceedings by Trustee. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 7.06. Remedies Cumulative and Continuing. All powers and
remedies given by this Article Seven to the Trustee or to the Holders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Holders, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and no
delay or omission of the Trustee or of any Holder to exercise any right or power
accruing upon any default occurring and continuing as aforesaid shall impair any
such right or power, or shall be construed to be a waiver of any such default or
an acquiescence therein; and, subject to the provisions of Section 7.04, every
power and remedy given by this Article Seven or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders.
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Holders. The Holders of a majority in aggregate principal amount of
the Outstanding Debt 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 Debt Securities by this Indenture; provided, however, that
(subject to the provisions of Section 8.01) the Trustee shall have the right to
decline to follow any such direction if the Trustee shall determine upon advice
of counsel that the action or proceeding so directed may not lawfully be taken
or would be materially and unjustly prejudicial to the rights of Holders not
joining in such direction or if the Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee of directors or
trustees and/or Responsible Officers shall determine that the action or
proceeding so directed would involve the Trustee in personal liability or if the
Trustee in good faith shall so determine that the actions or forebearances
specified in or pursuant to such direction would be unduly prejudicial to the
interests of Holders of the Debt Securities of all series not joining in the
giving of said direction, it being understood that (subject to Section 8.01) the
Trustee shall have no duty to ascertain whether or not such actions or
forebearances are duly prejudicial to such Holders. The Trustee may take any
other action deemed proper by the Trustee not inconsistent with such direction.
The Holders of a majority in aggregate principal amount of the Outstanding Debt
Securities of any series may on behalf of the Holders of all the Debt Securities
of such series waive any past default or Event of Default hereunder and its
consequences except a default in the
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payment of principal of or premium, if any, or interest on such Debt Securities,
or a default in the making of any sinking fund payment with respect to such Debt
Securities. Upon any such waiver the Company, the Trustee and the Holders of
such Debt Securities shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Whenever any default or Event of Default shall have been waived as permitted by
this Section 7.07, said default or Event of Default shall for all purposes of
the Debt Securities and this Indenture be deemed to have been cured and to be
not continuing.
This Section 7.07 shall be in lieu of Sections 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act of 1939 and such Sections 316(a)(1)(A)
and Section 316(a)(1)(B) are hereby expressly excluded from this Indenture, as
permitted by the Trust Indenture Act of 1939.
SECTION 7.08. Notice of Defaults. The Trustee shall give the Holders
notice of any default hereunder as and to the extent provided by the Trust
Indenture Act of 1939; provided, however, that in the case of any default of the
character specified in Section 7.07(d), no such notice to Holders shall be given
until at least 60 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.
SECTION 7.09. Undertaking to Pay Costs. 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, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of such suit, and may assess costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act of 1939; provided
that neither this Section nor the Trust Indenture Act of 1939 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, and any provision of the Trust Indenture
Act of 1939 to such effect is hereby expressly excluded from this Indenture, as
permitted by the Trust Indenture Act of 1939.
SECTION 7.10. Unconditional Right of Holders to Receive Principal,
Premium and Interest. Notwithstanding any other provision in this Indenture,
the Holder of any Debt Security shall have the rights, which are absolute and
unconditional, to receive payment of the principal of, premium, if any, and
(subject to Section 3.08) interest on such Debt Security on the respective
Stated Maturities expressed in such Debt Security (or in the case of redemption
or repayment, on the date for redemption or repayment, as the case may be) and
to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
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ARTICLE EIGHT.
CONCERNING THE TRUSTEE.
SECTION 8.01. Duties and Responsibilities of Trustee. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act
of 1939. Notwithstanding the foregoing, no implied covenants or obligations,
except as provided by the Trust Indenture Act of 1939, shall be read into this
Indenture against the Trustee, and 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 8.02. Reliance on Documents, Opinions, etc. Subject to the
provisions of Section 8.01,
(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, consent, order, bond,
debenture, note or other paper document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless otherwise evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors
may be evidenced to the Trustee by a copy thereof certified by the
Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or omitted
by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, pursuant to the provisions
of this Indenture, unless such Holders shall have offered to the
Trustee
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reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default with respect
to the Debt Securities of any series and after the curing or waiving
of all Events of Default with respect to such Debt Securities, 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, consent, order, approval, bond,
debenture, note, or other paper or document, unless requested in
writing to do so by the Holders of not less than a majority in
principal amount of such Debt Securities then Outstanding; provided,
however, that the reasonable expenses of every such investigation
shall be paid by the Company or, if paid by the Trustee, shall be
repaid by the Company upon demand; and provided, further, that if the
payment within a reasonable time to the Trustee of the costs, expenses
or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against
such expenses or liabilities as a condition to so proceeding;
(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 liable or
responsible for any misconduct, bad faith or negligence on the part of
any agent or attorney appointed with due care by it hereunder; and
(h) the Trustee shall not be deemed to have knowledge of any
default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or Holders of greater than 50% of
the outstanding principal amount of Debt Securities of any series
shall have notified the Trustee thereof.
SECTION 8.03. No Responsibility for Recitals, etc. The recitals
contained herein and in the Debt Securities (except in the Trustee's certificate
of authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Debt Securities of any series. The
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Trustee represents that it is duly authorized to execute and deliver this
Indenture and perform its obligations hereunder. Neither the Trustee nor the
Authenticating Agent shall be accountable for the use or application by the
Company or any Debt Securities or the proceeds of any Debt Securities
authenticated and delivered by the Trustee in conformity with the provisions of
this Indenture.
SECTION 8.04. Trustee and Agents May Own Debt Securities. The
Trustee, any paying agent, or any agent of the Trustee or the Company under this
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Debt Securities of any series with the same rights it would have if
it were not Trustee or such agent and, subject to Sections 8.08 and 8.13, if
operative, may otherwise deal with the Company and receive, collect, hold, and
retain collections from the Company with the same rights it would have if it
were not the Trustee or such agent.
SECTION 8.05. Moneys to be Held in Trust. Subject to the provisions
of Section 13.04, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by law. Neither the Trustee nor any paying agent shall be under any
liability for interest on any moneys received by it hereunder except such as it
may agree with the Company to pay thereon. So long as no Event of Default with
respect to the Debt Securities of any series shall have occurred and be
continuing, all interest allowed on any such moneys shall be paid from time to
time upon the written order of the Company, signed by its President, its Chief
Financial Officer, any Vice President, its Treasurer or an Assistant Treasurer.
SECTION 8.06. Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and all persons not regularly in its employ and any amounts paid by the Trustee
to any Authenticating Agent pursuant to Section 8.14) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, or the performance of its duties
hereunder, including the current payment of all costs and expenses of defending
itself against any claim of liability in the premises. The obligations of the
Company under this Section 8.06 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Debt Securities
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upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Debt
Securities.
SECTION 8.07. Officers' Certificate as Evidence. Subject to the
provisions of Section 8.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such Certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 8.08. Conflicting Interest of Trustee. If the Trustee has or
shall acquire any conflicting interest within the meaning of the Trust Indenture
Act of 1939, the Trustee shall either eliminate such conflicting interest or
resign in the manner provided by, and subject to the provisions of, the Trust
Indenture Act of 1939 and this Indenture.
SECTION 8.09. Eligibility of Trustee. There shall at all times be a
Trustee with respect to each series of Debt Securities hereunder which shall be
a corporation organized and doing business under the laws of the United States
or any state or territory thereof or of the District of Columbia authorized
under such laws to exercise corporate trust power's, having a combined capital
and surplus of at least $5,000,000, subject to supervision or examination by
Federal, state, territorial, or District of Columbia authority and having its
principal office and place of business in Wilmington, Delaware, if there be such
a corporation having its principal office and place of business in said City and
willing to act as Trustee hereunder. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.09, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee with respect
to any series of Debt Securities shall cease to be eligible in accordance with
the provisions of this Section 8.09, such Trustee shall resign immediately in
the manner and with the effect specified in Section 8.10.
SECTION 8.10. Resignation or Removal of Trustee. (a) The Trustee may
at any time resign with respect to any series of Debt Securities by giving
written notice by first class mail of such resignation to the Company and to the
Holders of such series of Debt Securities at their addresses as they shall
appear on the Debt Security Register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee with respect
to such series by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee with respect to such series
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shall have been so appointed and have accepted appointment within 60 days after
the mailing of such notice of resignation to the Holders, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Holder of such series of Debt Securities who has been
a bona fide Holder of a Debt Security or Debt Securities of such series for at
least six months may, subject to the provisions of Section 7.09, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee with respect to such series. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint such successor trustee.
(b) In case at any time any of the following shall occur--
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 8.08 after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Debt
Security or Debt Securities of such series for at least six months,
unless the Trustee's duty to resign is stayed in accordance with the
provisions of Section 310(b) of the Trust Indenture Act of 1939, or
(2) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.09 and shall fail to resign after written
request therefor by the Company or by any such Holder of a note of
such series, or
(3) the Trustee shall become incapable of acting with respect to
any series of Debt Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee with respect to such
series and appoint a successor trustee for such series by written instrument, in
duplicate, executed on instruction of the President, The Chief Financial Officer
or the Treasurer of the Company, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 7.09, any Holder who has been a bona fide Holder of a
Debt Security or Debt Securities 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 removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove such Trustee
and appoint such successor trustee.
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(c) The Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may at any time remove the Trustee
with respect to such series by delivering to the Trustee so removed, to the
successor trustee so appointed and to the Company the evidence provided for in
Section 9.01 of the action in that regard taken by the Holders, and nominate a
successor Trustee which shall be deemed appointed as successor Trustee unless
within ten days after such nomination the Company objects thereto, in which case
the Trustee so removed or any Holder of a Debt Security or Debt Securities of
such series, upon the terms and conditions and otherwise as in subsection (a) of
this Section 8.10 provided, may petition any court of competent jurisdiction for
an appointment of a successor Trustee with respect to such series.
(d) Any resignation or removal of the Trustee with respect to all or
any series of Debt Securities and any appointment of a successor Trustee
pursuant to any of the provisions of this Section 8.10 shall become effective
upon acceptance of appointment by the successor Trustee as provided in Section
8.11.
SECTION 8.11. Acceptance by Successor Trustee. Any successor Trustee
appointed as provided in Section 8.10 shall execute, acknowledge and deliver to
the Company and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective with respect to all or any series as
to which it is resigning as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder with respect to all
or any such series, with like effect as if originally named as Trustee herein
with respect to all or any such series; nevertheless, on the written request of
the Company or of the successor Trustee, the Trustee ceasing to act shall, upon
payment of any amounts then due it pursuant to the provisions of Section 8.06,
execute and deliver an instrument transferring to such successor Trustee all the
rights and powers of the Trustee with respect to all or any such series so
ceasing to act. Upon request of any such successor Trustee, the Company shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor Trustee all such rights and powers. Any
Trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such Trustee with respect to all or any series as to
which it is resigning as Trustee, to secure any amounts and shall be entitled to
any indemnities then due it pursuant to the provisions of Section 8.06.
No successor Trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor Trustee shall
be qualified under the provisions of Section 8.08 and eligible under the
provisions of Section 8.09.
Upon acceptance of appointment by a successor Trustee with respect to
all or any series of Debt Securities as provided in this Section 8.11, the
Company shall mail notice of the succession of such Trustee hereunder to the
Holders of Debt Securities of such series at their addresses as they shall
appear on the Debt Security Register. If the Company
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fails to mail such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Company.
In case the appointment hereunder of a successor Trustee with respect
to the Debt Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Debt Securities
of any applicable series shall execute and deliver an indenture supplemental
hereto which 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 Debt Securities of any series as to which
the retiring Trustee is not retiring shall continue to be vested in the retiring
Trustee, and 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.
SECTION 8.12. Succession by Merger, etc. Subject to Sections 8.08
and 8.09, 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 the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
In case at the time any successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Debt Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such Debt
Securities so authenticated; and in case at that time any of the Debt Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Debt Securities either in the name of such successor Trustee or, if such
successor Trustee is a successor by merger, conversion or consolidation, the
name of any predecessor hereunder; and in all such cases such certificate shall
have the full force which it is anywhere in the Debt Securities or in this
Indenture provided that the certificate of the Trustee shall have.
SECTION 8.13. Limitation on Rights of Trustee as a Creditor. 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 of 1939 regarding the collection of claims against the
Company (or any such other obligor).
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SECTION 8.14. Authenticating Agents. There may be an Authenticating
Agent or Authenticating Agents appointed by the Trustee from time to time with
power to act on its behalf and subject to its direction in the authentication
and delivery of any series of Debt Securities issued upon original issuance,
exchange, transfer or redemption thereof as fully to all intents and purposes as
though such Authenticating Agent (or Authenticating Agents) had been expressly
authorized to authenticate and deliver such Debt Securities, and Debt Securities
so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as though authenticated by the Trustee
hereunder. For all purposes of this Indenture, the authentication and delivery
of Debt Securities by any Authenticating Agent pursuant to this Section 8.14
shall be deemed to be the authentication and delivery of such Debt Securities
"by the Trustee", and whenever this Indenture provides that "the Trustee shall
authenticate and deliver" Debt Securities or that Debt Securities "shall have
been authenticated and delivered by the Trustee", such authentication and
delivery by any Authenticating Agent shall be deemed to be authentication and
delivery by the Trustee. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States of
America or of any State or Territory or the District of Columbia, with a
combined capital and surplus of at least $5,000,000 and authorized under such
laws to act as an authenticating agent, duly registered to act as such, if and
to the extent required by applicable law and subject to supervision or
examination by Federal or State authority. If such corporation publishes
reports of its condition at least annually pursuant to law or the requirements
of such authority, then for the purposes of this Section 8.14 the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 8.14, or to be duly registered if
and to the extent required by applicable law and regulations, it shall resign
immediately in the manner and with the effect herein specified in this Section
8.14.
Whenever reference is made in this Indenture to the authentication and
delivery of Debt Securities of any series 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 its Authenticating Agent
appointed with respect to the Debt Securities of such series and a certificate
of authentication executed on behalf of the Trustee by its Authenticating Agent
appointed with respect to the Debt Securities of such series.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the authenticating agency
business of any Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is otherwise
eligible under this Section 8.14, without the execution or filing of any paper
or any further act on the part of the parties hereto or such Authenticating
Agent or such successor corporation.
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In case at the time such successor to any such agency shall succeed to
such agency any of the Debt Securities shall have been authenticated but not
delivered, any such successor to such Authenticating Agent may adopt the
certificate of authentication of any predecessor Authenticating Agent and
deliver such Debt Securities so authenticated; and in case at that time any of
the Debt Securities shall not have been authenticated, any successor to any
Authenticating Agent may authenticate such Debt Securities either in the name of
any predecessor hereunder or in the name of the successor Authenticating Agent;
and in all cases such certificate shall have the full force which it has
anywhere in the Debt Securities or in this Indenture provided that the
certificate of the predecessor Authenticating Agent shall have had such force;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Authenticating Agent or to authenticate Debt Securities in the
name of any predecessor Authenticating Agent shall apply only to its successor
or successors by merger, conversion or consolidation.
Any Authenticating Agent may at any time resign as Authenticating
Agent with respect to any series of Debt Securities by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to any series of
Debt Securities by giving written notice of termination to such Authenticating
Agent and to the Company. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time Authenticating Agent shall cease to
be eligible under this Section 8.14, the Trustee may, and shall, upon request of
the Company, promptly use its best efforts to appoint a successor Authenticating
Agent.
Upon the appointment, at any time after the original issuance of any
of the Debt Securities, of any successor, additional or new Authenticating
Agent, the Trustee shall give written notice of such appointment to the Company
and shall at the expense of the Company mail notice of such appointment to all
Holders of Debt Securities of such series as the names and addresses of such
Holders appear on the Debt Security Register.
Any successor Authenticating Agent with respect to any series of Debt
Securities upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like effect
as though originally named as an Authenticating Agent herein with respect to
such series. No successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section 8.14 and duly registered if and to
the extent required under applicable law and regulations.
