As filed with the Securities and Exchange Commission on September 6, 1994
Registration No. 33-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________
LINCOLN NATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
INDIANA 35-1140070
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
200 East Berry Street
Fort Wayne, Indiana 46802-2706
(219) 455-2000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
JACK D. HUNTER, ESQ.
Executive Vice President and General Counsel
200 East Berry Street
Fort Wayne, Indiana 46802-2706
(219) 455-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_____________________
Copy to:
ARTHUR J. SIMON
GARDNER, CARTON & DOUGLAS
321 North Clark Street, Quaker Tower
Chicago, Illinois 60610
(312) 245-8451
and
JOHN L. STEINKAMP
Vice President and Associate General Counsel
1300 South Clinton Street
Fort Wayne, Indiana 46802
(219)455-3628
Approximate date of commencement of the proposed sale to the public:
From time to time after the effective date of this Registration Statement as
determined in light of market conditions.
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, as amended, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
CALCULATION OF REGISTRATION FEE
____________________________________________________________________
<TABLE>
<CAPTION>
Proposed
maximum Proposed Amount
offering maximum of
Title of each class of securities to be Amount to be price per aggregate registration
registered registered unit offering fee
price (2)
<S> <C> <C> <C> <C>
Debt
Securities......................... $500,000,000(1) (1) $500,000,000 $172,414
Preferred Stock, without par value
(3)................................
Common Stock, without par value
(4)................................
</TABLE>
(1) Not applicable pursuant to General Instruction II.D to Form S-3; however,
in no event will the aggregate maximum offering price of all securities issued
and sold pursuant to this Registration Statement exceed $500,000,000 in U.S.
dollars or the equivalent thereof in foreign currency or currency units. Any
securities registered hereunder may be sold separately or as units with other
securities registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) Such indeterminate number of shares of Preferred Stock as may from time to
time be issued at indeterminate prices. The Preferred Stock may include Common
Stock Purchase Rights which, prior to the occurrence of certain events, would
not be exercisable or evidenced separately from the Preferred Stock.
(4) Such indeterminate number of shares of Common Stock as may from time to
time be issued at indeterminate prices. The Common Stock includes Common
Stock Purchase Rights which, prior to the occurrence of certain events, will
not be exercisable or evidenced separately from the Common Stock.
__________________
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 of 1933, as amended, or until this
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT.
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD
NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
Subject to Completion, Dated September 6, 1994
LINCOLN NATIONAL CORPORATION
COMMON STOCK, PREFERRED STOCK AND DEBT SECURITIES
Lincoln National Corporation (the "Company") from time to time may offer
up to $500,000,000 aggregate public offering price (or the equivalent in
foreign denominated currencies or composite currencies) of its (i) unsecured
securities consisting of notes, debentures and or other unsecured evidences of
indebtedness ("Debt Securities"), (ii) Preferred Stock (without par value)
("Preferred Stock"),or (iii) Common Stock (without par value)("Common Stock").
The Debt Securities, Preferred Stock and Common Stock (collectively, the
"Securities") may be offered either together or separately and will be offered
in amounts, at prices and on terms to be determined at the time of offering.
The Company may sell Securities directly, through agents designated from
time to time, through dealers or one or more underwriters, or through a
syndicate of underwriters managed by one or more underwriters. See "Plan of
Distribution."
Certain specific terms of the particular Securities in respect of which
this Prospectus is being delivered ("Offered Securities")are set forth in the
accompanying Prospectus Supplement ("Prospectus Supplement"),including, where
applicable, the initial public offering price of the Securities, the listing
on any securities exchange, other special terms, and (i) in the case of Debt
Securities, the specific designation, aggregate principal amount, the
denomination, maturity, premium, if any, the rate (which may be fixed or
variable), time and method of calculating payment of interest, if any, the
place or places where principal of, premium, if any, and interest, if any, on
such Debt Securities will be payable, the currency in which principal of,
premium, if any, and interest, if any, on such Debt Securities will be
payable, any terms of redemption at the option of the Company or the holder,
any sinking fund provisions and any terms for conversion or exchange into
Common Stock and (ii) in the case of Preferred Stock, the specific title and
stated value, any dividend, liquidation, redemption, voting and other rights
and any terms for exchange for Debt Securities or conversion or exchange into
Common Stock. The Prospectus Supplement sets forth the names of any
underwriters, dealers or agents involved in the distribution of the Offered
Securities and any applicable discounts, commissions or allowances. If so
specified in the applicable Prospectus Supplement, Offered Securities may be
issued in whole or in part in the form of one or more temporary or permanent
global securities.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
The date of this Prospectus is September __, 1994
-1-
<PAGE>
No person is authorized to give any information or to make any
representations other than those contained or incorporated by reference in
this Prospectus or any 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. Neither this
Prospectus nor any Prospectus Supplement constitutes an offer to sell or a
solicitation of an offer to buy any securities other than the registered
securities to which it relates or an offer to sell or a solicitation of an
offer to buy such securities in any circumstance in which such offer or
solicitation is unlawful. Neither the delivery of this Prospectus or any
Prospectus Supplement nor any sale made hereunder or thereunder 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 or that the
information contained or incorporated by reference herein
or therein is correct as of any time subsequent to its date.
AVAILABLE INFORMATION
The Company is subject to the information 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"). Such reports, proxy statements and other
information filed by the Company with the Commission may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
are also available for inspection and copying at the regional offices of the
Commission located at 75 Park Place, New York, New York 10007 and at
Northwestern Atrium Center, 500 West Madison Street, Suite 1400 , Chicago,
Illinois 60661. Copies of such information can also be obtained by mail from
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. In addition, such information
can be inspected at the offices of the New York Stock Exchange, Inc. at 20
Broad Street, New York, New York 10005, at the offices of the Chicago Stock
Exchange, Inc. at 440 South LaSalle Street, Chicago, Illinois, 60603 and at
the offices of the Pacific Stock Exchange, Inc. at 301 Pine Street,
San Francisco, California 94104.
This Prospectus constitutes a part of a registration statement filed on
Form S-3 (herein, together with all amendments and exhibits, referred to as
the "Registration Statement") by the Company with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus
omits certain of the information contained in the Registration Statement, and
reference is hereby made to the Registration Statement for further information
with respect to the Company. Any statements contained herein concerning the
provisions of any document are not necessarily complete and, in each
instance, reference is made to the copy of each document filed as an exhibit
to the Registration Statement or otherwise filed with the Commission. Each
such statement is qualified in its entirety by such reference. The Company
is not required to, and does not,provide annual reports to holders of its
debt securities unless specifically requested by a holder.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for its fiscal year ended
December 31,1993,Quarterly Reports on Form 10-Q for the quarters ended March
31 and June 30,1994 and Current Report on Form 8-K dated March 29, 1994 filed
with the Commission pursuant to Section 13 of the Exchange Act are
incorporated herein by reference.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offerings of the Common Stock, Preferred
Stock and Debt Securities made by the prospectuses included in the
Registration Statement are deemed incorporated herein by reference and such
documents shall be deemed 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
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<PAGE>
to be modified or superseded for purposes of this Prospectus to the extent
that any statement contained herein or in any subsequently filed document
which also 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, upon written or oral request, to
each person to whom a copy of this Prospectus is delivered a copy of any of
the documents incorporated by reference herein (not including the exhibits to
such documents, unless such exhibits are specifically incorporated by
reference in such documents). Requests should be directed to C. Suzanne
Womack, Secretary, Lincoln National Corporation, 200 East Berry Street,
Fort Wayne, Indiana, 46802-2706, telephone number (219) 455-3271.
FOR NORTH CAROLINA RESIDENTS: THE COMMISSIONER OF INSURANCE OF THE STATE
OF NORTH CAROLINA HAS NOT APPROVED OR DISAPPROVED THIS OFFERING NOR HAS THE
COMMISSIONER PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
IN CONNECTION WITH ANY OFFERINGS OF COMMON STOCK, THE UNDERWRITERS MAY
OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE
OF THE COMMON STOCK AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK, CHICAGO OR
PACIFIC STOCK EXCHANGES OR OTHERWISE. SUCH STABILIZING, IF COMMENCED, MAY BE
DISCONTINUED AT ANY TIME.
[End of Second Page of Prospectus]
-3-
<PAGE>
THE COMPANY
The Company is an insurance holding company with consolidated assets at
June 30, 1994, of approximately $47.8 billion and shareholders' equity of
approximately $3.3 billion. The Company, through its subsidiaries, provides
property-casualty insurance, life insurance and annuities and life-health
reinsurance to its customers.
The Property-Casualty segment's products are comprised substantially of
exposures that tend to produce claims that are reported and settled in the
short-term. Products are distributed nationally, with an emphasis on desirable
business environments, and target small and medium-sized commercial accounts
and preferred personal line customers.
The Life Insurance and Annuity segment provides a broad range of life
insurance and annuity contracts through a variety of distribution channels.
This segment attempts to differentiate its products through quality service
and flexibility. Universal life is the dominant life insurance product.
Both fixed and variable annuities have registered strong growth during the
past several years.
For the six months ended June 30, 1994 and for the year ended
December 31, 1993, the Company's consolidated revenue and net income were as
follows:
<TABLE>
<CAPTION>
Six Months Year Ended
Ended June 30, 1994 December 31, 1993
Revenue Net Income Revenue Net Income
(millions of dollars)
<S> <C> <C> <C> <C>
Property-Casualty....................... $1,002.8 $ 67.8 $2,240.6 $ 225.7
Insurance and Annuities.............. 1,255.6 57.1 2,858.3 234.6
Life-Health Reinsurance............... 913.5 29.2 1,930.5 17.3
Employee Life-Health Benefits <F1> 314.9 14.4 1,297.3 55.3
Other Operations <F2>.................. 64.5 29.3 (36.9) (214.0)
Total................................... $3,551.3 $197.8 $8,289.8 $ 318.9
<FN>
<F1> Data shown for the six months ended June 30, 1994 is for the January 1, 1994 through
March 21, 1994 (the date on which the Company sold 64% of its ownership in the subsidiary
involved in this segment)
<F2> Net Income for "Other Operations" for the year ended December 31, 1993 consists of
$19.8 million in net realized capital gains, a loss of $98.5 million from the sale of a
subsidiary, a charge of $96.4 million for the adoption of an accounting charge (post-
retirement benefits) and $38.9 million of corporate expenses and interest on corporate
debt.
</FN>
</TABLE>
Lincoln National Corporation is an Indiana corporation with its
principal office at 200 East Berry Street, Fort Wayne, Indiana 46802-2706.
Its telephone number is (219) 455-2000.
USE OF PROCEEDS
Unless otherwise indicated in the accompanying Prospectus Supplement,
the net proceeds to the Company from the sale of Securities offered hereby will
be used for general corporate purposes and may be used for the repayment of
short-term debt, or to fund future acquisitions, capital expenditures or
working capital needs. Specific allocations of the proceeds for the various
purposes have not been made at this time, and the amount and timing of such
offerings will depend upon the Company's requirements and the availability of
other funds. All or a portion of the proceeds may be invested on a temporary
basis in short-term, interest-bearing securities. The specific allocations of
the proceeds of a particular series or issuance of Securities will be described
in the Prospectus Supplement relating thereto.
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<PAGE>
RISK FACTORS RELATING TO CURRENCIES
Debt Securities denominated or payable in foreign currencies may entail
significant risks. These risks include, without limitation,the possibility of
significant fluctuations in foreign currency exchange rates. These risks may
vary depending upon the currency or currencies involved. These risks will be
more fully described in the Prospectus Supplement relating thereto.
<TABLE>
<CAPTION>
HISTORICAL RATIO OF EARNINGS TO FIXED CHARGES
Six months
ended
June 30, Year Ended December 31,
1994 1993 1993 1992 1991 1990 1989
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges:
Excluding interest on
annuities and financial
products <f/1>...........................7.90 8.99 10.35 6.69 3.04 3.04 4.01
Including interest on
annuities and financial
products <f/2>.......................... 1.33 1.36 1.43 1.32 1.16 1.18 1.34
Ratio of earnings to combined
fixed charges and preferred
stock dividends <F/3>.................. 1.31 1.34 1.40 1.30 1.15 1.17 1.31
<FN>
<f/1> For purposes of determining this ratio, earnings consist of income before federal
income taxes and cumulative effect of accounting change adjusted for the difference
between income or losses from unconsolidated equity investments and cash distributions
from such investments, plus fixed charges. Fixed charges consist of interest expense
on debt and the portion of operating leases that are representative of the interest
factor.
<f/2> Same as the ratio of earnings to fixed charges, excluding interest on annuities
and financial products, except fixed charges and earnings include interest on
annuities and financial products.
<f/3> Same as the ratio of earnings to fixed charges, including interest on annuities
and financial products, except that fixed charges include the pre-tax earnings
required to cover preferred stock dividend requirements.
</FN>
</TABLE>
DESCRIPTION OF DEBT SECURITIES
The Debt Securities may be issued in one or more series under an
Indenture (the "Indenture"), between the Company and The Bank of New York,
as trustee (the "Trustee"), a copy of which is included as an exhibit to
the Registration Statement filed with the Commission with respect to the
Debt Securities. The following summaries of certain provisions of the
Indenture are not complete and are subject to, and are qualified in their
entirety by reference to, all provisions of the Indenture. Certain terms
defined in the Indenture are capitalized in this Prospectus.
Parenthetical references are to the Indenture.
General
The Debt Securities will be unsecured and will rank on the parity with
all other unsecured and unsubordinated indebtedness of the Company.
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<PAGE>
The Indenture does not limit the amount of Debt Securities which may be
issued thereunder and provides that Debt Securities may be issued up to the
aggregate principal amount which may be authorized from time to time by the
Company. Reference is made to the Prospectus Supplement for the following
terms of Debt Securities being offered thereby; (i) the title, aggregate
principal amount and authorized denominations of Debt Securities; (ii) the
percentage of their principal amount at which such Debt Securities will be
issued; (iii) the date or dates on which Debt Securities will mature; (iv)
the rate or rates per annum (which may be fixed or variable), if any, at
which Debt Securities will bear interest (or the method of determination or
calculation thereof); (v) the times at which any such interest will be
payable; (vi) the currency or units based on or relating to currencies in
which the Debt Securities are denominated and in which principal, premium,
if any, any interest and Additional Amounts (as defined below) will or may
be payable; (vii) the dates, if any, on which and the price or prices at
which the 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 other terms and provisions of sinking fund;
(viii) any redemption terms or any terms for repayment of principal
amount at the option of the holder; (ix) whether and under what circumstances
the Company will pay additional amounts ("Additional Amounts") in respect of
certain taxes imposed on certain holders or as otherwise provided; (x) the
terms and conditions upon which such Debt Securities may be convertible into
shares of Common Stock or other securities of the Company, including the
conversion price, conversion period and other conversion provisions; (xi)
the defeasance provisions, if any, that are applicable to such Debt
Securities; (xii) whether the Debt Securities are to be issuable in global
form and, if so, the terms and conditions, if any, upon which interests in
such Debt Securities in global form may be exchanged, in whole or in part,
for the individual Debt Securities represented thereby and the initial
Depository with respect to such global Debt Security; (xiii) the person to
whom any interest on a Registered Security is payable, if other than the
registered holder thereof, or the manner in which any interest is payable
on a Bearer Security if other than upon presentation of the coupons
pertaining thereto, as the case may be; or (xiv) any other specific terms
of such Debt Securities.