Any Authenticating Agent by the acceptance of its appointment with
respect to any series of Debt Securities shall be deemed to have agreed with the
Trustee that: it will perform and carry out the duties of an Authenticating
Agent as herein set forth with respect to such series, including among other
things the duties to authenticate and deliver Debt Securities when presented to
it in connection with exchanges, registrations of transfer or redemptions
thereof; it will keep and maintain, and furnish to the Trustee from time to time
as requested by the Trustee appropriate records of all transactions carried out
by it as
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Authenticating Agent and will furnish the Trustee such other information and
reports as the Trustee may reasonably require; it is eligible for appointment as
Authenticating Agent under this Section 8.14 and will notify the Trustee
promptly if it shall cease to be so qualified; and it will indemnify the Trustee
against any loss, liability or expense incurred by the Trustee and will defend
any claim asserted against the Trustee by reason of any acts or failures to act
of the Authenticating Agent with respect to such series but it shall have no
liability for any action taken by it at the specific written direction of the
Trustee.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation and expenses for its services, and the Trustee
shall have no liability for such payments.
The provisions of Sections 8.02(a), (b), (c), (e) and (f), 8.03, 8.04,
8.06 (insofar as it pertains to indemnification), 9.01, 9.02 and 9.03 shall bind
and inure to the benefit of each Authenticating Agent to the same extent that
they bind and inure to the benefit of the Trustee.
If an appointment with respect to one or more series is made pursuant
to this Section 8.14, the Debt Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Debt Securities of the series designated herein
issued under the within-mentioned Indenture.
CHASE MANHATTAN BANK CHASE MANHATTAN BANK
DELAWARE DELAWARE
As Trustee As Trustee
- OR -
By: By: The Chase Manhattan Bank
---------------------- As Authenticating Agent
Authorized Officer
By:
----------------------------
Authorized Signatory
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ARTICLE NINE.
CONCERNING THE HOLDERS.
SECTION 9.01. Action by Holders. Whenever in this Indenture it is
provided that the Holders of a specified percentage in aggregate principal
amount of the Debt Securities of any series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action) the fact that at the time of taking any such
action the Holders of such specified percentage of such series have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Holders of such series in person or by agent or proxy
appointed in writing, or (b) by the record of the Holders of such series voting
in favor thereof at any meeting of such Holders duly called and held in
accordance with the provisions of Article Ten, or (c) by a combination of such
instrument or instruments and any such record of such a meeting of Holders of
such series.
SECTION 9.02. Proof of Execution by Holders. Subject to the
provisions of Sections 8.01, 8.02 and 10.05, proof of the execution of any
instrument by a Holder or his agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
ownership of Debt Securities shall be provided by the Debt Security Register or
by a certificate of the Debt Security registrar with respect to a series of Debt
Securities.
The record of any Holders' meeting shall be proved in the manner
provided in Section 10.06.
SECTION 9.03. Who Are Deemed Absolute Owners. The Company, the
Trustee with respect to a series of Debt Securities, and any agent of the
Trustee or the Company under this Indenture may deem the Person in whose name
such Debt Security shall be registered upon the Debt Security Register to be,
and may treat him as, the absolute owner of such Debt Security (whether or not
such Debt Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by anyone other than the Company, the
Trustee or any such agent) for the purpose of receiving payment of or on account
of the principal of and premium, if any, and interest on such Debt Security and
for all other purposes; and neither the Company nor the Trustee nor any such
agent shall be affected by any notice to the contrary. All such payments so
made to any Holder for the time being or upon his order shall, to the extent of
the sum or sums so paid, be effectual to satisfy and discharge the liability for
moneys payable upon any such Debt Security.
SECTION 9.04. Company-Owned Debt Securities Disregarded. In
determining whether the Holders of the requisite aggregate principal amount of
Debt Securities of any series have concurred in any direction or consent under
this Indenture, Debt
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Securities of such series which are owned by the Company or any other obligor on
the Debt Securities of such series or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any other obligor on such Debt Securities shall be disregarded and
deemed not to be Outstanding for the propose of any such determinations;
provided, however, that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction or consent only such Debt
Securities which the Trustee knows are so owned shall be so disregarded. Debt
Securities so owned which have been pledged in good faith may be regarded as
Outstanding notwithstanding this Section 9.04 if the pledgee shall establish to
the satisfaction of the Trustee the right of the pledgee to vote such Debt
Securities and that the pledgee is not a Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or any such other obligor. Upon request of the Trustee, the Company
shall furnish to the Trustee promptly an Officer's Certificate listing and
identifying all Debt Securities of a series, if any, known by the Company to be
owned or held by or for the account of the Company or any other obligor on such
Debt Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or any
other obligor on such Debt Securities; and, subject to the provisions of Section
8.01, the Trustee shall be entitled to accept such Officers' Certificates as
conclusive evidence of the facts therein set forth and of the fact that all such
Debt Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 9.05. Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 9.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action, any Holder of a Debt Security
which is shown by the evidence to be included in the Debt Securities the Holders
of which have consented to or are bound by consents to such action, may, by
filing written notice with the Trustee at its principal office and upon proof of
holding as provided in Section 9.02, revoke such action so far as concerns such
Debt Security. Except as aforesaid any such action taken by the Holder of any
Debt Security shall be conclusive and binding upon such Holder and upon all
future Holders and owners of such Debt Security and of any Debt Security issued
on transfer thereof or in exchange or substitution therefor, irrespective of
whether or not any notation in regard thereto is made upon any such Debt
Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Debt Securities specified in this Indenture in
connection with such action shall be conclusively binding upon the Company, the
Trustee and the Holders of all of the Debt Securities affected by such action.
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ARTICLE TEN.
HOLDERS' MEETINGS.
SECTION 10.01. Purposes of Meetings. A meeting of Holders of the
Debt Securities of all or any series may be called at any time and from time to
time pursuant to the provisions of this Article Ten for any of the following
purposes:
(1) to give any notice to the Company or to the Trustee with
respect to such series, or to give any directions to the Trustee, or
to consent to the waiving of any default hereunder and its
consequences, or to take any other action authorized to be taken by
Holders pursuant to any of the provisions of Article Seven;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article Eight;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(4) to take any other action authorized to be taken by or on
behalf of the Holders of any specified aggregate principal amount of
the Debt Securities of all or any series, as the case may be, under
any other provision of this Indenture or under applicable law.
SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Holders of Debt Securities of all or any series to take
any action specified in Section 10.01, to be held at such time and at such place
as the Trustee shall determine. Notice of every meeting of the Holders of Debt
Securities of all or any series, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be mailed by the Trustee to Holders of Debt Securities of each series that
may be affected by the action proposed to be taken at such meeting at their
addresses as they shall appear on the Debt Security Register. Such notice shall
be mailed not less than 20 nor more than 90 days prior to the date fixed for the
meeting.
SECTION 10.03. Call of Meetings by Company or Holders. In case at
any time the Company, pursuant to a resolution by the Board of Directors, or the
Holders of at least 10% in aggregate principal amount of the Debt Securities
then Outstanding of each series that may be affected by the action proposed to
be taken shall have requested the Trustee to call a meeting of such Holders, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within 20 days after receipt of such request, then the Company or such
Holders may determine the time and place for such meeting and may call such
meeting
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to take any action authorized in Section 10.01, by mailing notice thereof as
provided in Section 10.02.
SECTION 10.04. Qualifications for Voting. To be entitled to vote at
any meeting of Holders of Debt Securities a person shall (a) be a Holder of one
or more Debt Securities of a series affected by the action proposed to be taken
or (b) be a Person appointed by an instrument in writing as proxy by a Holder of
one or more such Debt Securities. The rights of Holders of Debt Securities to
have their votes counted shall be subject to the provision in the definition of
"Outstanding" in Section 1.01. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Debt Securities shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 10.05. Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Debt Securities, in regard to proof of
the holding of Debt Securities and of the appointment of proxies, and in regard
to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit. Except as otherwise permitted or required by any such regulation, the
holding of Debt Securities shall be proved in the manner specified in Section
9.02 and the appointment of any proxy shall be proved in the manner specified in
said Section 9.02 or by having the signature of the Person executing the proxy
witnessed or guaranteed by any bank, broker or trust company.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Debt Securities as provided in Section 10.03, in which
case the Company or the Holders of Debt Securities as provided in Section 10.03,
in which case the Company or the Holders of Debt Securities calling the meeting,
as the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a secretary of the meeting shall be elected by vote of
the Holders of a majority in aggregate principal amount of the Debt Securities
represented at the meeting and entitled to vote.
Subject to the provisions of Section 9.04, at any meeting each Holder
of a Debt Security of a series entitled to vote at such meeting or proxy shall
be entitled to one vote for each $1,000 principal amount of Debt Securities of
such series held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Debt Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote except as a Holder of Debt
Securities of such series or proxy therefor. Any meeting of Holders of Debt
Securities duly called pursuant to the provisions of Section 10.02 or 10.03
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may be adjourned from time to time and the meeting may be held as so adjourned
without further notice.
At any meeting of Holders of Debt Securities, the presence of Persons
holding or representing Debt Securities in an aggregate principal amount
sufficient to take action upon the business for the transaction of which such
meeting was called shall be necessary to constitute a quorum; but, if less than
quorum be present, the Persons holding or representing a majority of the Debt
Securities represented at the meeting may adjourn such meeting with the same
effect, for all intents and purposes, as though a quorum had been present.
SECTION 10.06. Voting. The vote upon any resolution submitted to any
meeting of Holders of Debt Securities shall be by written ballots on which shall
be subscribed the signatures of the holders of Debt Securities entitled to vote
at such meeting or of their representatives by proxy, and the letter or letters,
serial number or numbers or other distinguishing marks of the Debt Securities
held or represented by him. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Holders of
Debt Securities shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was mailed as provided in Section 10.02. The record
shall be signed and verified by the affidavits of the permanent chairman and
secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.07. No Delay of Rights by Meeting. Nothing in this
Article Ten contained shall be deemed or construed to authorize or permit, by
reason of any call of a meeting of Holders of Debt Securities of any or all
series or any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights conferred
upon or reserved to the Trustee or to the Holders of Debt Securities under any
of the provisions of this Indenture or of the Debt Securities.
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ARTICLE ELEVEN.
SUPPLEMENTAL INDENTURES.
SECTION 11.01 Supplemental Indentures without Consent of Holders.
The Company, when authorized by a Board Resolution, and the Trustee may from
time to time and at any time enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of 1939
as in force at the date of the execution thereof) for one or more of the
following purposes:
(a) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Company pursuant to Articles Five and Twelve hereof;
(b) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as the Board of
Directors and the Trustee shall consider to be for the protection of
the Holders of Debt Securities of any or all series, and to make the
occurrence, or the occurrence and continuance, of a default in any of
such additional covenants, restrictions, conditions or provisions a
default or an Event of Default with respect to such series permitting
the enforcement of all or any of the several remedies provided in this
Indenture as herein set forth; provided, however, that in respect of
any such additional covenant, restriction or condition, such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed
in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may
be defective or inconsistent with any other provision contained herein
or in any supplemental indenture; to convey, transfer, assign,
mortgage or pledge any property to or with the Trustee; or to make
such other provisions in regard to matters or questions arising under
this Indenture as shall not adversely affect the interests of the
Holders of the Debt Securities;
(d) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to
one or more series of Debt Securities and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for
or
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facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to Section 8.11;
(e) to modify, amend or supplement this Indenture in such a
manner as to permit the qualification of any indenture supplemental
hereto under the Trust Indenture Act of 1939 as then in effect, except
that nothing herein contained shall permit or authorize the inclusion
in any indenture supplemental hereto of the provisions referred to in
Section 316(a)(2) of the Trust Indenture Act of 1939;
(f) to provide for the issuance under this Indenture of Debt
Securities in coupon form (including Debt Securities registrable as to
principal only) and to provide for exchangeability of such Debt
Securities with Debt Securities of the same series issued hereunder in
fully registered form and to make all appropriate changes for such
purpose;
(g) to change or eliminate any of the provisions of this
Indenture, provided, however, that any such change or elimination
shall become effective only when there is no Debt Security Outstanding
of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(h) to establish any additional form of Debt Security, as
permitted by Section 2.02, and to provide for the issuance of any
additional series of Debt Securities, as permitted by Section 3.01,
and to set forth the terms thereof.
The Trustee is hereby required to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 11.01 may be executed by the Company and the Trustee without the consent
of the Holders of any of the Debt Securities at the time Outstanding,
notwithstanding any of the provisions of Section 11.02.
SECTION 11.02. Supplemental Indentures with Consent of Holders. With
the consent (evidenced as provided in Section 9.01) of the Holders of greater
than 50% in aggregate principal amount of the Outstanding Debt Securities of
each series affected by
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such supplemental indenture (all such Holders voting as a single class), by act
of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may from time to time and at
any time 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 any supplemental indenture or of
modifying in any manner the rights of the Holders of the Debt Securities of each
series under this Indenture; provided, however, that no such supplemental
indenture shall (i) without the consent of the Holder of each Outstanding Debt
Security affected thereby, extend the fixed maturity of any Debt Security, or
reduce the rate or extend the time of payment of interest thereon, or reduce the
principal amount thereof or any premium thereon, or make the principal thereof
or interest or premium thereon payable in any coin or currency other than that
provided in the Debt Securities or (ii) without the consent of the Holders of
all of the Outstanding Debt Securities of each series affected reduce the
aforesaid percentage of Debt Securities, the Holders of which are required to
consent (a) to any such supplemental indenture, (b) to rescind and annul a
declaration that any Debt Securities are due and payable as a result of the
occurrence of an Event of Default, (c) to waive any past default under the
Indenture and its consequences and (d) to waive compliance with Sections 5.02
and 5.04 (other than 5.04(a)(1) and (2)) to 5.05, inclusive.
Upon the request of the Company, accompanied by a copy of a Board
Resolution certified by its Secretary or Assistant Secretary authorizing the
execution of any such supplemental indenture, and upon the filing with the
Trustee of evidence of the consent of Holders of Debt Securities as aforesaid,
the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Holders of Debt
Securities under this Section 11.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
SECTION 11.03. Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture pursuant to the provisions of this Article Eleven,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
of Debt Securities shall thereafter be determined, exercised and enforced
hereunder subject in all respects to such modifications and amendments and all
the terms and conditions of any such supplemental indenture shall be and be
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
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SECTION 11.04. Notation on Debt Securities. Debt Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Eleven may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company or the Trustee shall so determine, new Debt
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors to any modification of this Indenture
contained in any such supplemental indenture may be prepared and executed by the
Company, authenticated by the Trustee and delivered in exchange for the
Outstanding Debt Securities of such series.
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be
Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and
7.02, shall receive, and shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article Eleven and is authorized and permitted by this Indenture.
ARTICLE TWELVE.
CONSOLIDATION, MERGER, SALE AND CONVEYANCE.
SECTION 12.01. Company May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Debt Securities shall
prevent any consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance or
lease of all or substantially all of the property of the Company to any other
corporation (whether or not affiliated with the Company) authorized to acquire
and operate the same; provided, however, and the Company hereby covenants and
agrees, that any such consolidation, merger, sale, conveyance or lease shall be
upon the condition that (a) immediately after such consolidation, merger, sale,
conveyance or lease the corporation (whether the Company or such other
corporation) formed by or surviving any such consolidation or merger, or to
which such sale, conveyance or lease shall have been made, shall not be in
default in the performance or observance of any of the terms, covenants and
conditions of this Indenture to be kept or performed by the Company; (b) the
corporation (if other than the Company) formed by or surviving any such
consolidation or merger or to which such sale, conveyance or lease shall have
been made, shall be a corporation organized under the laws of the United States
of America or any state thereof; and (c) the due and punctual payment of the
principal of and premium, if any, and interest on all of the Debt Securities,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed or
observed by the Company, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the Corporation (if other than the
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Company) formed by such consolidation, or into which the Company shall have been
merged, or by the corporation which shall have acquired or leased such property.
SECTION 12.02. Successor Corporation to be Substituted. In case of
any such consolidation, merger, sale, conveyance or lease and upon the
assumption by the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and premium, if any, and interest on all of
the Debt Securities and the due and punctual performance and observance of all
of the covenants and conditions of this Indenture to performed or observed by
the Company, such successor corporation shall succeed to and be substituted for
the Company, with the same effect as if it had been named herein as the party of
the first part, and (except in the event of a conveyance by way of lease) the
predecessor corporation shall be relieved of any further obligation under this
Indenture and the Debt Securities. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of
Johnson Controls, Inc. any or all of the Debt Securities issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of the
Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any Debt
Securities which previously shall have been signed and delivered by the officers
of the Company to the Trustee for authentication, and any Debt Securities which
such successor corporation thereafter shall cause to be signed and delivered to
the Trustee for that purpose. All the Debt Securities of each series so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Debt Securities of such series theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Debt
Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or lease
such changes in phraseology and form (but not in substance) may be made in the
Debt Securities thereafter to be issued as may be appropriate.
SECTION 12.03. Opinion of Counsel to Be Given Trustee. The Trustee,
subject to Sections 8.01 and 8.02, shall 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 Twelve and that
all conditions precedent herein provided relating to such transactions have been
complied with.
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ARTICLE THIRTEEN.
SATISFACTION AND DISCHARGE OF INDENTURE.
SECTION 13.01. Satisfaction, Discharge and Defeasance of Debt
Securities of any Series. The Company shall be deemed to have paid and
discharged the entire indebtedness on all the Debt Securities of a series, the
provisions of this Indenture (except as to (x) the rights of Holders of Debt
Securities of such series to receive, from the money, in the currency required,
and Government Obligations deposited with the Trustee pursuant to Section 13.03
or the interest and principal received by the Trustee in respect of such
Government Obligations, payment of the principal of (and premium, if any) and
any installment of principal of (and premium, if any) or interest on such Debt
Securities on the Stated Maturities thereof or upon the Redemption Dates for
Debt Securities required to be redeemed pursuant to any mandatory sinking fund
or analogous provisions relating to Debt Securities of that series or pursuant
to any call for redemption relating to Debt Securities of that series, (y) the
Company's rights and obligations with respect to such Debt Securities under
Sections 3.06, 3.07, 13.03 and 13.04, 5.02, 5.04, 6.01, 8.06, 8.10, 8.11 and, to
the extent applicable to such series, Article Four, so long as the principal of
(and premium, if any) and interest on the Debt Securities of such series remain
unpaid and, thereafter, only the Company's rights and obligations under Sections
5.04, 8.06, 13.03 and 13.04, and (z) the rights, powers, trusts, duties and
immunities of the Trustee with respect to the Debt Securities of such series) as
it relates to such Debt Securities shall no longer be in effect, and the
Trustee, at the expense of the Company, shall, upon Company Request, execute
proper instruments acknowledging the same if:
(a) (1) all Debt Securities of such series therefore
authenticated and delivered (other than (i) Debt Securities which have
been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 3.07 and (ii) Debt 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 Sections 13.03 and 13.04)
have been delivered to the Trustee for cancellation;
(2) the Company has paid or caused to be paid in the currency
required all other sums payable under this Indenture in respect of the
Debt Securities of such series; and
(3) the Company has delivered to the Trustee an Officers'
Certificate, an Opinion of Counsel and a written opinion of
independent public accountants, each stating that all conditions
precedent herein provided for relating to the satisfaction of the
entire indebtedness of all
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Debt Securities of any such series and the discharge of the Indenture
as it relates to such Debt Securities have been complied with; or
(b) (1) all Debt Securities of such series not theretofore
delivered to the Trustee for cancellation (i) have become due and
payable, or (ii) will become due and payable at their Stated Maturity
within one year, or (iii) 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;
(2) the condition described in paragraph (1) of Section 13.02
has been satisfied; and
(3) the conditions described in paragraphs (a)(2) and (a)(3) of
this Section 13.01 have been satisfied; or
(c) (1) the conditions referred to in paragraphs (b)(2) and
(b)(3) of this Section 13.01 have been satisfied;
(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of the deposit referred to in paragraph (1) of
Section 13.02 or on the ninety-first day after the date of such
deposit; provided, however, that should that condition fail to be
satisfied on or before such ninety-first day, the Trustee shall
promptly, upon satisfactory receipt of evidence of such failure,
return such deposit to the Company;
(3) the Company has either (i) delivered to the Trustee an
opinion of counsel of a nationally-recognized independent tax counsel
to the effect that Holders of the Debt Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as
a result of such deposit and the satisfaction, discharge and
defeasance contemplated by this paragraph (c) of this Section 13.01
and will be subject to Federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred or (ii) the Company shall
have received from, or there shall have been published by, the United
States Internal Revenue Service a ruling to the effect stated in (i)
of this Section 13.01(c)(3); and
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(4) the Company has received an Opinion of Counsel to the effect
that the satisfaction, discharge and defeasance contemplated by this
Section 13.01 will not result in the delisting of the Debt Securities
of that series from any nationally-recognized securities exchange on
which they are listed.
SECTION 13.02. Defeasance of Debt Securities of any Series. The
provisions of this Indenture (except as to (x) the rights of Holders of Debt
Securities of any series to receive, from the money, in the currency required,
and Government Obligations deposited with the Trustee pursuant to paragraph (1)
below or the interest and principal received by the Trustee in respect of such
Government Obligations, payment of the principal of (and premium, if any) and
any installment of principal of (and premium, if any) or interest on such Debt
Securities on the Stated Maturities thereof or upon the Redemption Dates for
Debt Securities required to be redeemed pursuant to any mandatory sinking or
analogous provisions relating to Securities of that series or pursuant to any
call for redemption relating to Debt Securities of that series, (y) the
Company's rights and obligations with respect to such Debt Securities under
Sections 3.06, 3.07, 13.03, 13.04, Article Seven (other than subsections (d) and
(e) of Section 7.01), Sections 5.01, 5.02, 5.04, 6.01, 8.06, 8.10, 8.11 and, to
the extent application to such series, Article Four, so long as the principal of
(and premium, if any) and interest on the Debt Securities of such series remain
unpaid and, thereafter, only the Company's rights and obligations under Sections
5.04, 8.06, 13.03 and 13.04, and (z) the rights, powers, trusts, duties and
immunities of the Trustee with respect to the Debt Securities of such series) as
it relates to Debt Securities of any series shall no longer be in effect, and
the Trustee, at the expense of the Company shall, upon Company Request, execute
proper instruments acknowledging the same if:
(1) the Company has deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose (A) the Dollars of
Foreign Currency, as applicable, in an amount, or (B) Government
Obligations which through the payment of interest and principal in
respect thereof in accordance with their terms will provide on or
before the due date of any payment in respect of such series of Debt
Securities in an amount, or (C) a combination thereof, sufficient,
after payment of all Federal, state and local taxes in respect thereof
payable by the Trustee, 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 (i) the
principal of (and premium, if any) and each installment of principal
(and premium, if any) and interest on the Outstanding Debt Securities
of that series on the Stated Maturity of such principal or installment
of principal or interest and (ii) any mandatory sinking fund payments
or analogous payments or payments pursuant to any call for redemption
applicable to Debt Securities of such series on the day on which such
payments are due
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and payable in accordance with the terms of the Indenture and such
Debt Securities;
(2) no Event of Default or event which with notice or lapse of
time would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(3) the interest of the Holders in such deposit shall have been
duly perfected under the applicable provisions of the Uniform
Commercial Code; and
(4) 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 defeasance
contemplated by this Section have been complied with.
SECTION 13.03. Application of Trust Funds; Indemnification. (a)
Subject to the provisions of Section 13.04, all money and Government Obligations
deposited with the Trustee pursuant to Section 13.01 or 13.02 and all money
received by the Trustee in respect of Government Obligations deposited with the
Trustee, shall be held in trust and applied by it, in accordance with the
provisions of the Debt 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 premium, if any) and interest for whose payment such money
and Government Obligations have been deposited with or received by the Trustee
as contemplated by Section 13.01 or 13.02.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against Government Obligations
deposited pursuant to Section 13.01 or 13.02 or the interest and principal
received in respect of such obligations, other than any such tax, fee or other
charge payable by or on behalf of Holders. The Company shall be entitled to
prompt notice of an assessment or the commencement of any proceeding for which
indemnification may be sought hereunder and, at its election, to contest such
assessment or to participate in, assume the defense of, or settle such
proceeding.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any Government Obligations or money held by it as provided
in Section 13.01 or 13.02 which, in the opinion of a nationally-recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are then in excess of the amount thereof which then
would have been required to be deposited for the purpose for which such
obligations or money were deposited or received.
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(d) If the Trustee is unable to apply any money or Government
Obligations in accordance with Section 13.02 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Debt Securities, if any, of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 13.02 until such time as the Trustee is permitted to apply all such
money or Government Obligations in accordance with Section 13.02; provided,
however, that if the Company has made any payment of interest on or principal of
(and premium, if any) on any Debt Securities, if any, of such series because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such series of Debt Securities, if any, to receive such
payment from the money or Government Obligations held by the Trustee.
SECTION 13.04. Return of Unclaimed Moneys. Any moneys deposited with
or paid to the Trustee or any paying agent for payment of the principal of and
premium, if any, or interest on Debt Securities and not applied but remaining
unclaimed by the Holders of Debt Securities for two years after the date upon
which the principal of and premium, if any, or interest on such Debt Securities,
as the case may be, shall have become due and payable, shall be repaid to the
Company by the Trustee or such paying agent on demand; and the Holder of any of
the Debt Securities entitled to receive such payment shall thereafter look only
to the Company for any payment thereof.
ARTICLE FOURTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 14.01. Indenture and Debt Securities Solely Corporate
Obligations. No recourse under or upon any obligation, covenant or agreement of
this Indenture, any supplemental indenture, or of any Debt Security, or for any
claim based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer, director or employee, as such, past, present
or future, of the Company or any Subsidiary or of any predecessor or successor
corporation, either directly or through the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no such
personal liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers, directors or employees, as such, of the
Company or of any predecessor or 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 Debt Securities or implied thereby;
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and that any and all such personal liability, either at common law or in equity
or by constitution or statute of, and any and all such rights and claims
against, every such incorporator, stockholder, officer, director or employee, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Debt Securities or implied thereby, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of such Debt Securities.
ARTICLE FIFTEEN.
MISCELLANEOUS PROVISIONS.
SECTION 15.01. Provisions Binding on Successors of the Company. All
of the covenants, stipulations, promises and agreements in this Indenture
contained by the Company shall bind its successors and assigns whether so
expressed or not.
SECTION 15.02. Indenture for Sole Benefit of Parties and Holders of
Debt Securities. Nothing in this Indenture or in the Debt Securities, expressed
or implied, shall give or be construed to give to any Person, firm or
corporation, other than the parties hereto, any agent of the Trustee or the
Company under this Indenture and the Holders of the Debt Securities, any legal
or equitable right, remedy or claim under or in respect of this Indenture, or
under any covenant, condition or provision herein contained; all such covenants,
conditions and provisions being, subject to the provisions of Articles Twelve
and Fourteen, for the sole benefit of the parties hereto, any agent of the
Trustee or the Company under this Indenture and the Holders of the Debt
Securities.
SECTION 15.03. Addresses for Notices, etc. Any notice or demand
which by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the Holders of Debt Securities on the Company may be
given or served by being deposited, registered or certified mail postage
prepaid, in a post office letter box in the United States addressed (until
another address is filed by the Company with the Trustee) to the Company, 5757
North Green Bay Road, Milwaukee, Wisconsin 53209, Attention: Secretary. Any
notice, direction, request or demand by any Holder of a Debt Security or the
Company to or upon the Trustee shall be deemed to have been sufficiently given
or made, for all purposes, if given or made in writing at the principal office
of the Trustee, addressed to the attention of its Corporate Trust Department.
Any notice, report or other instrument required by any of the provisions of this
Indenture to be given by the Trustee to the Holders of Debt Securities of any or
all series shall be deemed to have been sufficiently given, for all purposes,
when mailed by first class mail.
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SECTION 15.04. New York Contract. This Indenture and the Debt
Securities shall for all purposes be construed in accordance with and governed
by the laws of the State of New York.
SECTION 15.05. Evidence of Compliance with Conditions Precedent.
Upon any Company request to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any (including
any covenant, compliance with which constitutes a condition precedent) provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with, except that in the case of any
such application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 15.06. Legal Holidays. In any case where the date of
maturity of interest on or principal of or premium, if any, on any series of
Debt Securities or the date fixed for redemption of any Debt Security or Debt
Securities will be a legal holiday or a day on which banking institutions are
legally authorized or obligated to close in Delaware or any other location where
a paying agent appointed pursuant to Section 5.02 is located, then payment of
such interest on or principal of and premium, if any, on such Debt Securities
need not be made by such paying agent on such date but may be made by such
paying agent on the next succeeding business day that is not a day in such
location that is either a legal holiday or a day on which banking institutions
are legally authorized or obligated to close, with the same force and effect as
if made on such date of maturity or the date fixed for redemption and no
interest shall accrue for the period from and after such prior date.
SECTION 15.07. Trust Indenture Act of 1939 to Control. If any
provision hereof limits, qualifies or conflicts with the duties imposed by any
of Sections 310 through 317 of the Trust Indenture Act of 1939, by the operation
of Section 318(c) thereof, such imposed duties shall control, except as, and to
the extent, expressly excluded from this
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Indenture, as permitted by the Trust Indenture Act of 1939. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act of
1939 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 15.08. Table of Contents, Headings, etc. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 15.09. Determination of Principal Amount. In determining
whether the Holders of the requisite principal amount of Outstanding Debt
Securities of any series have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, or whether sufficient funds are
available for redemption or for any other purpose, (i) the principal amount of
an Original Issue Discount Debt Security that shall be deemed to be Outstanding
for such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the maturity thereof pursuant to Section 7.01, (ii) the
principal amount of any Debt Securities denominated in a Foreign Currency that
shall be deemed to be Outstanding for such purposes shall be determined by
converting the Foreign Currency into Dollars at the Market Exchange Rate as of
the date of such determination and (iii) the principal amount of any Indexed
Debt Security that shall be deemed to be Outstanding for such purposes shall be
the amount of the principal face amount of such Indexed Debt Security at
original issuance, unless otherwise provided in or pursuant to this Indenture.
SECTION 15.10. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original and
such counterparts shall together constitute but one and the same instrument.
Chase Manhattan Bank Delaware hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
ARTICLE SIXTEEN.
SUBORDINATION OF DEBT SECURITIES.
SECTION 16.01. Debt Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of Debt Securities, by his
acceptance thereof, likewise covenants and agrees, that the indebtedness
represented by the Debt Securities and the payment of any and all amounts
payable in respect of each and all of the Debt Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of Senior Indebtedness, whether outstanding
on the date of this Indenture or thereafter incurred, assumed or guaranteed.
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In the event (a) of any distribution of assets of the Company upon any
dissolution, winding up, liquidation or reorganization of the Company whether in
a bankruptcy, insolvency, reorganization or receivership proceeding or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise, except a distribution in connection
with a merger or consolidation or a conveyance or transfer of all or
substantially all of the properties of the Company which complies with the
requirements of Article Twelve, or (b) that a default shall have occurred and be
continuing with respect to the payment of any amount payable in respect of any
Senior Indebtedness, or (c) that the principal of the Debt Securities of any
Series shall have been declared due and payable pursuant to Section 7.01 and
such declaration shall not have been rescinded and annulled as provided in
Section 7.01, then:
(1) in a circumstance described in the foregoing clause (a) or
(b) the holders of all Senior Indebtedness, and in the circumstance
described in the foregoing clause (c) the holders of all Senior
Indebtedness outstanding at the time the principal of such Debt
Securities (or in the case of Original Issue Discount Debt Securities,
such portion of the principal amount) shall have been so declared due
and payable, shall first be entitled to receive payment of the full
amount due thereon, or provision shall be made for such payment in
money or money's worth, before the Holders of any of the Debt
Securities are entitled to receive any payment in respect of the
indebtedness evidenced by the Debt Securities;
(2) any payment by, or distribution of assets of, the Company of
any kind or character, whether in cash, property or securities (other
than securities of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for by a
plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article with
respect to the Debt Securities, to the payment of all Senior
Indebtedness, provided that the rights of the holders of the Senior
Indebtedness are not altered by such reorganization or readjustment),
to which the Holders of any of the Debt Securities would be entitled
except for the provisions of this Article shall be paid or delivered
by the person making such payment or distribution, whether a trustee
in bankruptcy, a receiver or liquidating trustee or otherwise,
directly to the holders of such Senior Indebtedness or their
representative or representatives or to the trustee or trustees under
any indenture under which any instrument evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of such Senior Indebtedness held
or represented by each, to the extent
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necessary to make payment in full of all Senior Indebtedness remaining
unpaid after giving effect to any concurrent payment or distribution
(or provision therefor) to the holders of such Senior Indebtedness,
before any payment or distribution is made to the Holders of the
indebtedness evidenced by the Debt Securities under this Indenture;
and
(3) in the event that, notwithstanding the foregoing, any payment
by, or distribution of assets of, the Company of any kind or
character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in this Article with respect to the Debt
Securities, to the payment of all Senior Indebtedness, provided that
the rights of the holders of Senior Indebtedness are not altered by
such reorganization or readjustment), shall be received by the Holders
of any of the Debt Securities before all Senior Indebtedness is paid
in full, such payment or distribution shall be paid over to the
holders of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture
under which any instruments evidencing any of such Senior Indebtedness
may have been issued, ratably as aforesaid, for application to the
payment of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall have been paid in full, after giving effect
to any concurrent payment or distribution (or provision therefor) to
the holders of such Senior Indebtedness.