Principal, interest and premium and Additional Amounts, if any, will be
payable in the manner, at the places and subject to the restrictions set
forth in the Indenture, the Debt Securities and the Prospectus Supplement
relating thereto.
Unless otherwise indicated in the Prospectus Supplement relating
thereto, the Debt Securities will be issued in fully registered form without
coupons. Where Debt Securities of any series are issued in bearer form, the
special restrictions and considerations, including special offering
restrictions and special Federal income tax considerations, applicable to any
such Debt Securities and to payment on and transfer and exchange of such Debt
Securities will be described in the applicable Pricing Supplement.
Some of the Debt Securities may be issued as discounted Debt Securities
(bearing no interest or at a rate which at the time of issuance is below
market rates) to be sold at the substantial discount below their stated
principal amount. Federal income tax consequences and other special
considerations applicable to any such discounted Debt Securities will be
described in the Prospectus Supplement relating thereto.
If the purchase price of any Debt Securities is payable in one or more
foreign currencies or currency units or if any Debt Securities are
denominated in one or more foreign currencies or currency units or if the
principal of, premium, if any, or interest, if any, on any Debt Securities
is payable in one or more foreign currencies or currency units, the
restrictions, elections, certain Federal income tax considerations, specific
terms and other information with respect to such issue of Debt Securities
and such foreign currency or currency units will be set forth in the
applicable Prospectus Supplement.
Debt Securities may be presented for exchange, and registered Debt
Securities may be presented for transfer, in the manner, at the places and
subject to the restrictions set forth in the Indenture, the Debt Securities
and the Prospectus Supplement relating thereto. Debt Securities in
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<PAGE>
bearer form and the coupons, if any,appertaining thereto will be transferable
by delivery. No service charge will be made for any transfer or exchange of
Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
(Section 2.06)
Unless otherwise indicated in the applicable Prospectus Supplement, the
covenants contained in the Indenture and the Debt Securities would not
necessarily afford Holders of the Debt Securities protection in the event
of a highly leveraged or other transaction involving the Company that may
adversely affect Holders.
If the Debt Securities are convertible into shares of Common Stock,
the conversion price payable and the number of shares purchasable upon
conversion may be subject to adjustment in certain events as set forth in
the applicable Prospectus Supplement.
Form, Registration, Transfer and Exchange
The Debt Securities of a series may be issued solely as Registered
Securities, solely as Bearer Securities (with or without coupons attached) or
as both Registered Securities and Bearer Securities. Debt Securities of a
series may be issuable in whole or part in the form of one or more global
Debt Securities ("Global Securities"), as described below under "Book-Entry
Debt Securities."
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations
and of a like aggregate principal amount and tenor. In addition, if Debt
Securities of any series are issuable as both Registered Securities and as
Bearer Securities, at the option of the holder, subject to the terms of the
Indenture, Bearer Securities (accompanied by all unmatured coupons, except
as provided below, and all matured coupons in default) of such series will
be exchangeable for Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor.
Unless otherwise indicated in the applicable Prospectus Supplement, any Bearer
Security surrendered in exchange for a Registered Security between a record
date or a special record date for defaulted interest and the relevant date
for payment of interest will be surrendered without the coupon relating to
such date for payment of interest and interest will not be payable in respect
of the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the holder of such coupon when due in accordance
with the terms of the Indenture. Bearer Securities will not be issued in
exchange for Registered Securities. (Sections 2.06, 2.12 and 4.01)
Debt Securities may be presented for exchange as provided above, and
unless otherwise indicated in the applicable Prospectus Supplement, Registered
Securities may be presented for registration of transfer (duly endorsed, or
accompanied by a duly executed written instrument of transfer), at the office
of any transfer agent designated by the Company for such purpose with respect
to any series of Debt Securities and referred to in the applicable Prospectus
Supplement, without service charge and upon payment of any taxes and other
governmental charges as described in the Indenture. Such transfer or exchange
will be effected upon such transfer agent being satisfied with the documents
of title and identity of the person making the request. The Company may at
any time rescind the designation of any transfer agent,provided,however, that
no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of Payment
for Debt Securities of such series. The Company may at any time designate
additional transfer agents with respect to any series of Debt Securities.
(Sections 2.06 and 4.02)
In the event of any redemption of Debt Securities of any series, the
Company will not be required to (i) register the transfer of or exchange Debt
Securities of that series during a period of 15 days next preceding the
selection of securities of such series to be redeemed; (ii) register the
transfer of or exchange any Registered Security, or portion thereof, called
for redemption, except the unredeemed portion of any Registered Security
being redeemed in part; or (iii) exchange any Bearer
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<PAGE>
Security called for redemption, except to the extent provided with respect to
any series of Debt Securities and referred to in the applicable Prospectus
Supplement, to exchange such Bearer Security for a Registered
Security of that series and of like tenor and principal amount that is
immediately surrendered for redemption. (Section 2.06)
Payment and Paying Agents
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of principal, interest and Additional Amounts, if any, on Registered
Securities will be made at the office of such paying agent or paying agents
as the Company may designate from time to time, except that at the option of
the Company payment of any interest and any Additional Amounts may be made by
check or draft mailed to the address of the Person entitled thereto as such
address shall appear in the Debt Security Register. Unless indicated in an
applicable Prospectus Supplement, payment of any installment of interest on
Registered Securities will be made to the Person in whose name such
Registered Security is registered at the close of business on the record
date for such interest. (Section 4.01)
Unless otherwise indicated in the applicable Prospectus Supplement,
payment of principal and interest or Additional Amounts, if any, on Bearer
Securities will be payable, subject to any applicable laws and regulations, at
the offices of such paying agents outside the United States as the Company may
designate from time to time, or by check or by transfer to an account
maintained by the payee outside the United States. Unless otherwise
indicated in the applicable Prospectus Supplement, any payment of interest
on any Bearer Securities will be made only against surrender of the coupon
relating to such interest installment. (Sections 2.06 and 4.02)
Any paying agents in or outside the United States initially designated
by the Company for the Debt Securities will be named in the applicable
Prospectus Supplement. If the Debt Securities of a series are listed on a
stock exchange located outside the United States, and such stock exchange
shall so require, the Company will maintain a paying agent with respect to
such series in London, Luxembourg or any other city so required located
outside the United States so long as the Debt Securities of such series are
listed on such exchange. The Company may at any time designate additional
paying agents or rescind the designation of any paying agent, provided,
however, that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in each Place
of Payment. (Section 4.02)
All monies paid by the Company to a paying agent for the payment of
principal of or interest or Additional Amounts, if any, on any Debt Security
which remain unclaimed at the end of one year after such principal, interest
or Additional Amounts shall have become due and payable will be repaid to the
Company and the holder of such Debt Security or any coupon will thereafter
look only to the Company for payment thereof. (Section 4.03)
Book-Entry Debt Securities
The Debt Securities of a series may be issued in the form of one or more
Global Securities that will be deposited with a Depository or its nominee
identified in the applicable Prospectus Supplement. In such a case, one or
more Global Securities will be issued in a denomination or aggregate
denominations equal to the portion of the aggregate principal amount of
outstanding Debt Securities of the series to be represented by such Global
Security or Global Securities. Unless and until it is exchanged in whole or
in part for Debt Securities in registered form, a Global Security may not,
subject to certain exceptions, be registered for transfer or exchange except
to the Depository for such Global Security or a nominee of such Depository.
(Section 2.06)
The specific terms of the depository arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus
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<PAGE>
Supplement. The Company expects that the provisions described below will be
applicable to depository arrangements.
Unless otherwise specified in the applicable Prospectus Supplement, Debt
Securities which are to be represented by a Global Security to be deposited
with or on behalf of a Depository will be represented by a Global Security
registered in the name of such Depository or its nominee. Upon the issuance
of such Global Security and the deposit of such Global Security with or on
behalf of the Depository for such Global Security, the Depository will credit
on its book-entry registration and transfer system the respective principal
amounts of the Debt Securities represented by such Global Security to the
accounts of institutions that have accounts with such Depository or its
nominee ("participants"). The accounts to be credited will be designated by
the underwriters or agents of such Debt Securities or by the Company if such
Debt Securities are offered and sold directly by the Company. Ownership of
beneficial interests in such Global Security will be limited to participants
or persons that may hold interests through participants. Ownership of
beneficial interest by participants in such Global Security will be shown on,
and the transfer of that ownership interest will be effected only through,
records maintained by the Depository for such Global Security. Ownership of
beneficial interests in such Global Security by persons that hold through
participants will be shown on, and the transfer of that ownership interest
within such participant will be effected only through, records maintained
by such participant. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in
certificated form. The foregoing limitations and such laws may impair the
ability to transfer beneficial interests in such Global Securities.
So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository 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. Unless otherwise specified in the applicable Prospectus
Supplement, owners of beneficial interests in such 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
certificated form and will not be considered the holders thereof for any
purposes under the Indenture. (Sections 2.06 and 11.03) Accordingly,
each person owning a beneficial interest in such Global Security must rely
on the procedures of the Depository and, if such person is not a participant
on the procedures of the participant through which such person owns its
interest to exercise any rights of a holder under the Indenture.
The Company understands that, under existing industry practices, if the
Company requests any action of holders or an owner of a beneficial interest
in such Global Security desires to give any notice or take any action a
holder is entitled to give or take under the Indenture, the Depository
would authorize the participants to give such notice or take such action,
and participants would authorize beneficial owners owning through such
participants to give such notice or take such action or would otherwise
act upon the instructions of beneficial owners owning through them.
Principal of and any premium, interest and Additional Amounts on a
Global Security, will be payable in the manner described in the applicable
Prospectus Supplement.
Limitation on Liens on Stock of Restricted Subsidiaries
The Company will not, nor will it permit any Restricted Subsidiary to,
issue, assume or guarantee any indebtedness for borrowed money (hereinafter
referred to as "Debt") secured by a mortgage, security interest, pledge, lien
or other encumbrance upon any shares of stock of any Restricted Subsidiary
without effectively providing that the Debt Securities (together with, if the
Company shall so determine, any other indebtedness of or guarantee by the
Company ranking equally with the Debt Securities and then existing or
thereafter created) shall be secured equally and ratably with such Debt.
(Section 4.06).
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For purposes of the Indenture, "Restricted Subsidiary" means each of
American States Insurance Company and The Lincoln National Life Insurance
Company so long as it remains a subsidiary, as well as any successor to all
or a principal part of the business of any such subsidiary and any other
subsidiary which the Board of Directors designates as a Restricted
Subsidiary. (Section 1.01) The Restricted Subsidiaries accounted for
approximately 56% of the consolidated revenues of the Company during the year
ended December 31, 1993, and 85% of the consolidated assets of the Company
at December 31, 1993.
Limitation on Issuance or Disposition of Stock of Restricted Subsidiaries
The Company will not, nor will it permit any Restricted Subsidiary to,
issue, sell, assign, transfer or otherwise dispose of, directly or indirectly,
any Capital Stock (other than nonvoting preferred stock) of any Restricted
Subsidiary, except for (i) the purpose of qualifying directors; (ii) sales or
other dispositions to the Company or one or more Restricted Subsidiaries;
(iii)the disposition of all or any part of the Capital Stock of any Restricted
Subsidiary for consideration which is at least equal to the fair value of such
Capital Stock as determined by the Company's Board of Directors(acting in good
faith); or (iv) an issuance, sale, assignment, transfer or other disposition
required to comply with an order of a court or regulatory authority of
competent jurisdiction, other than an order issued at the request of the
Company or any Restricted Subsidiary.(Section 4.07)
For the purposes of the Indenture, "Capital Stock" means any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) corporate stock.
(Section 1.01)
Defaults and Remedies
An Event of Default with respect to Debt Securities of any series is
defined in the Indenture as being: (a) default for 30 days in payment of any
interest or Additional Amounts on the Debt Securities of such series; (b)
default in payment of principal or premium, if any, on the Debt Securities
of such series when due either at maturity, upon redemption, by declaration
or otherwise (except a failure to make payment resulting from mistake,
oversight or transfer difficulties not continuing for more than 3 Business
Days beyond the date on which such payment is due); (c) default in payment of
any sinking fund installment when due and payable (except a failure to make
payment resulting from mistake, oversight or transfer difficulties not
continuing for more than 3 Business Days beyond the date on which such
payment is due); (d) default by the Company in the performance or breach of
any other covenant or warranty of the Company in respect of the Debt
Securities of such series for a period of 60 days after notice thereof to
the Company or Trustee; (e) certain events involving the bankruptcy or
insolvency of the Company; or (f) other Events of Default as specified in
the Supplemental Indenture or Board Resolution under which series of Debt
Securities was issued. (Section 6.01)
The Indenture provides that (1) if an Event of Default described in
clauses (a),(b),(c) or, in the event of a default with respect to less than
all Outstanding series under the Indenture, (d) above shall have occurred and be
continuing with respect to one or more series, either the Trustee or the
holders of 25 percent in principal amount of the Debt Securities of such
series then Outstanding (each such series voting as a separate class) may
declare the principal (or, in the case of original issue discount Debt
Securities, the portion thereof specified in the terms thereof) of all
Outstanding Debt Securities of such series and the interest accrued thereon
and Additional Amounts payable in respect thereof, if any, to be due and
payable immediately and (2) if an Event of Default described in clause (d)
(in the event of a default with respect to all Outstanding series) or (e)
above shall have occurred and be continuing, either the Trustee or the
holders of 25 percent in principal amount of all Debt Securities then
Outstanding (voting as one class) may declare the principal (or, in the
case of original issue discount Debt Securities, the portion of the
principal amount thereof specified in the terms thereof) of all Debt
Securities then Outstanding and the interest accrued thereon and Additional
Amounts payable in respect thereof, if any, to be due and payable immediately,
but upon certain conditions such
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declarations may be annulled and past defaults (except for defaults in the
payment of principal of, or premium, interest or Additional Amounts, if any,
on such Debt Securities) may be waived by the holders of a majority in
principal amount of the Debt Securities of such series (or of all series,
as the case may be) then Outstanding. (Sections 6.01 and 6.10)
Holders may not enforce the Indenture or the Debt Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Debt Securities unless it receives indemnity satisfactory to it. Subject to
certain limitations, holders of a majority in principal amount of the Debt
Securities of any series may direct the Trustee in its exercise of any trust
or power. The Company is required to deliver annually to the Trustee an
officer's statement indicating whether the signer knows of any default by the
Company in performing any of its obligations under the Indenture. The
Trustee may withhold from Holders notice of any continuing default (except
a default in payment of principal, premium, if any, interest or Additional
Amounts, if any, or any sinking or purchase fund installment) if it
determines that withholding notice is in their interest.
(Sections 4.05, 6.06, 6.09, 6.11, 7.01 and 7.05).