SECTION 16.02. Subrogation. Subject to the payment in full of all
Senior Indebtedness to which the indebtedness evidenced by the Debt Securities
is in the circumstances subordinated as provided in Section 16.01, the Holders
of the Debt Securities shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to such Senior Indebtedness until all
amounts owing on the Debt Securities shall be paid in full, and, as between the
Company, its creditors other than holders of such Senior Indebtedness, and the
Holders of the Debt Securities, no such payment or distribution made to the
holders of such Senior Indebtedness by virtue of this Article which otherwise
would have been made to the Holders of the Debt Securities shall be deemed to be
a payment by the Company on account of such Senior Indebtedness, it being
understood that the provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Debt
Securities, on the one hand, and the holders of Senior Indebtedness.
SECTION 16.03. Obligation of the Company Unconditional. Nothing
contained in this Article or elsewhere in this Indenture or in the Debt
Securities is intended
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to or shall impair, as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Debt Securities, the obligation
of the Company, which is absolute and unconditional, to pay to the Holders of
the Debt Securities the principal of and interest on and any additional amounts
owing in respect of the Debt Securities as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of the Holders of the Debt Securities and creditors of the
Company other than the holders of Senior Indebtedness nor shall anything herein
or therein prevent the Trustee or the Holder of any Debt Security from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders
of Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of the Debt Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which any such dissolution, winding up, liquidation or
reorganization proceeding affecting the affairs of the Company is pending or
upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors, liquidating trustee or agent or other person making any
payment or distribution, delivered to the Trustee or to the Holders of the Debt
Securities, for the purpose of ascertaining the persons entitled to participate
in such payment or distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount paid or distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 16.04. Payments on Debt Securities Permitted. Nothing
contained in this Article or elsewhere in this Indenture, or in any of the Debt
Securities, shall affect the obligation of the Company to make, or prevent the
Company from making, payment of the principal of or interest on or any
additional amounts owing in respect of the Debt Securities in accordance with
the provisions hereof and thereof, except as otherwise provided in this Article.
SECTION 16.05. Effectuation of Subordination by Trustee. Each Holder
of Debt Securities, by his acceptance thereof, authorizes and directs the
Trustee in his behalf to take such action as may be necessary or appropriate to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney in fact for any and all such purposes.
SECTION 16.06. Knowledge of Trustee. Notwithstanding the provisions
of this Article or any other provisions of this Indenture, the Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Indebtedness and
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment of moneys to or by the Trustee, or the taking
of any other action by the Trustee, unless and until the Trustee shall have
received written notice thereof from the
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Company, any Holder of Debt Securities, any paying or conversion agent of the
Company or the holder or representative of any class of Senior Indebtedness;
provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least three Business Days prior to the date upon
which, by the terms hereof, any money may become payable for any purpose
(including, without limitation, the payment of the principal of or interest on,
or additional amounts owing in respect of, any Debt Security) then, anything
herein contained to the contrary notwithstanding, the Trustee shall have all
power and authority to receive such money and to apply the same to the purpose
for which such money was received and shall not be affected by any notice to the
contrary which may be received by it during or after such three Business Day
period.
SECTION 16.07. Trustee May Hold Senior Indebtedness. The Trustee in
its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Indebtedness at the time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in Section
313 of the TIA or elsewhere in this Indenture shall deprive the Trustee of any
of its rights as such holder.
Nothing in this Article shall subordinate any claims of, or payments
to, the Trustee (under or pursuant to Section 8.06) to Senior Indebtedness.
SECTION 16.08. Rights of Holders of Senior Indebtedness Not Impaired.
No right of any present or future holder of any Senior Indebtedness to enforce
the subordination herein shall at any time or in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
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IN WITNESS WHEREOF, JOHNSON CONTROLS, INC. has caused this Indenture
to be signed and acknowledged by its President and either its Chief Financial
Officer or its Treasurer, and its corporate seal to be affixed hereunto, and the
same to be attested by its Secretary or an Assistant Secretary, and CHASE
MANHATTAN BANK DELAWARE has caused this Indenture to be signed and acknowledged
by one of its Senior Trust Officers, has caused its corporate seal to be affixed
hereunto, and the same to be attested by its Secretary or one of its Assistant
Secretaries, as of the day and year first written above.
JOHNSON CONTROLS INC.
By
-----------------------------
Title
By
-----------------------------
Title
(CORPORATE SEAL)
ATTEST:
- ---------------------------------
CHASE MANHATTAN BANK
DELAWARE
By
------------------------------
(CORPORATE SEAL)
ATTEST:
- ---------------------------------
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STATE OF ILLINOIS )
) SS:
COUNTY OF COOK )
On the ______ day of __________, 199_, before me personally came
and ____________________, to me known, who, being by me duly sworn,
did depose and say that they are _________________ and __________________
respectively, of JOHNSON CONTROLS, INC., one of the corporations described in
and which executed the foregoing instrument; that they know the seal of said
corporation; that the seal affixed to said instrument bearing the name of said
corporation is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; that they signed their names thereto by
like authority; and said they acknowledged said instrument to be their free act
and deed and the free act and deed of said corporation.
WITNESS my hand and official seal the day and year first above written.
----------------------------------
Notary Public
(NOTARIAL SEAL) My commission expires:
-----------
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STATE OF DELAWARE
SS.:
COUNTY OF NEW CASTLE
On this _____ day of _______ , 199 , before me personally came
, to me known, who, being by me duly sworn, did depose and say that he
is a _________________________ of Chase Manhattan Bank Delaware, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
bearing the name of said corporation 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; and said _________________________
acknowledged said instrument to be his free act and deed and the free act and
deed of said corporation.
WITNESS my hand and official seal the day and year first above written.
--------------------------------
Notary Public
(NOTARIAL SEAL) My commission expires:
--------------------
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<PAGE> 1
EXHIBIT 4.4
- --------------------------------------------------------------------------------
JOHNSON CONTROLS, INC.
STANDARD [COMMON/PREFERRED] STOCK WARRANT
AGREEMENT PROVISIONS
-----------------,1996
- --------------------------------------------------------------------------------
<PAGE> 2
From time to time, Johnson Controls, Inc., a Wisconsin corporation (the
"Company"), may enter into one or more warrant agreements that provide for the
issuance and sale of warrants ("Warrants") to purchase shares of the Company's
[common stock, $.16 2/3 par value (the "Common Stock")/specify preferred stock,
$1.00 par value (the "Preferred Stock")] (such shares are hereinafter referred
to as the "Shares" and, where appropriate, such term shall also mean the other
securities or property purchasable upon the exercise of the Warrants upon the
happening of certain events as provided for herein, and such [Common/Preferred]
Stock is hereinafter referred to as the "Stock"). The standard provisions set
forth herein may be included or incorporated by reference in any such warrant
agreement (a "Warrant Agreement"). The Warrant Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
"Agreement." The person named as the "Warrant Agent" in the first paragraph of
the Warrant Agreement is herein referred to as the "Warrant Agent." Unless
otherwise defined in this Agreement or in the Warrant Agreement, as the case
may be, terms defined in the Warrant Agreement are used herein as therein
defined and terms defined herein are used in the Warrant Agreement as herein
defined.
SECTION 1. Number of Warrants Unlimited; Issuable from Time to Time. The
number of Warrants which may be issued and delivered under this Agreement is
unlimited.
There shall be established in or pursuant to a resolution of the Board of
Directors of the Company or established in one or more warrant agreements
supplemental hereto, prior to the issuance of any Warrants:
(a) the offering price,
(b) the designation and terms of such Warrants and the Stock purchasable
upon exercise of such Warrants,
(c) the date on which the right to exercise such Warrants shall commence,
(d) if the Warrants are issued together as a unit with any other securities
of the Company, the date after which the Warrants shall be freely
tradeable separately from such other securities (the "Distribution
Date") and if the Company may at its option or under circumstances
described therein provide for an earlier Distribution Date,
(e) the Expiration Date pursuant to Section 6,
(f) the Exercise Price and any form of consideration other than lawful money
of the United States of America by
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which the Exercise Price may be paid pursuant to Section 6,
(g) the Call Price, Call Date and Call Terms pursuant to Section 7,
(h) the limitations, if any, upon the Reduced Exercise Price and the Reduced
Exercise Price Period pursuant to Section 8,
(i) the circumstances, if any, under which the Exercise Price and the number
of Shares purchasable upon the exercise of each Warrant and the number of
Warrants outstanding are subject to adjustment and the manner of making
any such adjustment.
SECTION 2. Form of Warrant Certificates. The certificates evidencing the
Warrants (the "Warrant Certificates") to be delivered pursuant to this
Agreement shall be in registered form only. The Warrant Certificates shall be
in substantially such form or forms as shall be established by the Company from
time to time pursuant to one or more resolutions of the Board of Directors of
the Company or in one or more warrant agreements supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
as may, consistently herewith, be determined by the officers executing such
Warrants, as evidenced by their execution of the Warrants.
SECTION 3. Execution of Warrant Certificates. Warrant Certificates shall be
signed on behalf of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, a Vice President or its Treasurer and
attested by its Secretary or Assistant Secretary, under its corporate seal.
Each such signature upon the Warrant Certificates may be in the form of a
facsimile signature of the current or any future Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Warrant Certificates
shall be countersigned and delivered or disposed of such person shall have
ceased to hold such office. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
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If any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date of the execution of this Agreement
any such person was not such officer.
SECTION 4. Registration and Countersignature. Warrant Certificates shall be
manually countersigned and dated the date of countersignature by the Warrant
Agent and shall not be valid for any purpose unless so countersigned. The
Warrants shall be numbered and shall be registered in a register (the "Warrant
Register") to be maintained by the Warrant Agent.
The Company and the Warrant Agent may deem and treat the registered holder of
a Warrant Certificate as the absolute owner thereof (notwithstanding any
notation of ownership or other writing thereon made by anyone), for the purpose
of any exercise thereof or any distribution to the holder thereof and for all
other purposes, and neither the Company nor the Warrant Agent shall be affected
by any notice to the contrary.
SECTION 5. Registration of Transfers and Exchanges. The Warrant Agent shall
from time to time register the transfer of any outstanding Warrant Certificates
in the Warrant Register, upon surrender of such Warrant Certificates, duly
endorsed, and accompanied by a written instrument or instruments of transfer in
form satisfactory to the Warrant Agent, duly signed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney, such signature to be guaranteed by (a) a bank or
trust company, (b) a broker or dealer that is a member of the National
Association of Securities Dealers, Inc. (the "NASD") or (c) a member of a
national securities exchange. Upon any such registration of transfer, a new
Warrant Certificate shall be issued to the transferee.
Warrant Certificates may be exchanged at the option of the holder or holders
thereof, when surrendered to the Warrant Agent at its offices or agency
maintained for the purpose of exchanging, transferring and exercising the
Warrants (a "Warrant Agent Office") or at the offices of any successor Warrant
Agent as provided in Section 19 hereof, for another Warrant Certificate or
other Warrant Certificates of like tenor representing in the aggregate a like
number of Warrants.
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The Warrant Agent is hereby authorized to countersign, in accordance with the
provisions of this Section 5 and of Section 4, and deliver the new Warrant
Certificates required pursuant to the provisions of this Section, and for the
purpose of any distribution of Warrant Certificates contemplated by Section 14.
No service charge shall be made for any exchange or registration of transfer
of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange or registration of
transfer. Whenever any Warrant Certificates are surrendered for exchange or
registration of transfer, an authorized officer of the Warrant Agent shall
mutually countersign and deliver to the person or persons entitled thereto a
Warrant Certificate or Warrant Certificates duly authorized and executed by the
Company, as so requested. The Warrant Agent shall not be required to effect
any exchange or registration of transfer that will result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange or registration of transfer of Warrant Certificates shall be the valid
obligations of the Company, evidencing the same obligations and entitled to the
same benefits under this Agreement as the Warrant Certificates surrendered for
such exchange or registration of transfer.
SECTION 6. Duration and Exercise of Warrants.
(a) The Warrants shall expire on (a) the close of business on the date set
forth pursuant to Section 1, or (b) such later date as shall be determined in
the sole discretion of the Company, in a written statement to the Warrant Agent
and with notice to registered holders of Warrants in the manner provided for in
Section 16 (such date of expiration being herein referred to as the "Expiration
Date"). On and after the Distribution Date, each Warrant may be exercised on
any business day on or prior to the close of business on the Expiration Date.
After the close of business on the Expiration Date, the Warrants will become
void and of no value.
(b) Subject to the provisions of this Agreement, including Section 14, the
holder of each Warrant shall have the right to purchase from the Company (and
the Company shall issue and sell to such holder of a Warrant) one fully paid
and nonassessable Share (except as provided by Section 180.0622(2)(b) of the
Wisconsin Business Corporation Law (the "WBCL") regarding personal liability of
shareholders for all debts owing to employees of the Company for services
performed but not exceeding six months' service in any one case) at the price
set forth pursuant to Section 1 (such price, as may be adjusted from time to
time as provided in Section 14, being the "Exercise Price") upon depositing
with the Warrant Agent at a
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Warrant Agent Office the Warrant Certificate evidencing such Warrant, with the
form of election to purchase on the reverse thereof duly completed and signed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by a bank or trust company, by a broker or dealer which is a member
of NASD or by a member of a national securities exchange, and upon payment of
the Exercise Price for the number of Shares in respect of which such Warrant is
being exercised. Unless otherwise provided pursuant to Section 1, payment of
the aggregate Exercise Price shall be made in lawful money of the United States
of America. If the Warrant Agent receives moneys in payment of the purchase
price for Warrants, the Warrant Agent shall deposit all funds received by it in
the account of the Company maintained with it for such purpose. If the Warrant
Agent receives consideration other than moneys for Warrants, the Warrant Agent
shall deliver such consideration directly to the Company. In either case, the
Warrant Agent shall advise the Company by telex or telecopy at the end of each
day as to the Warrant Certificates that have been exercised and the amount of
moneys deposited to its account or the type and amount of other consideration
to be delivered to it.
(c) The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Shares to which such holder is
entitled upon such exercise, (iii) delivery of Warrant Certificates evidencing
the balance, if any, of the Warrants remaining after such exercise and (iv)
such other information as the Company shall reasonably require.
(d) Subject to Section 10, upon such surrender of a Warrant Certificate and
payment of the Exercise Price, the Warrant Agent shall requisition from the
Company's Stock transfer agent (the "Transfer Agent") for issuance and delivery
to or upon the written order of the registered holder of such Warrant
Certificate and in such name or names as such registered holder may designate,
a certificate or certificates for the Share or Shares issuable upon the
exercise of the Warrant or Warrants evidenced by such Warrant Certificate(s).
Such certificate or certificates shall be deemed to have been issued and any
person so designated to be named therein shall be deemed to have become the
holder of record of such Share or Shares as of the date of the surrender of
such Warrant Certificate duly executed and payment of the Exercise Price. The
Warrants evidenced by a Warrant Certificate shall be exercisable, at the
election of the registered holder thereof, either as an entirety or from time
to time for a portion of the number of Warrants specified in the Warrant
Certificate. If less than all of the Warrants evidenced by a Warrant
Certificate surrendered upon the exercise of Warrants are exercised at any time
prior to the date of expiration for the Warrants, a new Warrant Certificate or
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Certificates shall be issued for the remaining number of Warrants evidenced by
the Warrant Certificate so surrendered, and the Warrant Agent is hereby
authorized to countersign the required new Warrant Certificate or Certificates
pursuant to the provisions of Section 5 and this Section 6.
SECTION 7. Call of Warrants by the Company. If so provided in the Warrant
Agreement, the Company shall have the right to call and repurchase any or all
Warrants at the price (the "Call Price") and on or after the date (the "Call
Date") and upon the terms (the "Call Terms") as shall be set forth pursuant to
Section 1. Notice of such Call Price, Call Date and Call Terms shall be given
to registered holders of Warrants in the manner provided in Section 16.
SECTION 8. Optional Reduction of Exercise Price. Subject to the limits, if
any, set forth pursuant to Section 1, the Company shall have the right, at any
time or from time to time, voluntarily to reduce the then current Exercise
Price to such amount (the "Reduced Exercise Price") and for such period or
periods of time, which may be through the close of business on the Expiration
Date (the "Reduced Exercise Price Period") as may be deemed appropriate by the
Company. Notice of any such Reduced Exercise Price and Reduced Exercise Price
Period shall be given to registered holders of Warrants in the manner provided
in Section 16. After the termination of the Reduced Exercise Price Period, the
Exercise Price shall be such Exercise Price that would have been in effect, as
adjusted pursuant to the provisions of Section 14, had there been no reduction
in the Exercise Price pursuant to the provisions of this Section 8. No
reduction of the then current Exercise Price pursuant to the provisions of this
Section 8 shall be deemed for the purposes of Section 14 hereof to alter or
adjust the Exercise Price.
SECTION 9. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exercise, registration of transfer or exchange shall, if
surrendered to the Company, be delivered to the Warrant Agent, and all Warrant
Certificates surrendered or so delivered to the Warrant Agent shall be promptly
canceled by the Warrant Agent and shall not be reissued and, except as
expressly permitted by this Agreement, no Warrant Certificate shall be issued
hereunder in lieu thereof. The Warrant Agent shall deliver to the Company from
time to time, or otherwise dispose of, canceled Warrant Certificates in a
manner satisfactory to the Company.
SECTION 10. Payment of Taxes. The Company will pay all documentary stamp
taxes attributable to the initial issuance of Warrants and of Shares upon the
exercise of Warrants; provided, however, that the Company shall not be required
to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue of any Warrant Certificates or any certificates for
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Shares in a name other than the registered holder of a Warrant Certificate
surrendered upon the exercise of a Warrant, and the Company shall not be
required to issue or deliver such certificates unless or until the person or
persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid.
SECTION 11. Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon
receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership and the loss, theft, destruction or
mutilation of the Warrant Certificate, and of indemnity reasonably satisfactory
to them, and, in the case of mutilation, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the
lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and for a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expense (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute
an additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) any and all other rights or remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
SECTION 12. Reservation of Shares. For the purpose of enabling it to satisfy
any obligation to issue Shares upon exercise of Warrants, the Company will at
all times through the close of business on the Expiration Date, reserve and
keep available, free from preemptive rights and out of its aggregate authorized
but unissued or treasury shares of Stock, the number of Shares deliverable upon
the exercise of all outstanding Warrants, and the Transfer Agent for such Stock
is hereby irrevocably authorized and directed at all times to reserve such
number of authorized and unissued or treasury shares of Stock as shall be
required for such purpose. The Company will keep a copy of this Agreement on
file with such Transfer Agent and with every transfer agent for any shares of
the Company's capital stock issuable upon the exercise of
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Warrants pursuant to Section 14. The Warrant Agent is hereby irrevocably
authorized to requisition from time to time from such Transfer Agent Stock
certificates issuable upon exercise of outstanding Warrants, and the Company
will supply such Transfer Agent with duly executed Stock certificates for such
purpose.
Before taking any action that would cause an adjustment pursuant to Section
14 reducing the Exercise Price below the then par value (if any) of the Shares
issuable upon exercise of the Warrants, the Company will take any corporate
action that may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Shares
(except as provided by Section 180.0622(2)(b) of the WBCL regarding personal
liability of shareholders for all debts owing to employees of the Company for
services performed but not exceeding six months' service in any one case) at
the Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the Warrants,
will, upon issuance in accordance with the terms of this Agreement, be fully
paid and nonassessable and free from all taxes, liens, charges and security
interests created by or imposed upon the Company with respect to the issuance
and holding thereof, except as provided by Section 180.0622(2)(b) of the WBCL
regarding personal liability of shareholders for all debts owing to employees
of the Company for services performed but not exceeding six months' service in
any one case.
SECTION 13. Obtaining of Governmental Approvals and Stock Exchange Listings.
The Company will from time to time take all action that may be necessary (a) to
obtain and keep effective any and all permits, consents and approvals of
governmental agencies and authorities and to make filings under federal and
state securities acts and laws, which may be or become requisite in connection
with the issuance, sale, transfer and delivery of the Warrant Certificates, the
exercise of the Warrants and the issuance, sale, transfer and delivery of the
Shares issued upon exercise of Warrants, and (b) to have the shares of Stock,
immediately upon their issuance upon exercise of Warrants, (i) listed on each
national securities exchange on which the Stock is then listed or (ii) if the
Stock is not then listed on any national securities exchange, listed for
quotation on the NASD Automated Quotations System ("NASDAQ") National Market
System ("NASDAQ/NMS") or such other over-the-counter quotation system on which
the Stock may then be listed.
SECTION 14. Adjustment of Exercise Price and Number of Shares Purchasable or
Number of Warrants. Except as may be otherwise provided in accordance with
Section 1, the Exercise Price, the number of Shares purchasable upon the
exercise of each Warrant and the number of Warrants outstanding are subject to
adjustment from
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time to time upon the occurrence of the events enumerated in this Section 14.
(a) If the Company shall (i) pay a dividend on its capital stock (including
Stock) in shares of Stock, (ii) subdivide its outstanding shares of Stock,
(iii) combine its outstanding shares of Stock into a smaller number of shares
of Stock or (iv) issue any shares of its capital stock in a reclassification of
the Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing corporation),
the number of Shares purchasable upon exercise of each Warrant immediately
prior thereto shall be adjusted so that the holder of each Warrant shall be
entitled to receive the kind and number of Shares or other securities of the
Company which such holder would have owned or have been entitled to receive
after the happening of any of the events described above, had such Warrant been
exercised immediately prior to the happening of such event or any record date
with respect thereto. An adjustment made pursuant to this paragraph (a) shall
become effective immediately after the effective date of such event retroactive
to the record date, if any, for such event.
(b) In the event of any capital reorganization or any reclassification of
the Stock (except as provided in paragraph (a) above or paragraph (h) below),
any holder of Warrants upon exercise thereof shall be entitled to receive, in
lieu of the Stock to which he would have become entitled upon exercise
immediately prior to such reorganization or reclassification, the shares (of
any class or classes) or other securities or property of the Company that he
would have been entitled to receive at the same aggregate Exercise Price upon
such reorganization or reclassification if his Warrants had been exercised
immediately prior thereto; and in any such case, appropriate provision (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be conclusive and shall be evidenced by a resolution filed
with the Warrant Agent) shall be made for the application of this Section 14
with respect to the rights and interests thereafter of the holders of Warrants
(including the allocation of the adjusted Exercise Price between or among
shares of classes of capital stock), to the end that this Section 14 (including
the adjustments of the number of shares of Stock or other securities
purchasable and the Exercise Price thereof) shall thereafter be reflected, as
nearly as reasonably practicable, in all subsequent exercises of the Warrants
for any shares or securities or other property thereafter deliverable upon the
exercise of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof, no adjustment
in the number of Shares purchasable hereunder shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%)
in the number of Shares purchasable upon the exercise of each Warrant;
provided, however,
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that any adjustments which by reason of this paragraph (c) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations shall be made to the nearest cent and to the
nearest one-hundredth of a Share, as the case may be.
(d) Whenever the number of Shares purchasable upon the exercise of each
Warrant is adjusted as herein provided (whether or not the Company then or
thereafter elects to issue additional Warrants in substitution for an
adjustment in the number of Shares as provided in paragraph (f)), the Exercise
Price payable upon exercise of each Warrant shall be adjusted by multiplying
such Exercise Price immediately prior to such adjustments by a fraction, of
which the numerator shall be the number of Shares purchasable upon the exercise
of each Warrant immediately prior to such adjustment, and the denominator shall
be the number of Shares so purchasable immediately thereafter.
(e) For the purpose of this Section 14, the term "shares of stock" shall
mean (i) the class of stock designated as the [Common/specify preferred stock]
Stock of the Company at the date of this Agreement, or (ii) any other class of
stock resulting from successive changes or reclassification of such shares
consisting solely of changes in par value, of from par value to no par value,
or from no par value to par value. If at any time, as a result of an
adjustment made pursuant to paragraph (a) or (b) above, the holders of Warrants
shall become entitled to purchase any shares of the Company other than shares
of Stock, thereafter the number of shares so purchasable upon exercise of each
Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Shares contained in paragraph (a) through
(d), inclusive, above, and the provisions of Sections 5, 10, 12, 13(a) and 16,
with respect to the Shares, shall apply on like terms to any such other shares.
(f) The Company may elect, on or after the date of any adjustment required
by paragraphs (a) or (b) of this Section 14, to adjust the number of Warrants
in substitution for an adjustment in the number of Shares purchasable upon the
exercise of a Warrant. Each of the Warrants outstanding after such adjustment
of the number of Warrants shall be exercisable for the same number of Shares as
immediately prior to such adjustment. Each Warrant held of record prior to
such adjustment of the number of Warrants shall become that number of Warrants
(calculated to the nearest hundredth) obtained by dividing the Exercise Price
in effect prior to adjustment of the Exercise Price by the Exercise Price in
effect after the adjustment of the Exercise Price. The Company shall notify
the holders of Warrants in the same manner as provided in the first paragraph
of Section 16, of its election to adjust the number of Warrants, indicating the
record date for the adjustment,
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and, if known at the time, the amount of the adjustment to be made. This
record date may be the date on which the Exercise Price is adjusted or any day
thereafter. Upon each adjustment of the number of Warrants pursuant to this
paragraph (f) the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Warrants on such record date Warrant
Certificates evidencing, subject to Section 15, the additional Warrants to
which such holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Warrant Certificates held by such
holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Warrant Certificates evidencing all the Warrants
to be issued, executed and registered in the manner specified in Sections 4 and
5 (and which may bear, at the option of the Company, the adjusted Exercise
Price) and shall be registered in the names of the holders of record of Warrant
Certificates on the record date specified in the notice.
(g) Except as provided in paragraph (a) of this Section 14, no adjustment in
respect of any dividends shall be made during the term of a Warrant or upon the
exercise of a Warrant.
(h) In case of any consolidation of the Company with or merger of the
Company into another corporation or in case of any sale or conveyance to
another corporation of the property of the Company as an entirety or
substantially as an entirety, the Company or such successor or purchasing
corporation, as the case may be, shall execute with the Warrant Agent an
agreement that each holder of a Warrant shall have the right thereafter upon
payment of the Exercise Price in effect immediately prior to such action to
purchase upon exercise of each Warrant the kind and amount of shares and other
securities and property which he would have owned or have been entitled to
receive after the happening of such consolidation, merger, sale or conveyance
had such Warrant been exercised immediately prior to such action. The Company
shall mail by first class mail, postage prepaid, to each holder of a Warrant,
notice of the execution of any such agreement. Such agreement shall provide
for adjustments, which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Section 14. The provisions of this
paragraph (h) shall similarly apply to successive consolidations, mergers,
sales or conveyances. The Warrant Agent shall be under no duty or
responsibility to determine the correctness of any provisions contained in any
provisions contained in any such agreement relating either to the kind or
amount of shares of stock or other securities or property receivable upon
exercise of Warrants or with respect to the method employed and provided
therein for any adjustments and shall be entitled to rely upon the provisions
contained in any such agreement.
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(i) Irrespective of any adjustments in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
SECTION 15. Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of Warrants on any
distribution of Warrants to holders of Warrant Certificates pursuant to Section
14(f) or to distribute Warrant Certificates that evidence fractional Warrants.
In lieu of such fractional Warrants there shall be paid to the registered
holders of the Warrant Certificates with regard to which such fractional
Warrants would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a full Warrant. For purposes of this
Section 15(a), the current market value of a Warrant shall be the closing price
of one Warrant (as determined pursuant to paragraph (c) below) for the trading
day immediately prior to the date on which such fractional Warrant would have
been otherwise issuable.
(b) Notwithstanding any adjustment pursuant to Section 14 in the number of
Shares purchasable upon the exercise of Warrant, the Company shall not be
required to issue fractions of Shares upon exercise of the Warrants or to
distribute certificates which evidence fractional Shares. In lieu of
fractional Shares, there shall be paid to the registered holders of Warrant
Certificates at the time such Warrant Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of a share of Stock. For purposes of this Section 15(b), the current
market value of a share of Stock shall be the closing price of a share of Stock
(as determined pursuant to paragraph (c) below) for the trading day immediately
prior to the date of such exercise.
(c) The closing price for each day shall be the last sale price, regular
way, or, if no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, for such day, in either case as reported in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or, if
the Warrants or Stock, as the case may be, is not listed or admitted to trading
on such exchange, as reported on the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Warrants or Stock, respectively, is listed or
admitted to trading, or if the Warrants or Stock, as the case may be, is not
listed or admitted to trading on any national securities exchange, as reported
on NASDAQ/NMS or, if the Warrants or Stock, as the case may be, is not listed
or admitted to trading on NASDAQ/NMS, as reported on NASDAQ.
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SECTION 16. Notices to Warrantholders. Upon any adjustment of the number of
Shares purchasable upon exercise of each Warrant, the Exercise Price or the
number of Warrants outstanding pursuant to Section 14, the Company within 20
calendar days thereafter shall (i) cause to be filed with the Warrant Agent a
certificate of a firm of independent public accountants of recognized standing
selected by the Company (who may be the regular auditors of the Company)
setting forth the Exercise Price and either the number of Shares purchasable
upon exercise of each Warrant or the additional number of Warrants to be issued
for each previously outstanding Warrant, as the case may be, after such
adjustment and setting forth in reasonable detail the method of calculation and
the facts upon which such adjustment was made, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein, and
(ii) cause to be given to each of the registered holders of the Warrant
Certificates at such holder's address appearing on the Warrant Register written
notice of such adjustments by first class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as a part of the
notice required to be mailed under the other provisions of this Section 16.
Pursuant to Sections 1, 6, 7 and 8, the Company shall cause written notice of
such later Distribution Date, such later Expiration Date, such Call Price, Call
Date and Call Terms and such Reduced Exercise Price and Reduced Exercise Price
Period, as the case may be, to be given as soon as practicable to the Warrant
Agent and to each of the registered holders of the Warrant Certificates by
first class mail, postage prepaid, at such holder's address appearing on the
Warrant Register. In addition to the written notice referred to in the
preceding sentence, the Company shall make a public announcement in a daily
morning newspaper of general circulation in New York City and in Chicago of
such earlier Distribution Date, such later Expiration Date, such Call Price,
Call Date and Call Terms and such Reduced Exercise Price and Reduced Exercise
Price Period, as the case may be, at least once a week for two successive weeks
prior to the implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any securities upon
its shares of Stock or make any distribution (other than a cash dividend) to
the holders of its shares of Stock, or
(b) the Company shall offer to the holders of its shares of Stock any
additional shares of Stock or securities convertible into shares of Stock or
any right to subscribe thereto, or
(c) there shall be a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation,
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merger or sale of all or substantially all of its property, assets and business
as an entirety),
then the Company shall (i) cause written notice of such event to be filed with
the Warrant Agent and shall cause written notice of such event to be given to
each of the registered holders of the Warrant Certificates at such holder's
address appearing on the Warrant Register, by first class mail, postage
prepaid, and (ii) make a public announcement in a daily newspaper of general
circulation in New York City and in Chicago of such event, such giving of
notice and publication to be completed at least 10 calendar days (or 20
calendar days in any case specified in clause (c) above) prior to the date
fixed as a record date or the date of closing the transfer books for the
determination of the stockholders entitled to such dividend, distribution or
subscription rights, or for the determination of stockholders entitled to vote
on such proposed dissolution, liquidation or winding up. Such notice shall
specify such record date or the date of closing the transfer books, as the case
may be. The failure to give the notice required by this Section 16 or any
defect therein shall not affect the legality or validity of any distribution,
right, warrant, dissolution, liquidation or winding up or the vote upon or any
other action taken in connection therewith.
SECTION 17. Warrant Agent. The Company hereby appoints the Warrant Agent as
the Warrant Agent of the Company in respect of the Warrant Certificates upon
the terms and subject to the conditions herein set forth, and the Warrant Agent
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and by
this Agreement, and such further powers and authority to act on behalf of the
Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
SECTION 18. Conditions of Warrant Agent's Obligations. The Warrant Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates shall be
taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. Except as herein
otherwise provided, the Warrant Agent assumes no responsibility with respect to
the execution, delivery or distribution of the Warrant Certificates.