Defeasance
Unless otherwise described in a Prospectus Supplement with respect to
any series of Debt Securities, the Company, at its option, (a) will be
discharged from any and all obligations in respect of such Debt Securities
(except in each case for certain obligations to register the transfer or
exchange of such Debt Securities, replace stolen, lost or mutilated Debt
Securities, maintain paying agencies and hold moneys for payment in trust)
on the ninety-first day after satisfaction of all conditions thereto or (b)
effective upon the satisfaction of all conditions thereto, need not comply
with certain restrictive covenants (including any covenants or agreements
applicable with respect to a particular series of Debt Securities) under the
Indenture and will not be limited by any restrictions with respect to merger,
consolidation or sales of assets, in each case if the Company deposits with
the Trustee, in trust, (x) money or (y) Government Obligations or a
combination of (x) and (y) which, through the payment of interest thereon
and principal thereof in accordance with their terms, will in the written
opinion of independent public accountants selected by the Company, must
provide money in an amount sufficient to pay all the principal (including any
mandatory sinking fund payments) of, and interest and Additional Amounts,
if any, and premium, if any, on, such Debt Securities on the dates such
payments are due in accordance with the terms of such series. (Section 8.02)
In order to avail itself of either of the foregoing options, no Event or
Default shall have occurred and be continuing under the Indenture and the
Company must provide to the Trustee (i) an opinion of 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 the Company's
exercise of its option and will be subject to Federal income tax on the same
amount and in the same manner, and at the same time as would have been the
case if such option had not been exercised and, in the case of Debt
Securities being discharged, such opinion shall be accompanied by a private
letter ruling to that effect received from the United States Internal
Revenue Service (the "Service") or a revenue ruling pertaining to a
comparable form of transaction to that effect published by the Service,
(ii) an officers' certificate to the effect that no Event of event which
with the giving of notice or lapse of time, or both, would become an
Event of Default, with respect to such Debt Securities shall have occurred
and be continuing on the date of the deposit, and (iii) if the Debt
Securities are listed on the New York Stock Exchange, an opinion of counsel to
the effect that the exercise of such option will not cause the Debt
Securities to be delisted. (Section 8.02) "Government Obligations" means
generally direct noncallable obligations of the government which issued the
currency in which the Debt Securities of the applicable series are
denominated, noncallable obligations the payment of the principal of and
interest on which is fully guaranteed by such government, and noncallable
obligations on which the full faith and credit of such government is
pledged to the payment of the principal thereof and interest thereon.
(Section 1.01). In addition, the Company may obtain a discharge under
the Indenture with respect to all the Debt Securities of a series by
depositing with the Trustee, in trust, moneys or Government Obligations
sufficient to pay at maturity or upon redemption principal of, premium,
if any, and any interest and Additional Amounts on, all of
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the Debt Securities of such series, provided that all of the Debt Securities of
such series are by their terms to become due and payable within one year or
are to be called for redemption within one year. No opinion of counsel or
ruling relating to the tax consequences to holders is required with respect
to a discharge pursuant to the provisions described in the immediately
preceding sentence. (Section 8.01) In the event of any discharge of
Debt Securities pursuant to the terms of the Indenture described above,
the holders of such Debt Securities will thereafter be able to look solely
to such trust fund, and not to the Company, for payments of principal,
premium, if any, and interest and Additional Amounts, if any. (Sections 8.01
and 8.02)
Consolidation, Merger and Sale of Assets
The Company may not consolidate with or merge into, or sell, lease or
convey all or substantially all of its assets to, another corporation unless
(i) the successor or transferee corporation, which shall be a corporation
organized and existing under the laws of the United States or a State thereof,
assumes by supplemental indenture all the obligations of the Company under the
Debt Securities and the Indenture and (ii) the Company or successor
corporation, as the case may be, will not, immediately after such
consolidation or merger or sale, lease or conveyance, be in default in the
performance of any covenant or condition with respect to the Debt Securities
or the Indenture. The Company will deliver to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture comply with the terms of
the Indenture. Upon any consolidation or merger, or any sale, lease or
conveyance of all or substantially all of the assets of the Company, the
successor corporation formed by such consolidation or into which the Company
is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the
Company under the Indenture. (Sections 5.01 and 5.02). Thereafter all
obligations of the predecessor corporation shall terminate. (Section 5.01)
Modification of the Indenture
The Indenture permits the Company and the Trustee to amend or supplement
the Indenture or the Debt Securities without notice to or consent of any
holder of a Debt Security for certain purposes, including without limitation,
to cure any ambiguity, defect or inconsistency, to comply with Section 5.01
(relating to when the Company may consolidate, merge or sell all or
substantially all of its assets), to provide for uncertificated Debt
Securities, to establish the form or terms of Debt Securities of any series
or to make any change that does not adversely affect the rights of any
holder of a Debt Security. (Section 9.01) Certain modifications and
amendments of the Indenture may be made by the Company and the Trustee
only with the consent of the holders of at least 50% in aggregate principal
amount of the Outstanding Debt Securities of each series issued under the
Indenture which is affected by the modification or amendment (voting as
one class). However, no such modification or amendment may, without the
consent the holder of each Debt Security affected thereby, (i) reduce the
aforesaid percentage of Debt Securities whose holders must consent to an
amendment, supplement or waiver; (ii) reduce the rate or rates or
extend the time for payment of interest or Additional Amounts, if any,
on any Debt Security; (iii) reduce the principal of or premium, if any,
on or extend the fixed maturity of any Debt Security; (iv) modify or effect
in any manner adverse to the holders of Debt Securities the terms and
conditions of the obligations of the Company in respect of its obligations
under the Indenture; (v) waive a default in payment of principal of or
premium or interest or Additional Amounts, if any, on any Debt Security;
(vi) impair the right to institute a suit for the enforcement of any
payment on or with respect to any series of Debt Securities; (vii) change
a Place of Payment; or (viii) make any Debt Security payable in currency other
than that stated in the Debt Security. (Section 9.02)
Regarding the Trustee
The Trustee is a participant in the Company's revolving credit agreement,
and the Company has maintained other banking relationships with the Trustee in
the normal course of business.
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The Trustee also acts as paying agent for the Company's 7 1/8% Notes due
July 15, 1999, and 7 5/8% Notes due July 15, 2002.
DESCRIPTION OF PREFERRED STOCK AND COMMON STOCK
General
The Company may issue, separately or together with other Securities,
shares of Common Stock or Preferred Stock, all as set forth in the Prospectus
Supplement relating to the Common Stock or Preferred Stock for which this
Prospectus is being delivered. In addition, if the Prospectus Supplement so
provides, the Debt Securities or Preferred Stock may be convertible into or
exchangeable for Common Stock.
The Company's Articles of Incorporation currently authorize the issuance
of 800,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stock
("Preferred Stock"). The Company's Preferred Stock may be issued from time to
time in one or more series by resolution of the Board of Directors. At the
present time, the company has outstanding three series of Preferred Stock,
consisting of the Company's $3.00 Cumulative Convertible Preferred Stock,
Series A (without par value) (the "Series A Preferred Stock") and its 5 1/2%
Cumulative Convertible Exchangeable Preferred Stock, Series E and F (without
par value) ("Series E Preferred Stock" and "Series F Preferred Stock"
respectively). At June 30, 1994, the Company had issued and outstanding
94,774,640 shares of Common Stock, 45,556 shares of Series A Preferred and
2,201,443 and 2,216,454 shares of Series E and F Preferred Stock,
respectively.
The following descriptions of the classes of the Company's capital stock
are summaries, do not purport to be complete, and are subject,in all respects,
to the applicable provisions of the Indiana Business Corporation Law and the
Company's Articles of Incorporation (including the Certificate of Resolution
by the Board of Directors of the Company Designating the Rights and
Preferences of the Series A Preferred Stock), Articles of Amendment
Designating the Rights and Preferences of the Series E and F Preferred Stock,
and the Rights Agreement, referred to below, with The First National Bank of
Boston, which, in each case, are included as Exhibits to the Registration
Statement of which this Prospectus forms a part.
Common Stock
Holders of the Company's Common Stock are entitled to receive dividends
when, as and if declared by the Board of Directors after all dividends
accrued on all preferred or special classes of shares entitled to
preferential dividends have been paid or declared and set apart for payment
out of funds legally available therefore. Upon liquidation, dissolution or
winding up of the affairs of the Company, whether voluntary or involuntary,
holders of Common Stock are entitled to receive pro rata any net assets of
the Company remaining after the claims of creditors and preferences of the
Series A, E, and F Preferred Stock,and any other series of Preferred Stock
at the time outstanding, have been paid in full. The Company's Articles of
Incorporation provide that holders of Common Stock and holders of any series
of Preferred Stock from time to time outstanding shall each have the right
at every meeting of shareholders to one vote for each share of Common Stock
and/or Preferred Stock so held, and holders of Common Stock and holders of
Preferred Stock shall so vote as one class. Under certain circumstances as
provided by law, the Company's Articles of Incorporation or the terms of the
Preferred Stock, certain series of Preferred Stock may vote as a separate
class or classes. The Company's Bylaws presently provide for three classes
of directors, with directors in each class serving staggered three-year
terms. The holders of Common Stock do not have any preemptive rights to
subscribe for additional shares, and the Common Stock does not have
cumulative voting rights.
The Company's Common Stock is listed on the New York, Chicago, Pacific,
London and Tokyo
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Stock Exchanges. The outstanding shares of Common Stock are,
and the Common Stock offered hereby when issued will be, validly issued, fully
paid and non-assessable. The Company will take appropriate action to list the
Common Stock offered hereby as described in the Prospectus Supplement
relating to any issuance of Common Stock.
Common Stock Purchase Rights. Under a Rights Agreement between the
Company and The First National Bank of Boston ("Common Rights Agreement"),
each outstanding share of Common Stock is coupled with a right (the "Common
Rights")entitling the holder to purchase from the Company one share of Common
Stock at a price of $75.00 per share, subject to adjustment.
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (other
than the Company or certain related persons or approved purchasers) (an
"Acquiring Person") acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding Common Stock or (ii) 10 days
following the commencement or 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 affiliated or associated persons of 30% or
more or such outstanding Common Stock (the earlier of such dated being called
the "Distribution Date"), the Common Rights will be transferred with and
only with the Common Stock. As soon as practicable following the Distribution
Date, separate certificates evidencing the Common Rights ("Common Rights
Certificate") will be mailed to holders of the Common Stock as of the close
of business on the Distribution Date and such separate Common Right
Certificates alone will evidence the Common Rights. The Common Rights are
not exercisable until the Distribution Date. The Common Rights will expire on
November 21, 1996, unless earlier redeemed by the Company as described below.
The Common Right purchase price payable, and the number of shares of
Common Stock or other Securities or property issuable, upon exercise of the
Common Rights are subject to adjustment from time to time to prevent dilution
(i)in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Common Stock, (ii) upon the grant to holders of the
Common Stock of certain rights or warrants to subscribe for the Common Stock
or convertible Securities at less then the current market price of the Common
Stock, or (iii) upon the distribution to holders of the Common Stock of
evidences of indebtedness or assets (excluding regular quarterly cash
dividends out of earnings or retained earnings theretofore paid or dividends
payable in Common Stock) or of subscription rights or warrants (other than
those referred to above).
In the event that the Company were acquired in a merger or other
business combination transaction in which more than 50% of its assets or
earning power were sold, proper provision will be made so that each holder of
a Common Right shall thereafter have the right to receive upon the exercise
thereof at the then current exercise price of the Common Right, that number
of shares of common stock of the acquiring company which at the time of such
transaction would have a market value of two times the exercise price of the
Common Right. In the event an Acquiring Person merges into the Company, the
Company is the surviving corporation and the Company's Common Stock is not
changed into or exchanged for stock or other Securities of the Company or any
other person or cash or any other property and (i) an Acquiring Person
engages in one of a number of self-dealing transactions specified in the
Common Rights Agreement or (ii) during such time as there is an Acquiring
Person, there is a reclassification of Securities, reverse stock split,
recapitalization of the Company, merger or consolidation of Company with any
of its subsidiaries or any other transaction involving the Company or its
subsidiaries which has the effect of increasing by more than 1% the
proportionate equity Securities ownership of the Company or any of its
subsidiaries by an Acquiring Person, proper provision will be made so that
each holder of a Common Right, other than Common Rights that were
beneficially owned by the Acquiring Person on the earlier of the
Distribution Date or the date of the public announcement that an Acquiring
Person acquired 20% or more of the outstanding shares of Common Stock, will
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
Common Right.
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With certain exceptions, no adjustment in the Common Right purchase
price will be required until cumulative adjustments require an adjustment of
at least 1% in such Common Right purchase price. No fractional shares will be
issued and in lieu thereof an adjustment in cash will be made based on the
market price of the Common Stock on the last trading day prior to the date of
exercise.
At any time prior to the time that any person becomes an Acquiring
Person, the Company may redeem the Common Rights in whole, but not in part,
at a price of $.01 per Right (the "Redemption Price") payable in cash.
Immediately upon the action of the Board of Directors electing to redeem the
Common Rights, the Company shall make an announcement thereof, and upon such
election, the right to exercise the Common Rights will terminate and the only
right of the holders of Common Rights will be to receive the Redemption
Price. Until a Common Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without limitation,
the right to vote or to receive dividends.
Certain Provisions of the Company's Articles of Incorporation. The
Company's Articles of Incorporation provide that the affirmative vote of the
holders of three-fourths of the Company's voting stock is required to amend
Article VII, which deals with the number, classification, qualifications and
removal of directors. Article VII provides that the number of directors may
be fixed in the Bylaws, that qualifications for directors may be set in the
Bylaws, and that the Bylaws may provide for classification of the Board. The
Bylaws can be amended only by action of the Board. Article VII also provides
that directors can be removed, with or without cause, at a meeting of
shareholders called expressly for that purpose upon the affirmative vote of
the holders of at least three-fourths of the Company's voting stock.
The provisions of Article VII requiring the affirmative vote of three-
fourths of the Company's voting stock to amend Article VII could make it
difficult for the shareholders to change the existing provision of that
Article, which, in turn, could discourage proxy contests and tender offers
and make it more likely that incumbent directors will maintain their
positions.
The Articles of Incorporation also contain a "fair price" provision
which requires, subject to certain exceptions, certain kinds of business
combinations involving the Company and any shareholder holding 10% or more of
the Company's voting stock (or certain affiliates of such shareholder) to be
approved by the holders of at least three-fourths of the Company's voting
stock, unless (i) the transaction is approved by a majority of the members of
the Board of Directors of the Company who are not affiliated with the 10%
shareholder making the proposal, or (ii) the transaction meets certain
minimum price and procedural requirements (in either of which cases,
only the normal shareholder and director approval requirements of the
Indiana Business Corporation Law would govern the transaction). The "fair
price" provision may be amended or repealed only upon the affirmative vote of
the holders of at least three-fourths of the Company's voting stock. The
"fair price" provision is intended to increase the likelihood that all
shareholders of the Company will be treated similarly if certain kinds of
business combinations are effected. The "fair price" provision may have the
effect of making a takeover of the Company more expensive and may therefore
discourage tender offers for less than three-fourths of the Company's stock
and acquisitions of substantial blocks of the Company's stock with
a view to acquiring control of the Company.