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<PAGE> 16
(b) The Warrant Agent shall not be responsible for any failure of the
Company to comply with any of the covenants contained in this Agreement or in
the Warrant Certificates to be complied with by the Company nor shall it at any
time be under any duty or responsibility to any holder of a Warrant to make or
cause to be made any adjustment in the Exercise Price or in the number of
Shares issuable upon exercise of any Warrant (except as instructed by the
Company), or to determine whether any facts exist which may require any such
adjustments, or with respect to the nature or extent of or method employed in
making any such adjustments when made.
(c) The Warrant Agent may consult at any time with counsel satisfactory to
it (who may be counsel for the Company) and the Warrant Agent shall incur no
liability or responsibility to the Company or any holder of any Warrant
Certificate in respect of any action taken, suffered or omitted by it hereunder
in good faith and in accordance with the opinion or the advice of such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to the
Company or to any holder of any Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable compensation
for all services rendered by the Warrant Agent under this Agreement, to
reimburse the Warrant Agent upon demand for all expenses, taxes and
governmental charges and other charges of any kind and nature incurred by the
Warrant Agent in the performance of its duties under this Agreement and to
indemnify the Warrant Agent and save it harmless against any and all losses,
liabilities and expenses, including judgments, costs and reasonable counsel
fees, for anything done or omitted by the Warrant Agent arising out of or in
connection with this Agreement except as a result of its negligence or bad
faith.
(f) The Warrant Agent shall be under no obligation to institute any action,
suit or legal proceeding or to take any other action likely to involve expense
unless the Company or one or more registered holders of Warrant Certificates
shall furnish the Warrant Agent with reasonable security and indemnity for any
costs or expenses which may be incurred. All rights of action under this
Agreement or under any of the Warrants may be enforced by the Warrant Agent
without the possession of any of the Warrant Certificates or the production
thereof at any trial or other proceeding relative thereto, and any such action,
suit or proceeding instituted by the Warrant Agent shall be brought in its name
as Warrant Agent, and any recovery or judgment shall be for
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<PAGE> 17
the ratable benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
(g) The Warrant Agent, and any stockholder, director, officer or employee
thereof, may buy, sell or deal in any of the Warrants or other securities of
the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though they were not the Warrant Agent
under this Agreement, or a stockholder, director, officer or employee of the
Warrant Agent, as the case may be. Nothing herein shall preclude the Warrant
Agent from acting in any other capacity for the Company or for any other legal
entity.
(h) The Warrant Agent shall act hereunder solely as agent for the Company,
and its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not be liable for anything which it may or do or refrain
from doing in connection with this Agreement except for its own negligence or
bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be
required by the Warrant Agent for the carrying out or performing of the
provisions of this Agreement.
(j) The Warrant Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due execution hereof by the Warrant Agent) or in respect of the validity or
execution of any Warrant Certificate (except its countersignature thereof), nor
shall the Warrant Agent by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of the Shares
to be issued pursuant to this Agreement or any Warrant Certificate or as to
whether the Shares will when issued be validly issued, fully paid and
nonassessable or as to the Exercise Price or the number of Shares issuable upon
exercise of any Warrant.
(k) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer, the Secretary or any Assistant Secretary of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such officer
or in good faith reliance upon any statement signed by any one of such officers
of the Company with respect to any fact or matter (unless other evidence in
respect thereof is herein
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specifically prescribed) which may be deemed to be conclusively proved and
established by such signed statement.
SECTION 19. Resignation and Appointment of Successor Warrant Agent.
(a) The Company agrees, for the benefit of the holders from time to time of
the Warrant Certificates, that at all times there shall be a Warrant Agent
hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving written
notice to the Company of such intention on its part, specifying the date on
which its desired resignation shall become effective; provided that such date
shall not be less than 60 days after the date on which such notice is given
unless the Company agrees to accept less notice. The Warrant Agent may be
removed at any time by the filing with it of an instrument in writing signed by
or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized and doing business
under the laws of the United States of America or of any State, in good
standing, and authorized under such laws to exercise corporate trust powers)
and the acceptance of such appointment by such successor Warrant Agent. Upon
its resignation or removal, the Warrant Agent shall be entitled to the payment
by the Company of the compensation agreed to under Section 18(e) hereof for,
and to the reimbursement of all reasonable out-of-pocket expenses incurred in
connection with, the services rendered hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be removed, or
shall become incapable of acting, or shall be adjudged bankrupt or insolvent,
or shall file a petition seeking relief under the Federal Bankruptcy Code, as
now constituted or hereafter amended, or under any other applicable federal or
state bankruptcy law or similar law or make an assignment for the benefit of
its creditors or consent to the appointment of a receiver or custodian of all
or any substantial part of its property, or shall admit in writing its
inability to pay or meet its debts as they mature, or if a receiver or
custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the Federal Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified in accordance with the terms
of this Agreement, shall be appointed by the Company by an instrument in
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<PAGE> 19
writing, filed with the successor Warrant Agent. Upon the appointment of a
successor Warrant Agent and acceptance by the latter of such appointment, the
Warrant Agent so superseded shall cease to be the Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
moneys, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant Agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent, provided that it shall be qualified
as aforesaid, shall be the successor Warrant Agent under this Agreement without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
SECTION 20. Warrantholder Not Deemed a Stockholder. Nothing contained in
this Agreement or in any of the Warrant Certificates shall be construed as
conferring upon the holders thereof the right to vote or to receive dividends
or to consent or to receive notice as stockholders in respect of the meetings
of stockholders or for the election of directors of the Company or any other
matter, or any rights whatsoever as stockholders of the Company.
SECTION 21. Delivery of Prospectus. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver
to such holder, prior to or concurrently with the delivery of the certificate
or certificates for the Shares issued upon such exercise, a copy of the
prospectus.
SECTION 22. Notices to Company and Warrant Agent. Any notice or demand
authorized by this Agreement to be given or made by the Warrant Agent or by any
registered holder of any Warrant
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<PAGE> 20
Certificate to or on the Company shall be sufficiently given or made if sent by
mail, first class or registered, postage prepaid, addressed (until another
address is filed in writing by the Company with the Warrant Agent), as follows:
Johnson Controls, Inc.
5757 Green Bay Avenue
Milwaukee, Wisconsin 53209
Attention: Corporate Secretary
If the Company shall fail to maintain such office or agency or shall fail to
give such notice of any change in the location thereof, presentation may be
made and notices and demands may be served at the principal office of the
Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by any
registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) to the Warrant Agent at the address set forth in the Warrant
Agreement.
SECTION 23. Supplements and Amendments. The Company and the Warrant Agent
may from time to time supplement or amend this Agreement without the approval
of any holders of Warrant Certificates in order to designate Warrants pursuant
to Section 1, to cure any ambiguity, manifest error or other mistake in this
Agreement, or to correct or supplement any provision contained herein that may
be defective or inconsistent with any other provision herein, or to make any
other provisions in regard to matters or questions arising hereunder that the
Company and the Warrant Agent may deem necessary or desirable and that shall
not adversely affect, alter or change the interests of the holders of the
Warrant Certificates.
SECTION 24. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns hereunder.
SECTION 25. Termination. This Agreement shall terminate at the close of
business on the Expiration Date. Notwithstanding the foregoing, this Agreement
will terminate on any earlier date when all Warrants have been exercised. The
provisions of Section 18 shall survive such termination.
SECTION 26. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Warrant Agent and the registered holders of the Warrant Certificates any legal
or equitable right,
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remedy or claim under this Agreement, and this Agreement shall be for the sole
and exclusive benefit of the Company, the Warrant Agent and the registered
holders of the Warrant Certificates.
SECTION 27. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and such counterparts shall together constitute but one and the
same instrument.
SECTION 28. Headings. The headings of sections of this Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 29. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
SECTION 30. Governing Law. This Agreement and each Warrant Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Wisconsin and for all purposes shall be construed in accordance with
the laws of such State.
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<PAGE> 1
EXHIBIT 4.5
_________________________________________________________________
JOHNSON CONTROLS, INC.
STANDARD DEBT SECURITIES WARRANT
AGREEMENT PROVISIONS
______________ , 1996
_________________________________________________________________
<PAGE> 2
From time to time, Johnson Controls, Inc., a Wisconsin corporation (the
"Company"), may enter into one or more warrant agreements that provide for the
issuance and sale of warrants ("Warrants") to purchase debt securities of the
Company ("Debt Securities"). The standard provisions set forth herein may be
included or incorporated by reference in any such warrant agreement (a "Warrant
Agreement"). The Warrant Agreement, including the provisions incorporated
therein by reference, is herein referred to as this "Agreement." The person
named as the "Warrant Agent" in the first paragraph of the Warrant Agreement is
herein referred to as the "Warrant Agent." Unless otherwise defined in this
Agreement or in the Warrant Agreement, as the case may be, terms defined in the
Warrant Agreement are used herein as therein defined and terms defined herein
are used in the Warrant Agreement as herein defined.
SECTION 1. Number of Warrants Unlimited; Issuable from Time to Time.
The number of Warrants which may be issued and delivered under this Agreement
is unlimited.
There shall be established in or pursuant to a resolution of the Board
of Directors of the Company or established in one or more warrant agreements
supplemental hereto, prior to the issuance of any Warrants:
(a) the offering price,
(b) the designation and terms of such Warrants and the Debt Securities
purchasable upon exercise of such Warrants,
(c) the date on which the right to exercise such Warrants shall
commence or,
(d) if the Warrants are issued together as a unit with any other
securities of the Company, the date after which the Warrants
shall be freely tradeable separately from such other securities
(the "Distribution Date") and if the Company may at its option or
under circumstances described therein provide for an earlier
Distribution Date,
(e) the Expiration Date pursuant to Section 6,
(f) the Exercise Price and any form of consideration other than
lawful money of the United States of America by which the Exercise
Price may be paid pursuant to Section 6,
(g) the Call Price, Call Date and Call Terms pursuant to Section 7,
<PAGE> 3
(h) the limitations, if any, upon the Reduced Exercise Price and the
Reduced Exercise Price Period pursuant to Section 8.
SECTION 2. Form of Warrant Certificates. The certificates evidencing
the Warrants (the "Warrant Certificates") to be delivered pursuant to this
Agreement shall be in registered form only. The Warrant Certificates shall be
in substantially such form or forms as shall be established by the Company from
time to time pursuant to one or more resolutions of the Board of Directors of
the Company or in one or more warrant agreements supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Agreement, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange or
as may, consistently herewith, be determined by the officers executing such
Warrants, as evidenced by their execution of the Warrants.
SECTION 3. Execution of Warrant Certificates. Warrant Certificates
shall be signed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, a Vice President or its Treasurer and
attested by its Secretary or Assistant Secretary, under its corporate seal.
Each such signature upon the Warrant Certificates may be in the form of a
facsimile signature of the current or any future Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary and may be imprinted or otherwise reproduced on the Warrant
Certificates and for that purpose the Company may adopt and use the facsimile
signature of any person who shall have been Chairman of the Board, Chief
Executive Officer, President, Vice President, Treasurer, Secretary or Assistant
Secretary, notwithstanding the fact that at the time the Warrant Certificates
shall be countersigned and delivered or disposed of such person shall have
ceased to hold such office. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Warrant Certificates.
If any officer of the Company who shall have signed any of the Warrant
Certificates shall cease to be such officer before the Warrant Certificates so
signed shall have been countersigned by the Warrant Agent or disposed of by the
Company, such Warrant Certificates nevertheless may be countersigned and
delivered or disposed of as though such person had not ceased to be such
officer of the Company; and any Warrant Certificate may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Warrant Certificate, shall be a proper officer of the Company to sign such
Warrant Certificate, although at the date
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of the execution of this Agreement any such person was not such officer.
SECTION 4. Registration and Countersignature. Warrant Certificates
shall be manually countersigned and dated the date of countersignature by the
Warrant Agent and shall not be valid for any purpose unless so countersigned.
The Warrants shall be numbered and shall be registered in a register (the
"Warrant Register") to be maintained by the Warrant Agent.
The Company and the Warrant Agent may deem and treat the registered
holder of a Warrant Certificate as the absolute owner thereof (notwithstanding
any notation of ownership or other writing thereon made by anyone), for the
purpose of any exercise thereof or any distribution to the holder thereof and
for all other purposes, and neither the Company nor the Warrant Agent shall be
affected by any notice to the contrary.
SECTION 5. Registration of Transfers and Exchanges. The Warrant Agent
shall from time to time register the transfer of any outstanding Warrant
Certificates in the Warrant Register, upon surrender of such Warrant
Certificates, duly endorsed, and accompanied by a written instrument or
instruments of transfer in form satisfactory to the Warrant Agent, duly signed
by the registered holder or holders thereof or by the duly appointed legal
representative thereof or by a duly authorized attorney, such signature to be
guaranteed by (a) a bank or trust company, (b) a broker or dealer that is a
member of the National Association of Securities Dealers, Inc. (the "NASD") or
(c) a member of a national securities exchange. Upon any such registration of
transfer, a new Warrant Certificate shall be issued to the transferee.
Warrant Certificates may be exchanged at the option of the holder or
holders thereof, when surrendered to the Warrant Agent at its offices or agency
maintained for the purpose of exchanging, transferring and exercising the
Warrants (a "Warrant Agent Office") or at the offices of any successor Warrant
Agent as provided in Section 16 hereof, for another Warrant Certificate or
other Warrant Certificates of like tenor representing in the aggregate a like
number of Warrants.
The Warrant Agent is hereby authorized to countersign, in accordance
with the provisions of this Section 5 and of Section 4, and deliver the new
Warrant Certificates required pursuant to the provisions of this Section.
No service charge shall be made for any exchange or registration of
transfer of Warrant Certificates, but the Company may require payment of a sum
sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange or registration of
transfer. Whenever any
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<PAGE> 5
Warrant Certificates are surrendered for exchange or registration of transfer,
an authorized officer of the Warrant Agent shall mutually countersign and
deliver to the person or persons entitled thereto a Warrant Certificate or
Warrant Certificates duly authorized and executed by the Company, as so
requested. The Warrant Agent shall not be required to effect any exchange or
registration of transfer that will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligations
of the Company, evidencing the same obligations and entitled to the same
benefits under this Agreement as the Warrant Certificates surrendered for such
exchange or registration of transfer.
SECTION 6. Duration and Exercise of Warrants.
(a) The Warrants shall expire on (i) the close of business on the
date set forth pursuant to Section 1, or (ii) such later date as shall be
determined in the sole discretion of the Company, in a written statement to the
Warrant Agent and with notice to registered holders of Warrants in the manner
provided for in Section 13 (such date of expiration being herein referred to as
the "Expiration Date"). On and after the Distribution Date, each Warrant may
be exercised on any business day on or prior to the close of business on the
Expiration Date. After the close of business on the Expiration Date, the
Warrants will become void and of no value.
(b) Subject to the provisions of this Agreement, the holder of each
Warrant shall have the right to purchase from the Company (and the Company
shall issue and sell to such holder of a Warrant) Debt Securities at the price
set forth pursuant to Section 1 (such price being the "Exercise Price") upon
depositing with the Warrant Agent at a Warrant Agent Office the Warrant
Certificate evidencing such Warrant, with the form of election to purchase on
the reverse thereof duly completed and signed by the registered holder or
holders thereof or by the duly appointed legal representative thereof or by a
duly authorized attorney, such signature to be guaranteed by a bank or trust
company, by a broker or dealer which is a member of NASD or by a member of a
national securities exchange, and upon payment of the Exercise Price for the
number of Shares in respect of which such Warrant are being exercised. Unless
otherwise provided pursuant to Section 1, payment of the aggregate Exercise
Price shall be made in lawful money of the United States of America. If the
Warrant Agent receives moneys in payment of the purchase price for Warrants,
the Warrant Agent shall deposit all funds received by it in the account of the
Company maintained with it for such purpose. If the Warrant Agent receives
consideration other than moneys for Warrants, the Warrant Agent shall deliver
such consideration directly to the Company. In
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<PAGE> 6
either case, the Warrant Agent shall advise the Company by telex or telecopy at
the end of each day as to the Warrant Certificates that have been exercised and
the amount of moneys deposited to its account or the type and amount of other
consideration to be delivered to it.
(c) The Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company and the Trustee of (i) the number of Warrants
exercised, (ii) the instructions of each holder of the Warrant Certificates
evidencing such Warrants with respect to delivery of the Debt Securities to
which such holder is entitled upon such exercise, (iii) delivery of Warrant
Certificates evidencing the balance, if any, of the Warrants remaining after
such exercise and (iv) such other information as the Company or the Trustee
shall reasonably require.