Certain State Law Provisions. Chapter 43 of the Indiana Business
Corporation Law also restricts business combinations with interested
shareholders. It prohibits certain business combinations, including mergers,
sales of assets, recapitalizations, and reverse stock splits, between certain
corporations having 100 or more shareholders that also have a class of voting
shares registered with the Securities and Exchange Commission under Section
12 of the Exchange Act (which includes the Company) and an interested
shareholder, defined as the beneficial owner of 10% or more of the voting
power of the outstanding voting shares of that corporation, for five years
following the date the shareholder acquired such 10% beneficial ownership,
unless the acquisition or the business combination was approved by the board
of directors in advance of such date. Moreover, the acquisition or business
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combination must meet all requirements of the corporation's articles of
incorporation, as well as the requirements specifically set out in the
Indiana Business Corporation Law. After the five-year period expires, a
business combination with an interested shareholder that did not receive
board approval prior to the interested shareholder's acquisition date may
take place only if such combination is approved by a majority vote of
shares not held by the interested shareholder or its affiliates or if the
proposed combination meets certain minimum price requirements based upon
the highest price paid by the interested shareholder. The aggregate amount
of cash and the market value of non-cash consideration to be received by
holders of all outstanding stock other than common stock is to be
determined under criteria similar to those for common stock, except that the
minimum price to be received by such shareholders cannot be less than the
highest preferential amount per share to which holders of such class of
stock are entitled in the event of voluntary dissolution, plus dividends
declared or due. The consideration to be received by holders of a particular
class must be distributed promptly and paid in cash or in the same form as
the interested shareholder used to acquire the largest number of shares it
owns in that class. Finally, the interested shareholder must not have become
the beneficial owner of any more voting shares of stock since it became an
interested shareholder, with certain exceptions.
Chapter 42 of the Indiana Business Corporation Law includes provisions
designed to protect minority shareholders in the event that a person acquires,
pursuant to a tender offer or otherwise, shares giving it more than 20%, more
than 33 1/3%, or more than 50% of the outstanding voting power ("Control
Shares") of corporations having 100 or more shareholders. Unless the
corporation's articles of incorporation or bylaws provide that Chapter 42
does not apply to control share acquisitions of shares of the corporation
before the control share acquisition, an acquirer who purchases Control
Shares without seeking and obtaining the prior approval of the board of
directors cannot vote the Control Shares until each class or series of
shares entitled to vote separately on the proposal, by a majority of all
votes entitled to be cast by that group (excluding the Control Shares and
any shares held by officers of the corporation and employees of the
corporation who are directors thereof), approve in a special or annual
meeting the rights of the acquirer to vote the Control Shares.
An Indiana corporation otherwise subject to Chapter 42 may elect not to be
covered by the statute by so providing in its articles of incorporation or
bylaws. The Company is currently subject to the statute.
Indiana insurance laws and regulations provide that no person may
acquire voting securities of the Company if after such acquisition such person
would directly or indirectly be in control of the Company, unless such person
has provided certain required information to the Indiana Insurance Commissioner
(the "Indiana Commissioner") and the Indiana Commissioner has approved the
acquisition. Control of the Company is presumed to exist if any person
beneficially owns 10% or more of the voting securities of the Company.
Furthermore, the Indiana Commissioner may determine, after notice and hearing,
that control exists notwithstanding the absence of a presumption to that
effect. Consequently, no person may acquire, directly or indirectly, 10% or
more of the voting securities of the Company to be outstanding after the
Offerings, or otherwise acquire control of the Company, unless such person
has provided such required information to the Indiana Commissioner and the
Indiana Commissioner has approved such acquisition.
Transfer Agent and Registrar. The First National Bank of Boston serves
as Transfer Agent and Registrar for shares of the Company's Common Stock.
Preferred Stock
The Company's Preferred Stock has, upon issuance, preference over the
Common Stock with respect to the payment of dividends and the distribution of
assets in the event of liquidation, dissolution or winding up of the company.
Other relative rights,preferences and limitations of each series of Preferred
Stock, including dividend, redemption, liquidation, sinking fund, conversion
and other provisions, are determined by the Board of Directors in the
resolutions establishing and designating such series and as described in the
Prospectus Supplement relating to the series of Preferred Stock. The Series
A Preferred Stock and the Series E and F Preferred Stock constitute the only
series of Preferred
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<PAGE>
Stock currently authorized for issuance by the Board of Directors.
The Company's Articles of Incorporation provide that each holder of
Preferred Stock of any series from time to time outstanding shall be entitled
to one vote per share upon all matters submitted to vote at every meeting of
shareholders of the Company. Further, in the event that six or more quarterly
dividends, whether or not consecutive, on any series of Preferred Stock shall
be in default, the holders of any outstanding series of Preferred Stock as to
which such default exists shall be entitled, at the next annual meeting of
shareholders, to vote as a class to elect two directors of the Company. Such
right shall continue with respect to shares of cumulative Preferred Stock,
including the Series A Preferred and Series E and F Preferred Stock, until all
accumulated and unpaid dividends on all such shares, the holders of which were
entitled to vote at the previous annual meeting of shareholders, have been
paid or declared and set aside for payment and, with respect to shares of non-
cumulative Preferred Stock, if any, until any non-cumulative dividends have been
paid or declared and set apart for payment for four consecutive quarterly
dividend periods on all such shares, the holders of which were entitled to
vote at the previous annual meeting of shareholders.
The approval of the holders of record of at least two-thirds of the
outstanding shares of all series of Preferred Stock of the Company, voting as a
class, will be required to (a) amend the Company's Articles of Incorporation
to create or authorize any stock ranking prior to or on a parity with such
Preferred Stock with respect to the payment of dividends or distributions
upon dissolution, liquidation or winding up, or to create or authorize any
security convertible into shares of any such stock; (b) amend, alter, change
or repeal any of the express terms of the Preferred Stock, or any series
thereof, in any prejudicial manner (provided only holders of two-thirds of
the outstanding shares of the series prejudiced by such change or repeal need
consent to such action); (c)merge or consolidate with another corporation
whereby the Company is not the surviving entity, if thereby the rights,
preferences or powers of the Preferred Stock would be adversely affected or
Securities would thereupon be authorized or outstanding which could not
otherwise have been created without the approval of such Preferred
Stockholders; or (d) authorize, or revoke a previously authorized, voluntary
dissolution of the Company, approve any limitation of the term of the
existence of the Company or authorize the sale, lease, exchange or other
disposition of all or substantially all of the property of the Company.
In the event of voluntary or involuntary dissolution, liquidation or
winding-up of the Company, the holders of each series of the Preferred Stock
will be entitled to receive out of the assets of the Company available for
distribution to its shareholders, before distribution of assets is made to
holders of Common Stock or any other class of stock ranking junior to such
series of Preferred Stock upon liquidation, a liquidating distribution in an
amount per share as set forth in the Prospectus Supplement relating to such
series of Preferred Stock, plus accrued and unpaid dividends.
The Preferred Stock, when issued, will be fully paid and non-assessable.
Unless otherwise specified in the Prospectus Supplement relating to the
particular series of a Preferred Stock, each series of Preferred Stock will
be on a parity in all respect with other series of Preferred Stock.
Series A Preferred Stock
At June 30, 1994, the Company had issued and outstanding 45,556 shares
of Series A Preferred Stock. Cumulative dividends are payable quarterly, as
declared by the Board of Directors, on shares of Series A Preferred Stock at
the per annum rate of $3.00 per share. Upon the liquidation, dissolution or
winding up of the Company, the Series A Preferred Stock is entitled to a
liquidation preference of $80.00 per share, or approximately $3,644,480 in
the aggregate at June 30, 1994, plus accrued dividends, before any assets may
be distributed to holders of Common Stock or any other stock ranking junior to
the Series A Preferred Stock. The Series A Preferred Stock may be redeemed
at any time at the option of the Company, in whole or in part, at a
redemption price of $80.00 per share plus accrued dividends, and the Series A
Preferred Stock is convertible into Common Stock at the option of the holder
at a rate of eight shares of Common Stock (subject to adjustment) for each
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share of Series A Preferred Stock. In the six months ended June 30, 1994,
1,723 shares of Series A Preferred Stock were converted into shares of the
Company's Common Stock.
Series E and F Preferred Stock
The Company issued to The Dai-ichi Mutual Life Insurance Company
("Dai-ichi"), a mutual insurance company organized under the laws of Japan,
2,201,443 shares of Series E Preferred Stock on July 6, 1990 and 2,216,454
shares of Series F Preferred Stock on May 31, 1991. The holders
of the Series E and F Preferred Stock are entitled to receive, when and as
declared by the Company's Board of Directors, cumulative cash dividends at
the annual rate of 5 1/2% of the Liquidation Preference (as defined below)
payable quarterly on the 5th day of March, June, September and December.
Each share of Series E and F Preferred Stock may, at the option of the
holder, be converted into that number of fully paid and non-assessable shares
of Common Stock obtained by dividing the Liquidation Preference of each such
share of Preferred Stock being converted by the Conversion Price. The
Liquidation Preferences of the Series E and F Preferred Stock are $68.850
and $71.604, respectively. The Conversion Prices of the Series E and F
Preferred Stock are $34.425 and $35.802, respectively, but are increased
by 4 1/6% on July 6, 1995 and 4% on July 6, 1998.
The shares of Series E and F Preferred Stock are subject to both
mandatory and optional redemption provisions. The shares are subject to
mandatory redemption on July 6, 2002 by payment in cash of the respective
Liquidation Preference plus accrued dividends, if any. In lieu of mandatory
redemption, the Company may, at its option, issue in exchange for its then
outstanding shares of Series E and F Preferred Stock shares of non-convertible
Preferred Stock or Common Stock, which in either case are freely tradable and
have a fair market value equal to the respective Liquidation Preference of the
shares of Series E and F Preferred Stock plus any accrued dividends. The
Company may, at its option, redeem in cash, in whole or in part, any of the
Series E and F Preferred Stock which is not owned by Dai-ichi or its wholly-
owned subsidiaries at a redemption price per share equal to the respective
Liquidation Preference plus accrued dividends.
In connection with its purchase of the shares of Series E and F
Preferred Stock, Dai-ichi has agreed to vote its shares of such stock,together
with any shares of Common Stock owned by Dai-ichi, in accordance with the
recommendation of the Company's Board of Directors, or under certain
circumstances, in the same proportion as all other voting Securities voting on
the particular matter. Dai-ichi may dispose of such shares only upon certain
conditions, including that the shares first be offered for sale to the Company
and that the Shares be sold in a manner that would ensure a wide distribution
of the shares.
Registration Rights. Pursuant to an Investment Agreement between the
Company and Dai-ichi, dated as of June 25, 1990 (the "Investment Agreement"),
Dai-ichi and certain subsequent holders of Dai-ichi's shares are entitled
to certain registration rights covering such Preferred Stock, all
shares of Common Stock into which such Preferred Stock is convertible and all
shares of Common Stock or other Securities distributed with respect to such
shares of Preferred Stock or Common Stock (the "Registrable Securities").
Under the Investment Agreement, Dai-ichi (or certain subsequent holders
of Registrable Securities) has the right (the "Demand Right"), exercisable up
to three times, to require the Company to use its best efforts to effect the
registration of all or part of the Registrable Securities under the Securities
Act in connection with a public offering of such Registrable Securities. The
Demand Right may be exercisable at any time unless (i) the request for
registration is made within 120 days after the most recent registration
pursuant to exercise of a Demand Right, (ii) registration of the Registrable
Securities would adversely affect a public financing contemplated by the
Company at the time the request for registration is made, in which case a
"black out" period of up to 60 days would apply, (iii)
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<PAGE>
audited financial statements necessary for registration are unavailable or
(iv) registration would require disclosure of material information which the
Company wishes to delay for a bona fide business purpose.
In addition, Dai-ichi or any subsequent holder of Registrable Securities
has the right, exercisable one time only, to include their Registrable
Securities in a registration by the Company of any of its Securities having
the ordinary power to vote in the election of the director of the Company
(including a proposed registration of Common Stock) under the Securities Act,
unless (i) in the reasonable judgment of the Company, inclusion of any
Registrable Securities in the Company's registration statement at that time
would adversely affect the Company's own financing, (ii) the Company's
registration statement is withdrawn or (iii) the Company's registration of
Securities is in connection with a merger, acquisition, exchange offer or
subscription offer, stock option or a dividend reinvestment, or other
employee benefit plan. The Company is required to bear all registration
expenses in connection with the Registration of the Registrable
Securities pursuant to the Investment Agreement.
Common Share Equivalent Purchase Rights. The Company is party to a
Rights Agreement with The First National Bank of Boston, which relates to the
Series E and F Preferred Stock (the "Preferred Rights Agreement"). In general,
the Preferred Rights are intended to provide the holders of the Series E and F
Preferred Stock with the same rights as they would have had if they had
owned the shares of Common Stock into which the shares of Series E and F
Preferred are convertible. One common share equivalent purchase right (the
"Preferred Rights") was issued for each share of Series E and F Preferred
Stock. In accordance with the Preferred Rights Agreement, the Preferred
Rights entitle the holders of such Rights to purchase that number of shares
of Common Stock into which the shares of Series E and F Preferred Stock are
convertible at a price of $75 per share, subject to the same adjustments
described with respect to the Common Rights. Upon the occurrence of the same
triggering events outlined with respect to the Common Rights, each holder of
a Preferred Right shall be entitled to receive that number of common shares
of an Acquiring Person obtained by multiplying the current purchase price of
the Preferred Rights by the total number of shares of Common Stock for which
the Preferred Rights may be exercised, and dividing the product by 50% of
the current per share market price of the common share of the other person.
Alternatively, if a person beneficially owning 20% of the Common Stock
acquires the Company by means of a reverse merger in which the Company
survives or such person engages in certain "self-dealing" transactions each
Preferred Right not owned by the 20% holder becomes exercisable for the
number of shares of Common Stock which at the time would have a market value
of two times the exercise price of the Preferred Rights. The Preferred
Rights expire on November 21, 1996 and are subject to redemption and
cancellation.
REGULATION
State Supervision. The Company's insurance affiliates are subject to
regulation and supervision by the states, territories and foreign countries in
which they are admitted to do business. These jurisdictions generally maintain
supervisory agencies with broad discretionary powers relative to granting and
revoking licenses to transact business, regulating trade practices, licensing
agents, prescribing and approving policy forms, regulating premium rates for
some lines of business, establishing premium requirements, regulating
competitive matters, prescribing the form and content of financial statements
and reports,determining the reasonableness and adequacy of capital and surplus
and regulating the type and amount of investments permitted. The Company's
insurance subsidiaries conduct business in numerous jurisdictions and,
accordingly, are subject to the laws and regulations of each of those
jurisdictions. Most of the Company's principal insurance subsidiaries,
including The Lincoln National Life Insurance Company and American States
Insurance Company, are domiciled in Indiana and are primarily
regulated by the Indiana Commissioner.
As an insurance holding company, the Company is also subject to
regulatory requirements of the states where its insurance subsidiaries are
domiciled. For example, certain transactions involving an affiliated insurance
company, such as loans, extraordinary dividends or investments, in some
cases may require the prior approval of such company's primary regulators.
Additionally, these requirements
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<PAGE>
restrict the ability of any person to acquire control of the Company or any
of its subsidiaries engaged in the insurance business without prior
regulatory approval. Control is generally deemed to exist if an entity
beneficially owns 10% or more of the voting Securities of a company.
Such requirements may have the effect of preventing an acquisition
of the Company.
PLAN OF DISTRIBUTION
The Company may sell the Securities being offered hereby by any one or
more of the following methods: (i) through underwriters or dealers; (ii)
directly to one or more purchasers; (iii) through agents; or (iv) to both
investors and/or dealers through a specific bidding or auction process or
otherwise. The Prospectus Supplement with respect to the Securities sets forth
the terms of the offering of the Securities, including the name or names of
any underwriters, the purchase price of the Securities and the proceeds to
the Company from such sale, any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price
and any discounts or concessions allowed or reallowed or paid to dealers,
any bidding or auction process, any Securities exchanges on which the
Securities may be listed and any restrictions on the sale and delivery of
Securities in bearer form to U.S. persons.