(d) A Warrant Certificate may be exercised in part to purchase Debt
Securities only in the denominations authorized pursuant to the indenture under
which the Debt Securities are issued (the "Indenture").
(e) Subject to Section 10, upon such surrender of a Warrant
Certificate and as soon as practicable after receipt of payment of the Exercise
Price and the Warrant Certificate properly completed and duly executed at a
Warrant Agent Office of the Warrant Agent, the Company shall issue, pursuant to
the Indenture, to or upon the order of the holder of such Warrant Certificate,
the Debt Securities in authorized denominations to which such holder is
entitled, in fully registered form in such name or names as may be directed by
such holder. The Warrants evidenced by a Warrant Certificate shall be
exercisable, at the election of the registered holder thereof, either as an
entirety or from time to time for a portion of the number of Warrants specified
in the Warrant Certificate. If less than all of the Warrants evidenced by a
Warrant Certificate surrendered upon the exercise of Warrants are exercised at
any time prior to the date of expiration for the Warrants and if sufficient
time remains prior to the Expiration Date, a new Warrant Certificate or
Certificates shall be issued for the remaining number of Warrants evidenced by
the Warrant Certificate so surrendered, and the Warrant Agent is hereby
authorized to countersign the required new Warrant Certificate or Certificates
pursuant to the provisions of Section 5 and this Section 6.
SECTION 7. Call of Warrants by the Company. If so provided in the
Warrant Agreement, the Company shall have the right to call and repurchase any
or all Warrants at the price (the "Call Price") and on or after the date (the
"Call Date") and upon the terms (the "Call Terms") as shall be set forth
pursuant to Section 1. Notice of such Call Price, Call Date and Call Terms
shall be
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<PAGE> 7
given to registered holders of Warrants in the manner provided in Section 13.
SECTION 8. Optional Reduction of Exercise Price. Subject to the
limits, if any, set forth pursuant to Section 1, the Company shall have the
right, at any time or from time to time, voluntarily to reduce the then current
Exercise Price to such amount (the "Reduced Exercise Price") and for such
period or periods of time, which may be through the close of business on the
Expiration Date (the "Reduced Exercise Price Period"), as may be deemed
appropriate by the Company. Notice of any such Reduced Exercise Price and
Reduced Exercise Price Period shall be given to registered holders of Warrants
in the manner provided in Section 13. After the termination of the Reduced
Exercise Price Period, the Exercise Price shall be such Exercise Price that
would have been in effect had there been no reduction in the Exercise Price
pursuant to the provisions of this Section 8.
SECTION 9. Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exercise, registration of transfer or exchange
shall, if surrendered to the Company, be delivered to the Warrant Agent, and
all Warrant Certificates surrendered or so delivered to the Warrant Agent shall
be promptly canceled by the Warrant Agent and shall not be reissued and, except
as expressly permitted by this Agreement, no Warrant Certificate shall be
issued hereunder in lieu thereof. The Warrant Agent shall deliver to the
Company from time to time, or otherwise dispose of, canceled Warrant
Certificates in a manner satisfactory to the Company.
SECTION 10. Payment of Taxes. The Company will pay all documentary
stamp taxes attributable to the initial issuance of Warrants and of Debt
Securities upon the exercise of Warrants; provided, however, that the Company
shall not be required to pay any tax or taxes which may be payable in respect
of any transfer involved in the issue of any Warrant Certificates or any
certificates for Debt Securities in a name other than the registered holder of
a Warrant Certificate surrendered upon the exercise of a Warrant, and the
Company shall not be required to issue or deliver such certificates unless or
until the person or persons requesting the issuance thereof shall have paid to
the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION 11. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Company and the Warrant Agent of evidence reasonably
satisfactory to them of the ownership and the loss, theft, destruction or
mutilation of the Warrant Certificate, and of indemnity reasonably satisfactory
to them, and, in the case of mutilation, upon surrender thereof to the Warrant
Agent for cancellation, then, in the absence of notice to the Company or the
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<PAGE> 8
Warrant Agent that such Warrant Certificate has been acquired by a bona fide
purchaser, the Company shall execute, and an authorized officer of the Warrant
Agent shall manually countersign and deliver, in exchange for or in lieu of the
lost, stolen, destroyed or mutilated Warrant Certificate, a new Warrant
Certificate of the same tenor and for a like number of Warrants. Upon the
issuance of any new Warrant Certificate under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expense (including
the fees and expenses of the Warrant Agent) in connection therewith. Every
substitute Warrant Certificate executed and delivered pursuant to this Section
in lieu of any lost, stolen or destroyed Warrant Certificate shall constitute
an additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed and
delivered hereunder. The provisions of this Section are exclusive and shall
preclude (to the extent lawful) any and all other rights or remedies with
respect to the replacement of mutilated, lost, stolen or destroyed Warrant
Certificates.
SECTION 12. Obtaining of Governmental Approvals. The Company will
from time to time take all action that may be necessary to obtain and keep
effective any and all permits, consents and approvals of governmental agencies
and authorities and securities acts filings under federal and state laws, which
may be or become requisite in connection with the issuance, sale, transfer and
delivery of the Warrant Certificates, the exercise of the Warrants, and the
issuance, sale, transfer and delivery of the Debt Securities issued upon
exercise of the Warrants or upon the expiration of the period during which the
Warrants are exercisable.
SECTION 13. Notices to Warrantholders. Pursuant to Sections 1, 6, 7
and 8, the Company shall cause written notice of such later Distribution Date,
such later Expiration Date, such Call Price, Call Date and Call Terms and such
Reduced Exercise Price and Reduced Exercise Price Period, as the case may be,
to be given as soon as practicable to the Warrant Agent and to each of the
registered holders of the Warrant Certificates by first class mail, postage
prepaid, at such holder's address appearing on the Warrant Register. In
addition to the written notice referred to in the preceding sentence, the
Company shall make a public announcement in a daily morning newspaper of
general circulation in New York City and in Chicago of such earlier
Distribution Date, such later Expiration Date, such Call Price, Call Date and
Call Terms and such Reduced Exercise Price and Reduced Exercise Period, as the
case may be, at least once a week for two successive weeks prior to the
implementation of such terms.
-7-
<PAGE> 9
SECTION 14. Warrant Agent. The Company hereby appoints the Warrant
Agent as the Warrant Agent of the Company in respect of the Warrant
Certificates upon the terms and subject to the conditions herein set forth, and
the Warrant Agent hereby accepts such appointment. The Warrant Agent shall
have the powers and authority granted to and conferred upon it in the Warrant
Certificates and by this Agreement, and such further powers and authority to
act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Warrant Certificates are subject to and governed by
the terms and provisions hereof.
SECTION 15. Conditions of Warrant Agent's Obligations. The Warrant
Agent undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Warrants, by their acceptance thereof, shall be bound:
(a) The statements contained herein and in the Warrant Certificates
shall be taken as statements of the Company, and the Warrant Agent assumes no
responsibility for the correctness of any of the same except such as describe
the Warrant Agent or action taken or to be taken by it. Except as herein
otherwise provided, the Warrant Agent assumes no responsibility with respect to
the execution, delivery or distribution of the Warrant Certificates.
(b) The Warrant Agent shall have no duty or responsibility in case of
any default by the Company in the performance of its covenants or agreements
contained in the Warrant Certificates or the Indenture or in the case of the
receipt of any written demand from a holder of a Warrant Certificate with
respect to such default, including any duty or responsibility to initiate or
attempt to initiate any proceedings at law or otherwise or to make any demand
upon the Company.
(c) The Warrant Agent may consult at any time with counsel
satisfactory to it (who may be counsel for the Company) and the Warrant Agent
shall incur no liability or responsibility to the Company or any holder of any
Warrant Certificate in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with the opinion or the advice of
such counsel.
(d) The Warrant Agent shall incur no liability or responsibility to
the Company or to any holder of any Warrant Certificate for any action taken in
reliance on any notice, resolution, waiver, consent, order, certificate or
other paper, document or instrument believed by it to be genuine and to have
been signed, sent or presented by the proper party or parties.
(e) The Company agrees to pay to the Warrant Agent reasonable
compensation for all services rendered by the Warrant Agent under
-8-
<PAGE> 10
this Agreement, to reimburse the Warrant Agent upon demand for all expenses,
taxes and governmental charges and other charges of any kind and nature
incurred by the Warrant Agent in the performance of its duties under this
Agreement and to indemnify the Warrant Agent and save it harmless against any
and all losses, liabilities and expenses, including judgments, costs and
reasonable counsel fees, for anything done or omitted by the Warrant Agent
arising out of or in connection with this Agreement except as a result of its
negligence or bad faith.
(f) The Warrant Agent shall be under no obligation to institute any
action, suit or legal proceeding or to take any other action likely to involve
expense unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security and
indemnity for any costs or expenses which may be incurred. All rights of
action under this Agreement or under any of the Warrants may be enforced by the
Warrant Agent without the possession of any of the Warrant Certificates or the
production thereof at any trial or other proceeding relative thereto, and any
such action, suit or proceeding instituted by the Warrant Agent shall be
brought in its name as Warrant Agent, and any recovery or judgment shall be for
the ratable benefit of the registered holders of the Warrants, as their
respective rights or interests may appear.
(g) The Warrant Agent and its officers, directors and employees may
act as Trustee under the Indenture and may become the owner of, or acquire any
interest in, any Warrant Certificates, with the same rights that it or they
would have if it were not the Warrant Agent hereunder, and, to the extent
permitted by applicable law, they may engage or be interested in any financial
or other transaction with the Company and may act on, or as depositary, trustee
or agent for, any committee or body of holders of the Debt Securities or other
obligations of the Company as freely as if it were not the Warrant Agent.
Nothing herein shall preclude the Warrant Agent from acting in any other
capacity for the Company or for any other legal entity.
(h) The Warrant Agent shall act hereunder solely as agent for the
Company, and its duties shall be determined solely by the provisions hereof.
The Warrant Agent shall not be liable for anything which it may or do or
refrain from doing in connection with this Agreement except for its own
negligence or bad faith.
(i) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be
required by the Warrant Agent for the carrying out or performing of the
provisions of this Agreement.
-9-
<PAGE> 11
(j) The Warrant Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Warrant Agent) or in respect of the validity or
execution of any Warrant Certificate (except its countersignature thereof).
(k) The Warrant Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer, the Secretary or any Assistant Secretary of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such officer
or in good faith reliance upon any statement signed by any one of such officers
of the Company with respect to any fact or matter (unless other evidence in
respect thereof is herein specifically prescribed) which may be deemed to be
conclusively proved and established by such signed statement.
(l) Except as set forth in the Warrant Agreement, the Warrant Agent
shall not be under any liability for interest on any moneys or other
consideration at any time received by it pursuant to any of the provisions of
this Agreement or of the Warrant Certificates.
SECTION 16. Resignation and Appointment of Successor Warrant Agent.
(a) The Company agrees, for the benefit of the holders from time to
time of the Warrant Certificates, that at all times there shall be a Warrant
Agent hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the
date on which its desired resignation shall become effective; provided that
such date shall not be less than 60 days after the date on which such notice is
given unless the Company agrees to accept less notice. The Warrant Agent may
be removed at any time by the filing with it of an instrument in writing signed
by or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized and doing business
under the laws of the United States of America or of any State, in good
standing, and authorized under such laws to exercise corporate trust powers)
and the acceptance of such appointment by such successor Warrant Agent. Upon
its resignation or removal, the Warrant Agent shall be entitled to the payment
by the Company of the compensation agreed to under Section 15(e) hereof for,
and to the reimbursement of all
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<PAGE> 12
reasonable out-of-pocket expenses incurred in connection with, the services
rendered hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be
removed, or shall become incapable of acting, or shall be adjudged bankrupt or
insolvent, or shall file a petition seeking relief under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy law or similar law or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver or
custodian of all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or if a receiver
or custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the Federal Bankruptcy Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law or if any
public officer shall have taken charge or control of the Warrant Agent or of
its property or affairs, for the purpose of rehabilitation, conservation or
liquidation, a successor Warrant Agent, qualified in accordance with the terms
of this Agreement, shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment of a
successor Warrant Agent and acceptance by the latter of such appointment, the
Warrant Agent so superseded shall cease to be the Warrant Agent hereunder.
(d) Any successor warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with
all the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay
over, and such successor Warrant Agent shall be entitled to receive, all
moneys, securities and other property on deposit with or held by such
predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be
merged or converted or any corporation with which the Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Warrant Agent shall be a party, or any corporation
to which the Warrant Agent shall sell or otherwise transfer all or
substantially all the assets and business of the Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Warrant Agent under
this Agreement without the execution or filing of any paper or any further act
on the part of any of the parties hereto.
-11-
<PAGE> 13
SECTION 17. No Rights as Securityholders Conferred by Warrant
Certificates. No Warrant Certificate shall entitle the holder thereof to any of
the rights of a holder of Debt Securities, including the right to receive the
payment of principal of, or interest on, the Debt Securities or to enforce any
of the covenants of the Debt Securities or the Indenture except as otherwise
provided in the Indenture.
SECTION 18. Delivery of Prospectus. If the Company is required under
applicable federal or state securities laws to deliver a prospectus upon
exercise of Warrants, the Company will furnish to the Warrant Agent sufficient
copies of a prospectus, and the Warrant Agent agrees that upon the exercise of
any Warrant Certificate by the holder thereof, the Warrant Agent will deliver
to such holder, prior to or concurrently with the delivery of the Debt
Securities issued upon such exercise, a copy of the prospectus.
SECTION 19. Notices to Company and Warrant Agent. Any notice or
demand authorized by this Agreement to be given or made by the Warrant Agent or
by any registered holder of any Warrant Certificate to or on the Company shall
be sufficiently given or made if sent by mail, first class or registered,
postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent), as follows:
Johnson Controls, Inc.
5757 Green Bay Avenue
Milwaukee, Wisconsin 53209
Attention: Corporate Secretary
If the Company shall fail to maintain such office or agency or shall
fail to give such notice of any change in the location thereof, presentation
may be made and notices and demands may be served at the principal office of
the Warrant Agent.
Any notice pursuant to this Agreement to be given by the Company or by
any registered holder of any Warrant Certificate to the Warrant Agent shall be
sufficiently given if sent by mail, first class or registered, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company) to the Warrant Agent at the address set forth in the Warrant
Agreement.
SECTION 20. Supplements and Amendments. The Company and the Warrant
Agent may from time to time supplement or amend this Agreement without the
approval of any holders of Warrant Certificates in order to designate Warrants
pursuant to Section 1, to cure any ambiguity, manifest error or other mistake
in this Agreement, or to correct or supplement any provision contained herein
that may be defective or inconsistent with any other
-12-
<PAGE> 14
provision herein, or to make any other provisions in regard to matters or
questions arising hereunder that the Company and the Warrant Agent may deem
necessary or desirable and that shall not adversely affect, alter or change the
interests of the holders of the Warrant Certificates.
SECTION 21. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Warrant Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 22. Termination. This Agreement shall terminate at the close
of business on the Expiration Date. Notwithstanding the foregoing, this
Agreement will terminate on any earlier date when all Warrants have been
exercised. The provisions of Section 15 shall survive such termination.
SECTION 23. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the Company,
the Warrant Agent and the registered holders of the Warrant Certificates any
legal or equitable right, remedy or claim under this Agreement, and this
Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the registered holders of the Warrant Certificates.
SECTION 24. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and such counterparts shall together constitute but
one and the same instrument.
SECTION 25. Headings. The headings of sections of this Agreement have
been inserted for convenience of reference only, are not to be considered a
part hereof and shall in no way modify or restrict any of the terms or
provisions hereof.
SECTION 26. Inspection of Agreement. A copy of this Agreement shall
be available at all reasonable times at the principal corporate trust office of
the Warrant Agent for inspection by the holder of any Warrant Certificate. The
Warrant Agent may require such holder to submit his Warrant Certificate for
inspection by it.
SECTION 27. Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Wisconsin and for all purposes shall be construed in
accordance with the laws of such State.
-13-
<PAGE> 1
EXHIBIT 5
October 4, 1996
Johnson Controls, Inc.