If underwriters are used in the sale, the 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 Securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by underwriters.
The specific underwriter or underwriters or managing underwriter or
underwriters, as the case may be, will be set forth on the cover of the
Prospectus Supplements relating to such Securities and the members of the
underwriting syndicate, if any, will be named in such Prospectus Supplement.
Unless otherwise set forth in the Prospectus Supplement, the obligations of
the underwriters to purchase the Securities will be subject to certain
conditions precedent and the underwriters will be obligated to purchase all
the Securities if any are purchased. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers
may be changed from time to time.
Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer
or sale of the 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 Prospectus Supplement, any such agent will be acting on a best efforts
basis for the period of its appointment.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase Securities from the Company at the public offering
price set forth in the Prospectus Supplement pursuant to delayed delivery
contracts providing for payment and delivery on a specified date in the
future. Such contract will be subject only to those conditions set forth in
the Prospectus Supplement and the Prospectus Supplement will set forth the
commission payable for solicitation of such contracts.
Dealers, 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 Acts, or to
contribution with respect to payments which the dealers, agents or underwriters
may be required to make in respect thereof. Dealers, agents and underwriters
may be customers of, engage in transactions with, or perform services for the
Company in the ordinary course of business.
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<PAGE>
LEGAL OPINIONS
The validity of the Securities offered hereby will be passed upon for
the Company by Gardner, Carton & Douglas, 321 North Clark Street, Chicago ,
Illinois 60610. Gardner, Carton & Douglas will rely on the opinion of Jack D.
Hunter, Esq., Executive Vice President and General Counsel of the Company, as to
matters of Indiana law. As of August 16, 1994, Mr. Hunter beneficially owned
57,298 shares of Common Stock of the Company, including shares held in the
Lincoln National Corporation Savings and Profit-Sharing Plan and the Lincoln
National Corporation Employees' and Agents' Stock Bonus Plan,and holds options
to acquire an additional 55,602 shares of Common Stock, which options are
currently exerciseable except for options to acquire: 8,250 shares in each
of 1995 and 1996; 5,750 shares in 1997; and 3,000 shares in 1998.
EXPERTS
The consolidated financial statements and schedules of Lincoln National
Corporation and subsidiaries appearing in the Lincoln National Corporation's
Annual Report (Form 10-K) for the year ended December 31, 1993, have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference.
Such consolidated financial statements and schedules are incorporated herein
by reference in reliance upon such report given upon the authority of such
firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Securities and Exchange Commission fee $172,400
Legal fees and expenses $ 50,000*
Accounting fees and expenses $ 30,000*
Blue Sky fees and expenses (including counsel fees) $ 10,000*
Printing and engraving expenses $ 30,000*
Trustee fees and expenses $ 20,000*
Miscellaneous $ 27,600*
Total $340,000
_________________
* Estimated
Item 15. Indemnification of Directors and Officers
The following discussion of the indemnification provisions of the
Indiana Business Corporation Law (Indiana Code Section 23-1-37) (the "Law"),
which applies to the Registrant, is a summary, is not meant to be complete,
and is qualified in its entirety by reference to the Law.
The Law provides indemnity for present and past directors, officers,
employees and agents of the Registrant and of other entities, including
partnerships, trusts and employee benefit plans, who serve in such capacities
at the request of the Registrant, against obligations to pay as the result of
threatened, pending or completed actions, suits or proceedings, whether
criminal, civil, administrative or investigations to which they are parties,
if it is determined by a majority of disinterested directors, a committee of
the board of directors or special counsel selected by the board of directors
that they acted in good faith and they reasonably believed their conduct in
their official capacity was in the Registrant's best interests or if such
conduct was not in their official capacity, that the same was at least not
opposed to the Registrant's best interests, and that in criminal proceedings
they had reasonable cause to believe their conduct was lawful or no
reasonable cause to believe that it was unlawful. The Law provides for
mandatory indemnification for directors and officers against reasonable
expenses incurred if they were wholly successful in the defense of such
proceeding. Also termination of a proceeding by judgment, settlement or
like disposition is not determinative that the director, officer, employee
or agent did not meet the standard of conduct set forth in the Law. The
indemnity provided by the Law may be enforced in court and provision is
made for advancement of expenses. The Law also permits the Registrant to
insure its liability on behalf of the directors, officers, employees and
agents so indemnified and the Law does not exclude any other
rights in indemnification and advancement of expenses provided in the
Registrant's Articles of Incorporation, Bylaws, or resolutions of its
board of directors or its shareholders.
The Bylaws of the Registrant provide for the indemnification of its
officers, directors and employees against reasonable expenses, including
settlements, that may be incurred by them in connection with the defense of
any action, suit or proceeding to which they are made or threatened to be
made parties so long as (i) the individual's conduct was in good faith,
(ii) he reasonably believed that the conduct was in the Company's best
interests (or for non-corporate acts, not against the best interest of
the Company), and (iii) in the case of criminal proceedings, the
individual either had reason to believe the conduct was lawful, or no
reasonable cause to believe it was unlawful. In the case of directors, a
determination as to whether indemnification or reimbursement is proper
shall be made by a majority of disinterested directors, a committee of the
board of directors or special counsel selected by the board of directors.
In the case of individuals who are not directors, such determination shall
be made by the chief executive officer of the Registrant or, if the chief
executive officer so directs, in the manner it would be made if the
individual were a director of the Registrant.
Such indemnification may apply to claims arising under the Securities
Act of 1933, as amended. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted for directors, officers
or persons controlling the Registrant pursuant to the foregoing provisions,
the Registrant has been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in that Act and therefore unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
The Registrant maintains directors' and officers' liability insurance
with an annual aggregate limit of $50,000,000 for the current policy period,
subject to a $1,000,000 deductible at the corporate level, for each
wrongful act where corporate reimbursement is available to any director or
officer.
Item 16. Exhibits
Exhibit
Number Nature of Exhibit
1 Form of Underwriting Agreement
4(a) Articles of Incorporation of Lincoln National Corporation, as amended
(to be filed by amendment)
4(b) Bylaws, as amended (incorporated by reference to Exhibit No. 3(b)
to Registrant's Form 10-K for fiscal year ended December 31, 1991)
4(c) Rights Agreement, dated November 7, 1986 (incorporated by reference
to Registrant's 8-K (File No. 1-6028) filed November 18, 1986)
4(d) Rights Agreement, dated July 5, 1990 (incorporated by reference to
Exhibit No. 28 to Registrant's Registration Statement on Form S-3
(File No. 33-55652) filed December 11, 1992)
4(e) Form of Indenture between the Company and The Bank of New York
4(f) Form of Note
4(g) Form of Debenture
4(h) Form of Zero Coupon Security
5 Opinion and consent of Gardner, Carton & Douglas
12 Computation of the Ratio of Earnings to Fixed Charges
23(a) Consent of Ernst & Young LLP
23(b) Consent of Gardner, Carton & Douglas (included in Exhibit No. 5)
24 Powers of Attorney (Included on Signature Page)
25 Form T-1, Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Bank of New York
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement: (i) to
include any prospectus required by section 10(a)(3) of the Securities Act of
1933; (ii) to reflect in the prospectus any facts or events arising after the
effective date of this 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 this
Registration Statement, and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii)
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this Registration
Statement; (2) that for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; (3) to remove from registration by means
of a post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering; (4) for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; (5) insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described
above in Item 15 or otherwise, the Registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion
of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue; (6) 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 of 1933 shall be deemed to be part of this registration
statement as of the time it was declared effective; (7) 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; (8) to use its best
efforts to distribute prior to the opening of bids, to prospective bidders,
underwriters, and dealers, a reasonable number of copies of a prospectus
which at that time meets the requirements of section 10(a) of the
Securities Act of 1933, and relating to the securities offered at
competitive bidding, as contained in the registration statement, together
with any supplements thereto; and (9) to file an amendment to the
registration statement reflecting the results of bidding, the terms
of the reoffering and related matters to the extent required by the
applicable form, not later than the first use, authorized by the issuer
after the opening of bids, of a prospectus relating to the securities
offered at competitive bidding, unless no further public offering of such
securities by the issuer and no reoffering of such securities by
the purchasers is proposed to be made.
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 Fort Wayne, State of Indiana, on
the 11th day of August, 1994.
LINCOLN NATIONAL CORPORATION
By: /s/ Richard C. Vaughan
Richard C. Vaughan
Title: Senior Vice President
Each person whose signature appears below hereby appoints Richard
C. Vaughan, Donald L. Van Wyngarden and John L. Steinkamp and each of them
severally, acting alone and without the other, his true and lawful attorney-
in-fact with authority to execute in the name of each such person, and to
file with the Securities and Exchange Commission, together with any exhibits
thereto and other documents therewith, any and all amendments (including
without limitation post-effective amendments) to this Registration Statement
necessary or advisable to enable the Registration Statement to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof,
which amendments may make such other changes in the Registration Statement
as the aforesaid attorney-in-fact executing the same deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Ian M. Rolland
Ian. M. Rolland Chairman, Chief Executive Officer August 11, 1994
& Director (Principal Executive
Director)
/s/ Robert A. Anker
Robert A. Anker President, Chief Operating Officer August 11, 1994
& Director
/s/ Richard C. Vaughan
Richard C. Vaughan Senior Vice President August 11, 1994
(Principal Financial Officer)
/s/ Donald L. Van Wyngarden
Donald L. Van Wyngarden Second Vice President & August 11, 1994
Controller (Principal Accounting
Officer)
/s/ J. Patrick Barrett
J. Patrick Barrett Director August 11, 1994
/s/ Thomas D. Bell, Jr.
Thomas D. Bell, Jr. Director August 11, 1994
/s/ Daniel R. Efroymson
Daniel R. Efroymson Director August 11, 1994
/s/ Harry L. Kavetas
Harry L. Kavetas Director August 11, 1994
/s/ M. Leanne Lachman
M. Leanne Lachman Director August 11, 1994
/s/ Leo J. McKernan
Leo J. McKernan Director August 11, 1994
/s/ Earl L. Neal
Earl L. Neal Director August 11, 1994
/s/ John M. Pietruski
John M. Pietruski Director August 11, 1994
/s/ Jill S. Ruckelshaus
Jill S. Ruckelshaus Director August 11, 1994
/s/ Gordon A. Walker
Gordon A. Walker Director August 11, 1994
/s/ Gilbert R. Whitaker, Jr.
Gilbert R. Whitaker, Jr. Director August 11, 1994
LINCOLN NATIONAL CORPORATION
Underwriting Agreement
Debt Securities, Preferred Stock
and Common Stock
_____________, 199_
Dear Sirs:
From time to time, Lincoln National Corporation, an Indiana
corporation (the "Company"), proposes to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine,
and, subject to the terms and conditions stated herein and therein, to
issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (the "Underwriters" with respect to such Pricing
Agreement and the securities specified therein) the principal amount of
its securities or aggregate number of shares identified in Schedule I to
the applicable Pricing Agreement (the "Securities").
The terms and rights of any particular issuance of Securities
shall be as specified in the Pricing Agreement relating thereto and in
or pursuant to the Indenture or Articles of Incorporation of the Company
(including the Articles of Amendment), as applicable (the "Securities
Agreement") and identified in such Pricing Agreement.
Particular sales of Securities may be made from time to time to
the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single
firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their
representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an
obligation of any of the Underwriters to purchase the Securities. The
obligation of the Company to issue and sell any of the Securities and
the obligation of any of the Underwriters to purchase any of the
Securities shall be evidenced by the Pricing Agreement with respect to
the Securities specified therein. Each Pricing Agreement shall specify
the aggregate principal amount of such Securities or the total number of
shares, as the case may be, the initial public offering price of such
Securities, the purchase price to the Underwriters of such Securities,
the names of the Underwriters of such Securities, the names of the
Representatives of such Underwriter and the principal amount or number
of shares of such Securities to be purchased by each Underwriter and
shall set forth the date, time and manner of delivery of such Securities
and payment therefor. The Pricing Agreement shall also specify (to the
extent not set forth in the Securities Agreement and the registration
statement and prospectus with respect thereto) the terms of such
Securities. A Pricing Agreement shall be in the form of an executed
writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission
device designated to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement
and each Pricing Agreement shall be several and not joint.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act") , and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form (the file number of which is set
forth in Schedule II to the applicable Pricing Agreement), which has
become effective, for the registration under the Act of the Securities.
Such registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(x) under the Act and
complies in all other material respects with said Rule. The Company
proposes to file with the Commission pursuant to Rule 424 under the Act
a supplement or supplements to the form of prospectus included in such
registration statement relating to the Securities and the plan of
distribution thereof and has previously advised you of all further
information (financial and other) with respect to the Company to be set
forth therein. Such registration statement, including the exhibits
thereto, as amended at the date of this Agreement, is hereinafter called
the "Registration Statement"; such prospectus in the form in which it
appears in the Registration Statement is hereinafter called the "Basic
Prospectus"; and such supplemented form of prospectus, in the form in
which it shall be filed with the Commission pursuant to Rule 424
(including the Basic Prospectus as so supplemented) is hereinafter
called the "Final Prospectus." Any preliminary form of the Final
Prospectus which has heretofore been filed pursuant to Rule 424 is
hereinafter called the "Preliminary Final Prospectus." Any reference
herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934 (the "Exchange Act") on or before the date of this
Agreement, or the issue date of the Basic Prospectus, any Preliminary
Final Prospectus or the Final Prospectus, as the case may be; and any
reference herein to the terms " amend, " " amendment " or " supplement "
with respect to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Basic
Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference.
(b) As of the date hereof, when the Final Prospectus is
first filed or transmitted for filing pursuant to Rule 424 under the
Act, when, prior to the Closing Date (as hereinafter defined), any
amendment to the Registration Statement becomes effective (including the
filing of any document incorporated by reference in the Registration
Statement), when any supplement to the Final Prospectus is filed with
the Commission and at the Closing Date, (i) the Registration Statement,
as amended as of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, and, in the case of Securities issued
pursuant to an Indenture, the Indenture will comply in all material
respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the Exchange Act
and the respective rules thereunder and (ii) neither the Registration
Statement, as amended as of any such time, nor the Final Prospectus, as
amended or supplemented as of such time, will contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements
therein not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee
(the "Form T- 1") or (ii) the information contained in or omitted from
the Registration Statement or the Final Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with
information relating to such Underwriter or the underwriting
arrangements furnished in writing to the Company by any Underwriter
specifically for use in the Registration Statement and the Final
Prospectus.
(c) Each document incorporated by reference in the
Registration Statement and the Final Prospectus will comply in all
material respects, as amended at the time the Registration Statement
becomes effective, with the Exchange Act.
(d) The financial statements of the Company and its
consolidated subsidiaries included in the Registration Statement fairly
present the financial condition and results of operations of the Company
and its consolidated subsidiaries as of the dates indicated and the
results of operations and changes in financial position for the periods
therein specified; and, since the respective dates as of which
information is given in the Registration Statement and the Basic
Prospectus, there has not been any material change in the capital stock
(other than issuances of common stock upon the exercise of outstanding
employee stock options or pursuant to existing employee compensation
plans) or long-term debt of the Company or any of its subsidiaries or
any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, man-
agement, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus.
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate
and other) to own, lease and operate its properties and to conduct its
business as described in the Basic Prospectus and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to require
such qualification, or is subject to no material liability or disability
by reason of the failure to be qualified in any such jurisdiction; and
each subsidiary of the Company organized under the laws of the United
States representing 5% or more of the consolidated earnings before
income taxes and extraordinary items or consolidated total assets of the
Company (a "Significant Subsidiary") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation except where the failure to be so
qualified would not have a material adverse effect on the Company and
the subsidiaries taken as a whole.
(f) The Company has an authorized capitalization as set
forth in the Final Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable.
(g) The Securities have been duly authorized, and, when
the Securities are issued and delivered pursuant to this Agreement and
the Pricing Agreement with respect to such Securities, such Securities
will have been duly executed, authenticated, issued and delivered (and,
in the case of Securities representing capital stock of the Company,
will be fully paid and nonassessable) and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the applicable Securities Agreement, which will be
substantially in the form filed as an exhibit to the Registration
Statement; such Securities Agreement has been duly authorized and, in
the case of Securities issued pursuant to an Indenture, such Indenture
has been duly qualified under the Trust Indenture Act and, at the Time
of Delivery for any Securities, each Securities Agreement will
constitute a valid and legally binding agreement of the Company,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, fraudulent transfer, moratorium and other
similar laws relating to or affecting creditors' rights generally and to
general principles of equity; and the Securities Agreements and, upon
issuance, the Securities will conform to the descriptions thereof
contained in the Final Prospectus with respect to such Securities.
(h) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the Securities,
the applicable Securities Agreement, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any subsidiary
is a party or by which the Company or any subsidiary is bound or to
which any of the property or assets of the Company or any subsidiary is
subject, nor will such action result in any violation of the provisions
of the articles of incorporation or bylaws of the Company or any
subsidiary or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company, any
subsidiary or any of its respective properties; and no consent,
approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement, the applicable Pricing
Agreement or the applicable Securities Agreement, except such as have
been, or will have been prior to the time of delivery, obtained under
the Act and in the case of Securities to be issued under an Indenture,
the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters.
(i) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which would individually or in
the aggregate be reasonably likely to have a material adverse effect on
the consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(j) The Company and its subsidiaries own or possess, or
can acquire on reasonable terms, all material trademarks, service marks
and trade names necessary to conduct the business now operated by them,
and neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others
with respect to any trademarks, service marks or trade names that singly
or in the aggregate, would be reasonably likely to materially adversely
affect the conduct of the business, operations, financial condition or
income of the Company and its subsidiaries considered as a whole.
(k) To the best of the Company's knowledge and belief, the
Company has complied in all material respects with, and the conduct of
its business and the conduct of business by its subsidiaries does not
violate in any material respect any, statute, law, regulation, rule,
order or directive of any federal, state or local governmental
authority, including those of the Food and Drug Administration,
applicable to the Company and its subsidiaries.
2. Purchase and Sale. Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth,
the Company agrees to sell to each Underwriter, and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at the
purchase price set forth in Schedule II to the applicable Pricing
Agreement the principal amount or number of shares of the Securities set
forth opposite such Underwriter's name in Schedule I to the applicable
Pricing Agreement, except that, if Schedule II to the applicable Pricing
Agreement provides for the sale of Securities pursuant to delayed
delivery the respective principal amounts of Securities to be purchased
by the Underwriters shall be as set forth in Schedule I to the
applicable Pricing Agreement less the respective amounts of Contract
Securities determined as provided below. Securities to be purchased by
the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract
Securities."
If so provided in Schedule II to the applicable Pricing
Agreement the Underwriters are authorized to solicit offers to purchase
Securities from the Company pursuant to delayed delivery contracts
("Delayed Delivery Contracts"), substantially in the form of Annex II
hereto but with such changes therein as the Company may authorize or
approve. The Underwriters will endeavor to make such arrangements and,
as compensation therefor, the Company will pay to the Underwriters, for
the account of the Underwriters, on the Closing Date, the percentage set
forth in Schedule II to the applicable Pricing Agreement of the
principal amount of the Securities for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies,
pension funds, investment companies and educational and charitable
institutions that are not prohibited from purchasing the Securities.
The Company will enter into Delayed Delivery Contracts in all cases
where sales of Contract Securities arranged by the Underwriters have
been approved by the Company but, except as the Company may otherwise
agree, each such Delayed Delivery Contract must be for not less than the
minimum principal amount set forth in Schedule II to the applicable
Pricing Agreement and the aggregate principal amount of Contract
Securities may not exceed the maximum aggregate principal amount set
forth in Schedule II to the applicable Pricing Agreement. The
Underwriters will not have any responsibility in respect of the validity
or performance of Delayed Delivery Contracts. The principal amount of
Securities to be purchased by each Underwriter as set forth in Schedule
I to the applicable Pricing Agreement shall be reduced by an amount
which shall bear the same proportion to the total principal amount of
Contract Securities as the principal amount of Securities set forth
opposite the name of such Underwriter bears to the aggregate principal
amount set forth in Schedule I to the applicable pricing Agreement,
except to the extent that you determine that such reduction shall be
otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total principal amount of Securities to be
purchased by all Underwriters shall be the aggregate principal amount
set forth in Schedule I to the applicable Pricing Agreement less the
aggregate principal amount of Contract Securities.
3. Delivery and Payment. Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating thereto, in
definitive form to the extent practicable, and in such authorized
denominations and registered in such names as the Representatives may
request upon at least forty-eight hours' prior notice to the Company,
shall be delivered by or on behalf of the Company to the Underwriters
for the account of such Underwriter at the office, on the date and at
the time specified in the applicable Pricing Agreement (or such later
date not later than five business days after such specified date as the
Underwriters shall designate), which date and time may be postponed by
agreement between the Underwriters and the Company or as provided in
Section 8 hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing Date").
Delivery of the Underwriters' Securities shall be made to the
Underwriters for the respective accounts of the several Underwriters
against payment by the several Underwriters of the purchase price
thereof by certified or official bank check or checks payable in New
York Clearing House (next day) funds or as otherwise set forth in the
applicable Pricing Agreement.
The Company agrees to have the Underwriters' Securities
available for inspection, checking and packaging by the Underwriters in
New York, New York, not later than 1:00 P.M. on the business day prior
to the Closing Date.
4. Agreements. The Company agrees with the several
Underwriters that:
(a) Prior to the termination of the offering of the
Securities, the Company will not file any amendment of the Registration
Statement or supplement (including the Final Prospectus) to the Basic
Prospectus and will not provide additional information to the Commission
unless the Company has furnished you a copy for your review and provided
you with a reasonable opportunity to comment on such proposed amendment,
supplement or information prior to filing or submitting the same and
will not file any such proposed amendment or supplement and will not
submit such additional information to which you reasonably object. The
Company will promptly advise the Underwriters and will promptly confirm
such advice in writing (i) when the Final Prospectus shall have been
filed (or transmitted for filing) with the Commission pursuant to Rule
424, (ii) when any amendment to the Registration Statement relating to
the Securities shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment
of or supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for such purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(b) If, at any time when a prospectus relating to
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement
or omission or an amendment which will effect such compliance.
(c) As soon as practicable, the Company will make
generally available to its security holders and to the Underwriters a
consolidated earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section II (a) of the
Act and Rule 158 under the Act.
(d) The Company will furnish to the Underwriters and
counsel for the Underwriters, without charge, two signed copies of the
Registration Statement (including exhibits thereto) and such number of
conformed copies of the Registration Statement and of each amendment
thereto which shall become effective on or prior to the Closing Date
and, so long as delivery of a prospectus by an Underwriter or dealer may
be required by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any amendments thereof and
supplements thereto as the Underwriters may reasonably request.
(e) The Company will promptly from time to time arrange
for the qualification of the Securities for sale under the laws of such
jurisdictions as the Representatives may reasonably designate, will
maintain such qualifications in effect so long as required for the
distribution of the Securities, and will arrange for the determination
of the legality of the Securities for purchase by institutional
investors; provided that in connection therewith the Company shall not
be required to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction or to subject itself
to taxation in respect of doing business in any jurisdiction in which it
is not otherwise subject.
(f) Until the business day following the Closing Date, the
Company will not, without the consent of the Underwriters, offer, sell
or contract to sell, or announce the offering of, any debt securities
covered by the Registration Statement or any other registration
statement filed under the Act.
(g) The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the
Securities under the Act in connection with the preparation, printing
and filing of the Registration Statement, Basic Prospectus, Preliminary
Final Prospectus and the Final Prospectus and amendments and supplements
thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Agreement, any Pricing Agreement, any
Securities Agreement, any Blue Sky Survey, any Legal Investment
Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in
connection with the qualification of the Securities for offering and
sale under state securities and Blue Sky laws as provided in Section
4(e) hereof, including any reasonable fees and disbursements of counsel
for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (iv) any fees
charged by securities rating services for rating the Securities; (v) the
cost of preparing the Securities; (vi) the fees and expenses of any
Trustee, Paying Agent, or Transfer Agent and counsel for any such
Trustee, Paying Agent or Transfer Agent in connection with a Securities
Agreement and the Securities issued pursuant to any Securities
Agreement; and (vii) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, Section 6 and Section 7
hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of
the Securities by them, and any advertising expenses connected with any
offers they may make.
(h) The Company will prepare the Final Prospectus as
amended and supplemented in relation to the applicable Securities in a
form approved by the Representatives and file such Prospectus pursuant
to Rule 424(b) under the Act not later than the Commission's close of
business on the second business day following the execution and delivery
of the Pricing Agreement relating to the applicable Securities or, if
applicable, such other time as may be required by Rule 424(b) and file
promptly and simultaneously provide each Underwriter with a copy of all
reports and any definitive proxy or information statements required to
be filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Securities.
(i) During a period of five years from the effective date
of the Registration Statement, to furnish to the Representatives copies
of all reports or other communications (financial or other) furnished to
stockholders, and deliver to each Underwriter (i) as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any national securities exchange on
which the Securities or any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as the Representatives may from time
to time reasonably request (provided such financial statements and
reports are otherwise furnished to its stockholders generally or to the
Commission).
5. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwriters' Securities
under the Pricing Agreement relating to such Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the date hereof, as of the date of the
effectiveness of any amendment to the Registration Statement filed prior
to the Closing Date with respect to such Securities (including the
filing of any document incorporated by reference therein) and as of the
Closing Date with respect to such Securities, to the accuracy of the
statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement, as amended from time to time, shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened; all requests by the Commission for additional information
shall have been responded to the satisfaction of the Representatives;
and the Final Prospectus with respect to such Securities shall have been
filed or transmitted for filing with the Commission pursuant to Rule
424(b) not later than the Commission's close of business on the second
day following the execution and delivery of the Pricing Agreement
relating to the applicable Securities or, if applicable, such other time
as may be required by Rule 424(b).
(b) Subsequent to the execution and delivery of this
Agreement or a related Pricing Agreement and prior to the Closing Date,
there shall not have occurred any downgrading, nor shall notice have
been given of any intended or potential downgrading or other review in
the rating accorded any securities of, or guaranteed by, the Company by
any "nationally recognized statistical rating organization," as such
term is defined for purposes of Rule 436(g)(2) under the Act.
(c) The Company shall have furnished to the Underwriters
the opinion of Jack D. Hunter or the then General Counsel of the
Company, dated the Closing Date, to the effect that:
(i) The Company and each Significant Subsidiary of
the Company has been duly incorporated and is a duly
existing corporation under the laws of its respective state
of incorporation, with corporate power and authority to own
its properties and conduct its business as described in the
Final Prospectus; and neither the Company nor any subsidiary
is required to be qualified to do business as a foreign
corporation in any other jurisdiction in which failure to so
qualify would have a material adverse effect on the business
of the Company;
(ii) The applicable Securities Agreement has been
duly authorized, executed and delivered, and, in the case of
the Articles of Amendment, has been filed with the Secretary
of State of the State of Indiana and constitutes a legal,
valid and binding instrument enforceable against the Company
in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect);
(iii) The Securities have been duly authorized; the
Underwriters' Securities have been duly executed,
authenticated, issued and delivered; the Underwriters'
Securities constitute, and any Contract Securities, when
executed, authenticated, issued and delivered in the manner
provided in the applicable Securities Agreement and sold
pursuant to any Delayed Delivery Contracts, will constitute,
valid and legally binding obligations of the Company
entitled to the benefits and security provided by the
applicable Securities Agreement; and the Underwriters'
Securities conform, and the Contract Securities, when so
issued and delivered and sold, will conform, to the
description thereof contained in the Final Prospectus;
(iv) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement or any Delayed Delivery
Contract in connection with the issuance or sale of the
Securities by the Company, except such as have been obtained
and made under the Act and the Trust Indenture Act and such
as may be required under state securities laws;
(v) The execution, delivery and performance of the
applicable Securities Agreement, this Agreement and any
Delayed Delivery Contracts, and the issuance and sale of the
Securities, will not result in a breach or violation of any
of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any
governmental agency or body or any court, having
jurisdiction over the Company or any subsidiary of the
Company or any of their properties or any agreement or
instrument to which, to the knowledge of such counsel, the
Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of
the properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any
such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Securities as
contemplated by this Agreement, the applicable Securities
Agreement and any Delayed Delivery Contracts;
(vi) The descriptions in the Registration Statement
and Final Prospectus of statutes, legal and governmental
proceedings and contracts and other documents are accurate
and fairly present the information required to be shown; no
legal or governmental proceedings are required to be
described in the Final Prospectus which are not described as
required or of any contracts or documents of a character
required to be described in the Registration Statement or
Final Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
required; it being understood that such counsel need express
no opinion as to the financial statements or other financial
data contained in the Registration Statement or the Final
Prospectus;
(vii) This Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered
by the Company; and
(viii) Such counsel has no reason to believe that any
of the Registration Statement, the Final Prospectus and any
amendment or supplement, as of the respective effective date
or issue dates contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein
not misleading, and that the Final Prospectus, as amended or
supplemented as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any
material fact necessary to make the statements therein in
light of the circumstances under which they were made not
misleading; provided, that such counsel need render no
opinion as to that portion of the Registration Statement
which shall constitute the Form T-1; and after due inquiry,
no legal or governmental proceedings are required to have
been described in the Final Prospectus that are not
described as required in the Registration Statement or Final
Prospectus or to be filed as exhibits to the Registration
Statement that are not described and filed as required.