5757 Green Bay Avenue
Milwaukee, Wisconsin 53209
Ladies and Gentlemen:
I refer to the registration statement on Form S-3 (the "Registration
Statement") being filed by Johnson Controls, Inc., a Wisconsin corporation (the
"Company"), and the corporate proceedings (the "Corporate Proceedings") taken
and to be taken relating to the offering pursuant to Rule 415 under the
Securities Act of 1933, as amended, of the following securities (the
"Securities") of the Company having an aggregate initial offering price of up
to $1,500,000,000: (i) common stock, $.16 2/3 par value per share (the "Common
Stock"), of the Company; (ii) preferred stock, $1.00 par value per share (the
"Preferred Stock") of the Company, (iii) debt securities (the "Debt
Securities") of the Company and (iv) warrants to purchase Common Stock,
Preferred Stock or Debt Securities (collectively, the "Warrants") of the
Company.
The Debt Securities are to be issued under an indenture, dated as of
February 22, 1995 (the "Senior Indenture"), between the Company and Chase
Manhattan Bank Delaware (formerly known as Chemical Bank Delaware), as trustee
(the "Senior Trustee") or a new indenture (the "Subordinated Indenture",
together with the Senior Indenture, the "Indentures") to be entered into
between the Company and Chase Manhattan Bank Delaware, as trustee (the
"Subordinated Trustee"). The Preferred Stock is to be issued under the
Restated Articles of Incorporation (the "Articles of Incorporation"), of the
Company and articles of amendment (the "Articles of Amendment") to the Articles
of Incorporation to be adopted by the Board of Directors of the Company and
filed with the Secretary of State of the State of Wisconsin (the "Wisconsin
Secretary of State") pursuant to Section 180.0602 of the Wisconsin Business
Corporation Law (the "WBCL"). The Common Stock is to be issued under the
Articles of Incorporation. The Warrants are to be issued under one or more
warrant agreements (each, a "Warrant Agreement") to be entered into between the
<PAGE> 2
Company and warrant agents to be named by the Company.
Certain terms of the Securities to be issued by the Company from time
to time will be approved by the Board of Directors of the Company or a
committee thereof as part of the Corporate Proceedings in connection with the
issuance of the Securities. I have examined or are otherwise familiar with the
Articles of Incorporation, the By-Laws of the Company, as amended, the
Registration Statement, the Corporate Proceedings and such other documents,
records and instruments as I have deemed necessary or appropriate for purposes
of this opinion.
Based on the foregoing, I am of the opinion that: (i) the Senior
Indenture has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Senior Trustee,
constitutes a valid and binding instrument of the Company, enforceable against
the Company in accordance with its terms; (ii) the Subordinated Indenture, when
duly authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Subordinated Trustee, and
completion of all Corporate Proceedings, will constitute a valid and binding
instrument of the Company, enforceable against the Company in accordance with
its terms; (iii) upon the execution and delivery of the applicable Warrant
Agreement, the completion of all Corporate Proceedings, the execution,
authentication, issuance and delivery of the Debt Securities or the Warrants
and the payment therefor, respectively, pursuant to either of the Indentures or
the applicable Warrant Agreement, such Warrant Agreement, as the case may be,
will become a valid and binding instrument of the Company, enforceable against
the Company in accordance with its respective terms, and the Securities
issuable under either of the Indentures or the Warrant Agreement, as the case
may be, will be legal, valid and binding obligations of the Company, entitled
to the benefits of the Indentures or the applicable Warrant Agreement,
respectively; (iv) upon the authorization, execution, delivery and filing with,
and recording by, the Wisconsin Secretary of State of the Articles of
Amendment, the completion of all Corporate Proceedings, the execution,
authentication, issuance and delivery of the Preferred Stock and payment
therefor pursuant to such Articles of Amendment, the Preferred Stock will be
duly and validly authorized and issued, fully paid and nonassessable, except as
provided by Section 180.0622(2)(b) of the WBCL; and (v) upon the authorization
of issuance of the Common Stock, the completion of all Corporate Proceedings,
the execution, authentication, issuance and delivery of the Common Stock and
payment therefor, the Common Stock will be duly and validly authorized and
issued, fully paid and nonassessable, except as provided by Section
180.0622(2)(b) of the WBCL; including in each case such terms for such
Securities as are established pursuant to the Corporate Proceedings in
accordance
<PAGE> 3
Johnson Controls, Inc.
October 4, 1996
Page 3
with the respective terms thereof; and, except in each case as enforcement of
provisions of such instruments and agreements may be limited by bankruptcy or
other laws of general application affecting the enforcement of creditors'
rights and by general equity principles.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to me under the caption "Legal
Opinions" therein.
Very truly yours,
/s/ JOHN P. KENNEDY
---------------------------------
John P. Kennedy
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report
dated October 23, 1995, which appears on page 39 of the 1995 Annual Report to
Shareholders of Johnson Controls, Inc., which is incorporated by reference in
Johnson Controls, Inc.'s Annual Report on Form 10-K for the year ended
September 30, 1995. We also consent to the incorporation by reference of our
report on the Financial Statement Schedules, which appears on page 28 of such
Annual Report on Form 10-K. We also consent to the reference to us under the
heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
Milwaukee, WI
October 4, 1996
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) of Johnson Controls, Inc. for the
registration of up to $1,500,000,000 of securities on terms to be determined at
the time of offering, and to the incorporation by reference therein of our
report dated October 30, 1995 (except Notes A and C, as to which the date is
September 26, 1996), with respect to the combined financial statements of
Prince Holding Corporation for the fiscal years ended September 30, 1995 and
October 1, 1994 included in the Current Report on Form 8-K of Johnson Controls,
Inc. to be filed with the Securities and Exchange Commission on or about
October 4, 1996.
ERNST & YOUNG LLP
Grand Rapids, Michigan
October 1, 1996
<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
----------------------
CHASE MANHATTAN BANK DELAWARE
(Exact name of trustee as specified in its charter)
Delaware 51-0266457
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1201 Market Street,
Wilmington, Delaware 19801
(Address of principal executive offices) (Zip Code)
David J. Clark
Counsel
1201 Market Street
Wilmington, DE 19801
(302) 428-3330
(Name, address and telephone number
of agent for service)
----------------------
JOHNSON CONTROLS, INC.
(Exact name of obligor as specified in its charter)
Delaware 39-0380018
(State or other jurisdiction of (I.R.S. employer
incorporation or organization identification No.)
5757 North Green Bay Avenue 53209
Milwaukee, Wisconsin (Zip Code)
(Address of principal executive offices)
----------------------
Senior 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.
Office of The State Bank Commissioner,
555 East Lockerman Street
Suite 210, Dover, DE 19901
Federal Deposit Insurance Corporation,
New York Regional Office
452 Fifth Avenue, 21st Floor, New York, New York 10018-2796
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
<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 25, 1988 and June 22, 1992 (see Exhibit to Form T-1
filed in connection with Registration Statement No. 33-58124, which is
incorporated by reference) and the Certificate of Amendment of Chemical Bank
Delaware changing its name to Chase Manhattan Bank Delaware effective July 15,
1996 (attached hereto).
2. A copy of the Certificate of Authority of the Trustee
to Transact Business (see Exhibit 2 to form T-1 filed in connection with
Registration Statement No. 33-33595 which is incorporated by reference).
3. None, authorization to exercise corporate trust powers
being contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration Statement No.
33-58124, 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. 33-33595, which is incorporated by reference).
7. A copy of the latest report of condition of Chemical
Bank Delaware, 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, Chase Manhattan Bank Delaware, a corporation organized and existing
under the laws of the State of Delaware, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of Wilmington and State of Delaware, on the 2nd day
of October, 1996.
Chase Manhattan Bank Delaware
By: John J. Cashin
---------------------------
John J. Cashin
Senior Trust Officer
<PAGE> 4
Exhibit 1
CERTIFICATE OF AMENDMENT
OF THE
ARTICLES OF ASSOCIATION
OF
CHEMICAL BANK DELAWARE
The undersigned, being the President of Chemical Bank Delaware hereby
certifies that:
FIRST: The name of the corporation is Chemical Bank Delaware.
SECOND: The Certificate of Incorporation and Articles of Organization
were filed in the Office of Secretary of State on July 23,1982 and amended on
February 25, 1988, October 4,1991 and June 22, 1992.
THIRD: Paragraph FIRST of the Articles of Association is hereby
amended by changing the name of the corporation from Chemical Bank Delaware to
Chase Manhattan Bank Delaware, effective July 15, 1996.
FOURTH: The foregoing amendment has been duly adopted in accordance
with Title 8, Sections 228 and 242. and Title 5, Section 749 of the Delaware
Code.
IN WITNESS WHEREOF, the undersigned, President of Chemical Bank
Delaware, has signed this instrument under the seal of the Corporation and
affirms that this is an authorized act and deed of the Corporation and that the
facts stated herein are true.
JULY 8,1996
Attest: David J. Clark Richard J. Nolan, Jr.
--------------- ---------------------
David J. Clark, Secretary Richard J. Nolan, Jr., President
APPROVED as to SUBSTANCE AND FORM pursuant to 5 Del.C. Section 749
Timothy R. McTaggart
------------------------
Timothy R. McTaggart
State Bank Commissioner
<PAGE> 5
EXHIBIT 7
REPORT OF CONDITION
Consolidated Report of Condition of CHEMICAL BANK DELAWARE of Wilmington,
Delaware and Foreign and Domestic Subsidiaries, at the close of business on
June 30, 1995, published in accordance with a call made by the State Bank
Commissioner under Title 5, Delaware Code, Section 904.
Statement of Resources and Liabilities
<TABLE>
<CAPTION>
Thousands of Dollars
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin $ 15,670
Interest-bearing balances 162,627
Securities:
Held-to-maturity securities 55,422
Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold 178,500
Loans and lease financing receivables:
Loans and leases, net of unearned income 8,185
LESS: Allowances for loan and lease losses 6,487
Loans and leases, net of unearned income, allowance, and reserve 1,698
Premises and fixed assets (including capitalized leases) 39,039
Customers' liability to this bank on acceptances outstanding 2,758
Other assets 18,115
--------
TOTAL ASSETS $473,829
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices $259,768
Noninterest-bearing 47,516
Interest-bearing 212,252
In foreign offices, Edge and Agreement subsidiaries, and IBFs 53,298
Interest-bearing 53,298
Federal funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFS:
Federal funds purchased 4
Demand notes issued to the U.S. Treasury 5,337
Other borrowed money:
With original maturity of one year or less 267
Mortgage indebtedness and obligations under capitalized leases 845
Bank's liability on acceptances executed and outstanding 2,758
Other liabilities 32,545
--------
TOTAL LIABILITIES $354,822
EQUITY CAPITAL
Common stock $ 25,000
Surplus 51,002
Undivided profits and capital reserves 43,005
--------
Total equity capital 119,007
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL $473,829
</TABLE>
I, Christopher M. Marini, 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
and correct to the best of my knowledge and belief.
Christopher M. Marini
July 31,1995
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.
Richard J. Nolan, Jr.
Glenn S. Havlicek
Joseph L. Sciatani
Directors
<PAGE> 1
Exhibit 25.2
================================================================================
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
-------------------------
CHASE MANHATTAN BANK DELAWARE
(Exact name of trustee as specified in its charter)
Delaware 51-0266457
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
1201 Market Street,
Wilmington, Delaware 19801
(Address of principal executive offices) (Zip Code)
David J. Clark
Counsel
1201 Market Street
Wilmington, DE 19801
(302) 428-3330
(Name, address and telephone number
of agent for service)
-------------------------
JOHNSON CONTROLS, INC.
(Exact name of obligor as specified in its charter)
Delaware 39-0380018
(State or other jurisdiction of (I.R.S. employer
incorporation or organization identification No.)
5757 North Green Bay Avenue 53209
Milwaukee, Wisconsin (Zip Code)
(Address of principal executive offices)
-------------------------
Subordinated 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.
Office of The State Bank Commissioner,
555 East Lockerman Street
Suite 210, Dover, DE 19901
Federal Deposit Insurance Corporation,
New York Regional Office
452 Fifth Avenue, 21st Floor, New York,
New York 10018-2796
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
<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 25, 1988 and June 22, 1992 (see Exhibit to Form T-1
filed in connection with Registration Statement No. 33-58124, which is
incorporated by reference) and the Certificate of Amendment of Chemical Bank
Delaware changing its name to Chase Manhattan Bank Delaware effective July 15,
1996 (attached hereto).
2. A copy of the Certificate of Authority of the Trustee
to Transact Business (see Exhibit 2 to form T-1 filed in connection with
Registration Statement No. 33-33595 which is incorporated by reference).
3. None, authorization to exercise corporate trust powers
being contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration Statement No.
33-58124, 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. 33-33595, which is incorporated by reference).
7. A copy of the latest report of condition of Chemical
Bank Delaware, 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, Chase Manhattan Bank Delaware, a corporation organized and existing
under the laws of the State of Delaware, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of Wilmington and State of Delaware, on the 2nd day
of October, 1996.
Chase Manhattan Bank Delaware
By: John J. Cashin
-------------------------------
John J. Cashin
Senior Trust Officer
<PAGE> 4
Exhibit 1
CERTIFICATE OF AMENDMENT
OF THE
ARTICLES OF ASSOCIATION
OF
CHEMICAL BANK DELAWARE
The undersigned, being the President of Chemical Bank Delaware hereby
certifies that:
FIRST: The name of the corporation is Chemical Bank Delaware.
SECOND: The Certificate of Incorporation and Articles of Organization
were filed in the Office of Secretary of State on July 23,1982 and amended on
February 25, 1988, October 4,1991 and June 22, 1992.
THIRD: Paragraph FIRST of the Articles of Association is hereby
amended by changing the name of the corporation from Chemical Bank Delaware to
Chase Manhattan Bank Delaware, effective July 15, 1996.
FOURTH: The foregoing amendment has been duly adopted in accordance
with Title 8, Sections 228 and 242. and Title 5, Section 749 of the Delaware
Code.
IN WITNESS WHEREOF, the undersigned, President of Chemical Bank
Delaware, has signed this instrument under the seal of the Corporation and
affirms that this is an authorized act and deed of the Corporation and that the
facts stated herein are true.
JULY 8,1996
Attest: David J. Clark Richard J. Nolan, Jr.
-------------------------------- --------------------------
David J. Clark, Secretary Richard J. Nolan, Jr., President
APPROVED as to SUBSTANCE AND FORM pursuant to 5 Del.C. Section 749
Timothy R. McTaggart
--------------------------
Timothy R. McTaggart
State Bank Commissioner
<PAGE> 5
EXHIBIT 7
REPORT OF CONDITION
Consolidated Report of Condition of CHEMICAL BANK DELAWARE of Wilmington,
Delaware and Foreign and Domestic Subsidiaries, at the close of business on
June 30, 1995, published in accordance with a call made by the State Bank
Commissioner under Title 5, Delaware Code, Section 904.
Statement of Resources and Liabilities
<TABLE>
<CAPTION>
Thousands of Dollars
<S> <C>
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin $ 15,670
Interest-bearing balances 162,627
Securities:
Held-to-maturity securities 55,422
Federal funds sold and securities purchased under agreements to resell in
domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds sold 178,500
Loans and lease financing receivables:
Loans and leases, net of unearned income 8,185
LESS: Allowances for loan and lease losses 6,487
Loans and leases, net of unearned income, allowance, and reserve 1,698
Premises and fixed assets (including capitalized leases) 39,039
Customers' liability to this bank on acceptances outstanding 2,758
Other assets 18,115
--------
TOTAL ASSETS $473,829
</TABLE>
<PAGE> 6
<TABLE>
<S> <C>
LIABILITIES
Deposits:
In domestic offices $259,768
Noninterest-bearing 47,516
Interest-bearing 212,252
In foreign offices, Edge and Agreement subsidiaries, and IBFs 53,298
Interest-bearing 53,298
Federal funds purchased and securities sold under agreements to repurchase
in domestic offices of the bank and of its Edge and Agreement subsidiaries,
and in IBFS:
Federal funds purchased 4
Demand notes issued to the U.S. Treasury 5,337
Other borrowed money:
With original maturity of one year or less 267
Mortgage indebtedness and obligations under capitalized leases 845
Bank's liability on acceptances executed and outstanding 2,758
Other liabilities 32,545
--------
TOTAL LIABILITIES $354,822
EQUITY CAPITAL
Common stock $ 25,000
Surplus 51,002
Undivided profits and capital reserves 43,005
--------
Total equity capital 119,007
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND EQUITY CAPITAL $473,829
</TABLE>
I, Christopher M. Marini, 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
and correct to the best of my knowledge and belief.
Christopher M. Marini
July 31,1995
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.
Richard J. Nolan, Jr.
Glenn S. Havlicek
Joseph L. Sciatani
Directors