Solely for purposes of rendering the opinion referred
to in (ii) above, _________________________________ may
rely, as to matters of New York law, on the opinion of
__________________________ referred to below.
(d) The Underwriters shall have received an opinion, dated
such Closing Date, of Gardner, Carton & Douglas, counsel for the
Company, to the effect that:
(i) The Company has been duly incorporated and is a
duly existing corporation under the laws of the State of
Indiana, with corporate power and authority to own its
properties and conduct its business as described in the
Final Prospectus; and the Company is not required to be
qualified to do business as a foreign corporation in any
other jurisdiction in which the failure to so qualify would
have a material adverse effect on the condition (financial
or otherwise) of the Company;
(ii) The applicable Securities Agreement has been
duly authorized, executed and delivered, and, in the case of
Articles of Amendment, has been filed with the Secretary of
State for the State of Indiana and constitutes a legal,
valid and binding instrument enforceable against the Company
in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect) and the Inden-
ture has been duly qualified under the Trust Indenture Act;
(iii) The Securities have been duly authorized; the
Underwriters' Securities have been duly executed,
authenticated, issued and delivered; the Underwriters'
Securities constitute, and any Contract Securities, when
executed, authenticated, issued and delivered in the manner
provided in the applicable Securities Agreement and sold
pursuant to any Delayed Delivery Contracts, will constitute,
valid and legally binding obligations of the Company
entitled to the benefits and security provided by the
applicable Securities Agreement; and the Underwriters'
Securities conform, and the Contract Securities, when so
issued and delivered and sold, will conform, to the
description thereof contained in the Final Prospectus;
(iv) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement or any Delayed Delivery
Contract in connection with the issuance or sale of the
Securities by the Company, except such as have been obtained
and made under the Act and the Trust Indenture Act and such
as may be required under state securities laws;
(v) The execution, delivery and performance of the
applicable Securities Agreement, this Agreement and any
Delayed Delivery Contracts, and the issuance and sale of
Securities, will not result in a breach or violation of any
of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any
governmental agency or body or any court, to the knowledge
of such counsel after due inquiry, having jurisdiction over
the Company or any subsidiary of the Company or any of their
properties or any agreement or instrument to which, the
Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of
the properties of the Company or any such subsidiary is
subject, or the charter or by-laws of the Company or any
such subsidiary, and the Company has full power and
authority to authorize, issue and sell the Securities as
contemplated by this Agreement and any Delayed Delivery
Contracts;
(vi) (a) The Registration Statement has become
effective under the Act, and, to the best of the knowledge
of such counsel after due inquiry, no stop order suspending
the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and
the Registration Statement and the Final Prospectus, and
each amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the
respective rules thereunder and each document incorporated
by reference in the Registration Statement and the Final
Prospectus as amended as of the effective date of the
Registration Statement and the date of any amendment or
supplement thereto, complied as to form in all material
respects with the Exchange Act; (b) such counsel have no
reason to believe that either the Registration Statement or
the Final Prospectus, or any such amendment or supplement,
as of such respective dates, contained any untrue statement
of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the Final
Prospectus as amended or supplemented as of the Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the
statements therein , in light of the circumstances under
which they were made, not misleading; provided, that such
counsel need render no opinion under this clause (b) as to
that portion of the Registration Statement which shall
constitute the Form T-1; (c) and after due inquiry, such
counsel do not know of any legal or governmental proceedings
required to be described in the Final Prospectus which are
not described as required in the Registration Statement or
Final Prospectus or to be filed as exhibits to the
Registration Statement which are not described and filed as
required; it being understood that such counsel need express
no opinion as to the financial statements or other financial
data contained in the Registration Statement or the Final
Prospectus;
(vii) This Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and delivered
by the Company;
(viii) The securities issuable on conversion or
exchange of Securities, if any, have been duly authorized
and reserved for issuance upon conversion or exchange of the
Securities and, when issued upon such conversion or exchange
in accordance with the terms of the applicable Securities
Agreement, will have been validly issued and will be fully
paid and nonassessable, and the issuance of such securities
is not subject to any preemptive or similar rights;
(ix) The statements in the Final Prospectus under
"Description of Debt Securities" and "Description of
Preferred Stock and Common Stock", insofar as such
statements constitute a summary of documents referred to
therein, fairly present the information called for with
respect to such documents;
(x) If such Securities are intended to be listed,
the Securities and the Securities issuable on conversion or
exchange of Securities, if any, shall have been approved for
listing on the _______________, subject to official notice
of issuance.
In rendering such opinion, Gardner, Carton & Douglas
may rely, as to the incorporation of the Company and all
other matters of Indiana law, on the opinion of Jack D.
Hunter, Esq. referred to above. Solely for purposes of
rendering the opinion referred to in (ii) above, Gardner,
Carton & Douglas may rely, as to matters of New York law, on
the opinion of ____________________ referred to below.
(e) The Underwriters shall have received from
_______________________, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale
of the Securities, the Securities Agreement, any Delayed Delivery
Contracts, the Registration Statement, the Final Prospectus and other
related matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the Chairman of the Board, the
President or an Executive Vice President and the principal financial or
accounting officer of the Company, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that
to the best of their knowledge after reasonable investigation:
(i) The representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company
has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or
prior to the Closing Date;
(ii) No stop order suspending the effectiveness of
the Registration Statement, as amended, has been issued and
no proceedings for that purpose have been instituted or, to
the Company's knowledge, threatened; and
(iii) Since the date of the most recent financial
statements included in the Final Prospectus, there has been
no material adverse change in the condition (financial or
other), earnings, business or properties of the Company and
its subsidiaries, whether or not arising from transactions
in the ordinary course of business, except as set forth in
or contemplated in the Final Prospectus.
(g) At the Closing Date, Ernst & Young shall have
furnished to the Underwriters a letter or letters (which may refer to
letters previously delivered to one or more of the Underwriters), dated
as of the Closing Date, in form and substance satisfactory to the
Underwriters, confirming that they are independent public accountants
with respect to the Company and the Company's subsidiaries within the
meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect that:
(i) In their opinion the audited financial state-
ments and financial schedules included or incorporated in
the Registration Statement and the Final Prospectus and
reported on by them comply in form in all material respects
with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and
regulations;
(ii) They have made a review of the unaudited interim
financial statements included in the Registration Statement
in accordance with standards established by the American
Institute of Certified Public Accountants;
(iii) On the basis of the review referred to in clause
(ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials
of the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) Any unaudited financial statements of the
Company included or incorporated in the Registration Statement and
the Final Prospectus do not comply in form in all material
respects with the applicable accounting requirements of the Act
and the Exchange Act and the related published rules and regula-
tions or are not in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that
of the audited financial statements of the Company in the
Registration Statement and the Final Prospectus;
(B) The amounts included in any unaudited
'capsule' information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the amounts
set forth in the unaudited financial statements of the Company
for the same periods or were not determined on a basis substan-
tially consistent with that of the corresponding amounts in the
audited financial statements of the Company included or
incorporated in the Registration Statement and the Final
Prospectus;
(C) At the date of the latest available
balance sheet read by such accountants, and at a subsequent
specified date not more than five days prior to the date of this
Agreement, there was any decrease in the total capital and surplus
of the Company and its subsidiaries consolidated, any change in
the Common Stock or Preferred Stock or any increase in total
short-term or long-term debt of the Company and its subsidiaries
consolidated or, at the date of the latest available balance sheet
read by such accountants, there was any decrease in consolidated
total assets, as compared with amounts shown on the latest balance
sheet included in the Final Prospectus; or
(D) For the period from the closing date of
the latest income statement included in the Final Prospectus to
the closing date of the latest available income statement read by
such accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income statement
included in the Final Prospectus, in consolidated revenues,
earnings before cumulative effect of accounting changes, the total
or per share amounts of consolidated net income or in such other
items as the Representatives may reasonably request;
except in all cases set forth in clauses (C) and (D)
above for changes or decreases which the Final
Prospectus discloses have occurred or may occur or
which are described in such letter, in which case the
letter shall be accompanied by an explanation by the
Company as to the significance thereof unless said
explanation is not deemed necessary by the
Underwriters; and
(iv) They have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration
Statement and the Final Prospectus (in each case to the
extent that such dollar amounts, percentages and other
financial information are derived from the general
accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting
system or are derived directly from such records by analysis
or computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such
dollar amounts, percentages and other financial information
to be in agreement with such results, excluding any
questions of legal interpretation.
References to the Registration Statement and the Final Prospectus
in this paragraph (g) are to such documents as amended and supplemented
at the date of the letter.
In addition, at the time a Pricing Agreement is executed, Ernst &
Young shall have furnished to the Underwriters a letter or letters,
dated the date of such Pricing Agreement, in form and substance
satisfactory to the Underwriters, to the effect set forth above.
Subsequent to the respective dates as of which information is given in
the Registration Statement and the Final Prospectus, there shall not
have been (i) any material change or decrease in those items specified
in the letter or letters referred to in paragraph (g) of this Section 5
or (ii) any change, or any development involving a prospective material
adverse change, in or affecting the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries the
effect of which, in any case referred to in clause (i) or (ii) above,
is, in the judgment of the Underwriters, to make it impractical or
inadvisable to proceed with the offering or the delivery of the
Securities as contemplated by the Registration Statement and the Final
Prospectus.
(h) Prior to the Closing Date, the Company shall have
furnished to the Underwriters such further information, certificates and
documents as the Underwriters may reasonably request.
(i) The Company shall have accepted Delayed Delivery
Contracts in any case where sales of Contract Securities arranged by the
Underwriters have been approved by the Company.
If any of the conditions specified in this Section 5 shall
not have been fulfilled in all material respects when and as provided in
this Agreement, or if any of the opinions and certificates mentioned
above or elsewhere in this Agreement shall not be in all material
respects reasonably satisfactory in form and substance to the
Underwriters and its counsel, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the
Closing Date by the Underwriters. Notice of such cancellation shall be
given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 5 hereof is
not satisfied, because of any termination pursuant to Section 9 hereof
or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the
Company will reimburse the Underwriters severally upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
7. Indemnification and Contribution. The Company agrees to indemnify
and hold harmless each Underwriter and each person who controls any
Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon
and in conformity with written information relating to such Underwriter or
the underwriting arrangements furnished to the Company by such Underwriter
specifically for use in the Basic Prospectus, any Preliminary Prospectus
and the Final Prospectus, and (ii) such indemnity with respect to the
Basic Prospectus or any Preliminary Final Prospectus shall not inure to
the benefit of any Underwriter (or any person controlling such
Underwriter) from whom the person asserting any such loss, claim, damage
or liability purchased the Securities which are the subject thereof if
such person did not receive a copy of the Final Prospectus excluding
documents incorporated therein by reference at or prior to the
confirmation of the sale of such Securities to such person in any case
where such delivery is required by the Act and the untrue statement or
omission of a material fact contained in the Basic Prospectus or any
Preliminary Final Prospectus was corrected in the Final Prospectus. This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to written information relating to such Underwrit-
er or the underwriting arrangements furnished to the Company by such
Underwriter specifically for use in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
Section 7(a) or Section 7(b) of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under Section 7(a) or Section 7(b), notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under
Section 7(a) or Section 7(b). In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense thereof, with
counsel satisfactory to such indemnified party; provided, however, that if
the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from
the indemnifying party to such indemnified party of its election so as to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the
proviso to the next preceding sentence (it being understood, however, that
the indemnifying party shall not be liable for the expenses of more than
one separate counsel, approved by the Underwriters in the case of
paragraph (a) of this Section 7, representing the indemnified parties
under such paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying
party has authorized the employment of counsel for the indemnified party
at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii).
(d) If the indemnification provided for in this Section 7 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters of the Securities on the other from the
offering of the Securities to which such loss, claim, damage or liability
(or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice
required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on the one hand and
the Underwriters of the Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or action in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and such Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such Undewriters on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be
and equitable if contribution pursuant to this subsection (d) were deter-
mined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in
this subsection (d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to above in this subsection (d) shall be deemed
to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Securities under-
written by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8. Default by an Underwriter. If any of the Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased
by such Underwriter hereunder and such failure to purchase shall
constitute a default in the performance of its obligations under this
Agreement, the remaining Underwriter shall be obligated to take up and pay
for the Securities which the defaulting Underwriter agreed but failed to
purchase; provided, however, that in the event that the aggregate amount
of Securities which the defaulting Underwriter agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth
in Schedule I to the applicable Pricing Agreement, the remaining
Underwriter shall have the right to purchase all, but shall not be under
any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriter does not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Under-
writer or the Company. In the event of a default by either Underwriter as
set forth in this Section 8, the Closing Date shall be postponed for such
period not exceeding seven days, as the other Underwriter shall determine
in order that the required changes in the Registration Statement and the
Final Prospectus or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any
defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination
in the absolute discretion of the Underwriters, by notice given to the
Company prior to delivery of and payment for the Securities, if prior to
such time (i) trading in the Company's Common Stock shall have been
suspended or materially limited by the Commission or the New York Stock
Exchange or trading in securities generally on the New York Stock Exchange
shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there
shall have occurred any outbreak or escalation of hostilities or any
change in financial markets in the United States or any calamity or crisis
that, in the judgment of the Underwriters, makes it impracticable or
inadvisable to market the Securities in the manner contemplated.
10. Representations and Indemnities to Survive. The respective
agreement, representations, warranties, indemnities and other statements
of the Company or its officers and of the Underwriters set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
to the Company or any of the officers, directors or controlling persons
referred to in Section 7 hereof, and will survive delivery of and payment
for the Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be
mailed, delivered, telecopied or telegraphed and confirmed to them, at the
address specified in Schedule I hereto; or, if sent to the Company, will
be mailed, delivered, telecopied or telegraphed to and confirmed with it
at Lincoln National Corporation, 1300 South Clinton Street, Post Office
Box 1110, Fort Wayne, Indiana 46801, telecopy number (219) 455-1785,
attention of the Legal Department.
12. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
14. Counterparts. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return to us four counterparts hereof, and upon the acceptance
hereof by you, as the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement between each of you and the Company.
Very truly yours,
Lincoln National Corporation
By:______________________
Name and Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
By:_____________________
Name and Title:
ANNEX I
Pricing Agreement
_________, 1993
Dear Sirs:
Lincoln National Corporation, an Indiana corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated _________ (the "Underwriting Agreement"),
between the Company on the one hand and __________ on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and
as of the date of this Pricing Agreement, except that each representation
and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty
as of the date of the Underwriting Agreement in relation to the Prospectus
(as therein defined), and also a representation and warranty as of the date
of this Pricing Agreement in relation to the Prospectus as amended or
supplemented relating to the Designated Securities which are the subject
of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein
as therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to the Underwriting Agreement and the address of the
Representatives are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus,as the case may be, relating to the Designated Securities,
in the form heretofore delivered to you is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount or the number of shares, as the case may be,
of Designated Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein
by reference, constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on the part of the Representatives as to authority of the
signers hereof.
Very truly yours,
LINCOLN NATIONAL CORPORATION
By:________________________________
Accepted as of the date hereof:
By:___________________________
SCHEDULE I
Principal Amount
or Number of Shares
of Securities to
Underwriters Be Purchased
$
Total............. $
SCHEDULE II
Underwriting Agreement dated ____________ ___, 19_
Registration Statement No. _____________
Underwriters:
Title, Purchase Price and Description of Securities:
Title:
Aggregate principal amount:
Number of Shares:
Price to the public:
Purchase price (include accrued interest or amortization, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Maturity:
Interest Rate:
Interest Payment Dates:
Closing Date, Time and Location:
Delayed Delivery Arrangements:
Modification of items to be covered by the letter from Ernst & Young
delivered pursuant to Section 5(g) at the time this Agreement is executed:
Addresses of Underwriters for purposes of this Agreement:
Delayed Delivery Contract
___________ ___. _____
Dear Sirs:
The undersigned hereby agrees to purchase from Lincoln National Corporation
(the "Company"), and the Company agrees to sell to the undersigned, on _____
___, 19__ (the "Delivery Date"), $ _________ principal amount [____________
shares] of the Company's _______ (the "Securities") offered by the Company's
Prospectus dated _________ ___, 19__, related Prospectus Supplement dated
_________ ___, 19__, receipt of a copy of which is hereby acknowledged, at a
purchase price of __% of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from ________ ___,
19__, to the date of payment and delivery, $___________ per share and on the
further terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 AM, New York City time, on the Delivery Date to or upon
the order of the Company in New York Clearing House (next day) funds, at
your office or at such other place as shall be agreed between the Company
and the undersigned, upon delivery to the undersigned of the Securities in
definitive fully registered form and in such authorized denominations and
registered in such names as the undersigned may request by written or
telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date. If no request is received,
the Securities will be registered in the name of the undersigned and issued
in a denomination equal to the aggregate principal amount of Securities
to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the
conditions (and neither party shall incur any liability by reason of the
failure thereof) and (1) the purchase of Securities to be made by the
undersigned, which purchase the undersigned represents is not prohibited on
the date hereof, shall not on the Delivery Date be prohibited under the
laws of the jurisdiction to which the undersigned is subject, and (2) the
Company, on or before the Delivery Date, shall have sold to certain
underwriters (the "Underwriters") such principal amount of the Securities
as is to be sold to them pursuant to the Underwriting Agreement referred
to in the Prospectus and Prospectus Supplement mentioned above. Promptly
after completion of such sale to the Underwriters, the Company will mail
or deliver to the undersigned at its address set forth below notice to
such effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the Securities,
and the obligation of the Company to cause the Securities to be sold and
delivered, shall not be affected by the failure of any purchaser to take
delivery of and make payment for the Securities pursuant to other contracts
similar to this contract.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Securities
hereby agreed to be purchased by it under the laws of the jurisdiction or
jurisdictions to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract
is acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
__________________________
(Name of Purchaser)
By:________________________
(Signature and Title of Officer)
___________________________
Address
Accepted:
LINCOLN NATIONAL CORPORATION
By:__________________________
(Authorized Signature)
LINCOLN NATIONAL CORPORATION
Issuer
_______________________
INDENTURE
Dated as of
_______________________
The Bank of New York
Trustee
_______________________
Providing for the Issuance of
Debt Securities in Series
<PAGE>
CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
310(a)(1). . . . . . . . . . . . . . . . . . . . . 7.10
310(a)(2). . . . . . . . . . . . . . . . . . . . . 7.10
310(a)(3). . . . . . . . . . . . . . . . . . . . . N.A.
310(a)(4). . . . . . . . . . . . . . . . . . . . . N.A.
310(a)(5). . . . . . . . . . . . . . . . . . . . . N.A.
310(b) . . . . . . . . . . . . . . . . . . 7.08; 7.10
310(c) . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . 7.11
311(b) . . . . . . . . . . . . . . . . . . . . . 7.11
311(c) . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . 2.05
312(b) . . . . . . . . . . . . . . . . . . . . 13.03
312(c) . . . . . . . . . . . . . . . . . . . . 13.03
313(a) . . . . . . . . . . . . . . . . . . . . . 7.06
313(b)(1). . . . . . . . . . . . . . . . . . . . . N.A.
313(b)(2). . . . . . . . . . . . . . . . . . . . . 7.06
313(c) . . . . . . . . . . . . . . . . . . . . . . 7.06
313(d) . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . 4.04
314(b) . . . . . . . . . . . . . . . . . . . . . . N.A.
314(c)(1). . . . . . . . . . . . . . . . . . . . 13.04
314(c)(2). . . . . . . . . . . . . . . . . . . . 13.04
314(c)(3). . . . . . . . . . . . . . . . . . . . N.A.
314(d) . . . . . . . . . . . . . . . . . . . . . N.A.
314(e) . . . . . . . . . . . . . . . . . . . . . 13.05
314(f) . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . 7.01(b)
315(b) . . . . . . . . . . . . . . . . . . . . . 7.05
315(c) . . . . . . . . . . . . . . . . . . . . . 7.01(a)
315(d) . . . . . . . . . . . . . . . . . . . . . 7.01(c)
315(e) . . . . . . . . . . . . . . . . . . . . . 6.12
316(a)(last sentence). . . . . . . . . . . . . . .13.06
316(a)(1)(A) . . . . . . . . . . . . . . . . . . . 6.09
316(a)(1)(B) . . . . . . . . . . . . . . . . . . . 6.10
316(a)(2). . . . . . . . . . . . . . . . . . . . . N.A.
316(b) . . . . . . . . . . . . . . . . . . . . . . 6.07
317(a)(1). . . . . . . . . . . . . . . . . . . . . 6.04
317(a)(2). . . . . . . . . . . . . . . . . . . . . 6.04
317(b) . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . 13.01
N.A. means Not Applicable
Note: This cross-reference table is not part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Section Heading Page
ARTICLE ONE
Definitions and Incorporation by Reference
SECTION 1.01 Definitions . . . . . . . . . . . . . . . .1
SECTION 1.02 Incorporation by Reference of Trust
Indenture Act . . . . . . . . . . . . . . .5
SECTION 1.03 Rules of Construction . . . . . . . . . . .5
ARTICLE TWO
The Securities
SECTION 2.01 Terms and Form. . . . . . . . . . . . . . .5
SECTION 2.02 Execution and Authentication. . . . . . . .8
SECTION 2.03 Registrar and Paying Agent. . . . . . . . .10
SECTION 2.04 Paying Agent to Hold Money in Trust . . . .10
SECTION 2.05 Securityholder Lists. . . . . . . . . . . .10
SECTION 2.06 Transfer, Registration and Exchange . . . .11
SECTION 2.07 Replacement Securities. . . . . . . . . . .13
SECTION 2.08 Outstanding Securities. . . . . . . . . . .13
SECTION 2.09 Temporary Securities. . . . . . . . . . . .14
SECTION 2.10 Securities in Global Form . . . . . . . . .14
SECTION 2.11 Cancellation. . . . . . . . . . . . . . . .14
SECTION 2.12 Defaulted Interest. . . . . . . . . . . . .15
SECTION 2.13 Persons Deemed Owners . . . . . . . . . . .15
ARTICLE THREE
Redemption
SECTION 3.01 Applicability of Article. . . . . . . . . .15
SECTION 3.02 Notice to Trustee . . . . . . . . . . . . .16
SECTION 3.03 Selection of Securities to Be Redeemed. . .16
SECTION 3.04 Notice of Redemption. . . . . . . . . . . .16
SECTION 3.05 Effect of Notice of Redemption. . . . . . .18
SECTION 3.06 Deposit of Redemption Price or Securities .18
SECTION 3.07 Securities Redeemed in Part . . . . . . . .18
(i)
<PAGE>
ARTICLE FOUR
Covenants
SECTION 4.01 Payment of Securities . . . . . . . . . . .19
SECTION 4.02 Maintenance of Office or Agency . . . . . .19
SECTION 4.03 Money for Securities Payments to Be
Held in Trust . . . . . . . . . . . . . . .20
SECTION 4.04 SEC Reports . . . . . . . . . . . . . . . .21
SECTION 4.05 Statement as to Compliance. . . . . . . . .21
SECTION 4.06 Limitations on Liens on Stock of
Restricted Subsidiaries . . . . . . . . . 21
SECTION 4.07 Limitations on Issue or Disposition
of Stock of Restricted Subsidiaries. .. . .22
SECTION 4.08 Waiver of Certain Covenants . . . . . . . .22
ARTICLE FIVE
Successor Corporation and Assumption
SECTION 5.01 When Company May Merge, etc.. . . . . . . .23
SECTION 5.02 Successor Corporation Substituted . . . . .23
ARTICLE SIX
Defaults and Remedies
SECTION 6.01 Events of Default . . . . . . . . . . . . .23
SECTION 6.02 Collection of Indebtedness by Trustee;
Trustee May Prove Debt .. . . . . . . . . .25
SECTION 6.03 Application of Proceeds . . . . . . . . . .27
SECTION 6.04 Suits for Enforcement . . . . . . . . . . .27
SECTION 6.05 Restoration of Rights on Abandonments of
Proceedings . . . . . . . . . . . . . . . .28
SECTION 6.06 Limitations on Suits by Securityholders . .28
SECTION 6.07 Unconditional Right of Securityholder
to Institute Certain Suits .. . . . . . . .28
SECTION 6.08 Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default . . . . . .29
SECTION 6.09 Control by Holders of Securities. . . . . .29
SECTION 6.10 Waiver of Past Defaults . . . . . . . . . .30
SECTION 6.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances.. . . . .30
SECTION 6.12 Right of Court to Require Filing of
Undertaking to Pay Costs . . . . . . . . .30
(ii)
<PAGE>
ARTICLE SEVEN
Trustee
SECTION 7.01 Duties of Trustee . . . . . . . . . . . . .31
SECTION 7.02 Rights of Trustee . . . . . . . . . . . . .33
SECTION 7.03 Individual Rights of Trustee. . . . . . . .33
SECTION 7.04 Trustee's Disclaimer. . . . . . . . . . . .33
SECTION 7.05 Notice of Defaults. . . . . . . . . . . . .33
SECTION 7.06 Reports by Trustee to Holders . . . . . . .33
SECTION 7.07 Compensation and Indemnity. . . . . . . . .34
SECTION 7.08 Replacement of Trustee. . . . . . . . . . .34
SECTION 7.09 Successor Trustee by Merger, etc. . . . . .35
SECTION 7.10 Eligibility; Disqualification . . . . . . .36
SECTION 7.11 Preferential Collection of Claims against
Company . . . . . . . . . . . . . . . . . .36
ARTICLE EIGHT
Discharge of Indenture
SECTION 8.01 Termination of the Company's Obligations. .36
SECTION 8.02 Termination of the Company's Obligations
under Certain Circumstances.. . . . . . . .37
SECTION 8.03 Application of Trust Money. . . . . . . . .38
SECTION 8.04 Repayment to Company. . . . . . . . . . . .38
SECTION 8.05 Indemnity for Government Obligations. . . .38
ARTICLE NINE
Amendments, Supplements and Waivers
SECTION 9.01 Without Consent of Holders. . . . . . . . .39
SECTION 9.02 With Consent of Holders . . . . . . . . . .40
SECTION 9.03 Compliance with Trust Indenture Act . . . .41
SECTION 9.04 Revocation and Effect of Consents . . . . .41
SECTION 9.05 Notation on or Exchange of Securities . . .41
SECTION 9.06 Trustee to Sign Amendments, etc.. . . . . .41
ARTICLE TEN
Repayment at the Option of Holders
SECTION 10.01 Applicability of Article. . . . . . . . . .42
ARTICLE ELEVEN
Concerning the Securityholders
SECTION 11.01 Evidence of Action Taken by Securityholders.42
SECTION 11.02 Proof of Execution of Instruments and of
Holding of Securities. .. . . . . . . . . .42
SECTION 11.03 Holders to be Treated as Owners . . . . . . 43
(iii)
<PAGE>
SECTION 11.04 Securities Owned by Company Deemed Not
Outstanding . . . . . . . . . . . . . . . . 44
SECTION 11.05 Right of Revocation of Action Taken . . . . 44
SECTION 11.06 Meetings of Holders . . . . . . . . . . . . 45
SECTION 11.07 Call, Notice and Place of Meetings. . . . . 45
SECTION 11.08 Persons Entitled to Vote at Meetings. . . . 45
SECTION 11.09 Quorum; Action. . . . . . . . . . . . . . . 45
SECTION 11.10 Determination of Voting Rights;
Conduct and Adjournment of Meetings. . . . .46
SECTION 11.11 Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . . . .46
ARTICLE TWELVE
Sinking Funds
SECTION 12.01 Applicability of Article. . . . . . . . . . 47
SECTION 12.02 Satisfaction of Sinking Fund Payments with
Securities . . . . . . . . . . . . . . . . .47
SECTION 12.03 Redemption of Securities for Sinking Fund . 48
ARTICLE THIRTEEN
Miscellaneous
SECTION 13.01 Trust Indenture Act Controls. . . . . . . . 48
SECTION 13.02 Notices . . . . . . . . . . . . . . . . . . 48
SECTION 13.03 Communication by Holders with Other Holders.50
SECTION 13.04 Certificate and Opinion as to Conditions
Precedent . . . . . . . . . . . . . . . . . 51
SECTION 13.05 Statements Required in Certificate or
Opinion . . . . . . . . . . . . . . . . . . 51
SECTION 13.06 When Treasury Securities Disregarded. . . . 51
SECTION 13.07 Legal Holidays. . . . . . . . . . . . . . . 51
SECTION 13.08 Governing Law . . . . . . . . . . . . . . . 52
SECTION 13.09 No Adverse Interpretation of Other
Agreements . . . . . . . . . . . . . . . . 52
SECTION 13.10 Successors. . . . . . . . . . . . . . . . . 52
SECTION 13.11 Duplicate Originals . . . . . . . . . . . . 52
SECTION 13.12 Securities in Foreign Currencies. . . . . . 52
SIGNATURES . . . . . . . . . . . . . . . . . . . .53
(iv)
<PAGE>
INDENTURE dated as of _____ ,_____ , between Lincoln National
Corporation, a company incorporated under the laws of Indiana (the "Company"),
and The Bank of New York, a New York trust company, as trustee hereunder
("Trustee").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's Securities
issued hereunder:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Additional Amounts" means any additional amounts which are required by
a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes
imposed on certain Holders, or as otherwise specified in the terms of a
Security established pursuant to Section 2.01, and which are owing to such
Holders.
"Agent" means any Registrar, Paying Agent or co-Registrar or agent for
service of notice and demands. See Section 2.03.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have the meanings correlative
to the foregoing.
"Authorized Newspaper" means a newspaper printed in the official
language of the country of publication and customarily published at least
once a day on each Business Day in each calendar week and of general
circulation in New York, New York or in any other place as required in this
Indenture, whether or not such newspaper is published on Legal Holidays, or,
with respect to the Securities of any series, such other newspaper(s), as
may be specified in or pursuant to the Board Resolution of the Company or
supplement to this Indenture pursuant to which such series of Securities is
issued. Whenever, under the provisions of this Indenture or such Board
Resolutions, two or more publications of a notice or other communication are
required or permitted, such publications may be in the same or different
newspapers. If, because of temporary or permanent suspension of publication
or general circulation of any newspaper or for any other reason, it is
impossible or impracticable to publish any notices required by this Indenture
or a Board Resolution in the manner provided, then such publication in lieu
thereof or such other notice as shall be made with the approval of the
Trustee shall constitute a sufficient publication of such notice.
"Bankruptcy Law" shall have the meaning set forth in Section 7.07.
"Bearer Security" means any Security in the form established pursuant to
Section 2.01 which is payable to bearer.
"Board of Directors" means the Board of Directors of the Company or the
Executive Committee or any other committee of the Board of Directors duly
authorized to act for the Company hereunder.
"Board Resolution" means a copy of the resolutions certified by the
Secretary or an Assistant Secretary of the Company as properly adopted by the
Board of Directors of the Company and in full force and effect and delivered
to the Trustee.
"Business Day", except as may otherwise be provided in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, with respect to any Place of Payment means each
<PAGE>
Monday, Tuesday, Wednesday, Thursday and Friday which is not a Legal
Holiday in that Place of Payment.
"Capital Stock" means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in
(however designated) corporate stock.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to the Indenture and thereafter means such
successor.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman of the Board,
the President, the Chief Financial Officer or the Treasurer thereof or any other
officer specifically authorized to act by the Board of Directors of the Company,
and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered.
"Corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Debt" shall have the meaning set forth in Section 4.06.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Discharged" shall have the meaning set forth in Section 8.02.
"Event of Default" shall have the meaning set forth in Section 6.01.
"Government Obligations" with respect to any series of Securities means
direct noncallable obligations of the government which issued the currency in
which the Securities of that series are denominated, noncallable obligations
the payment of the principal of and interest on which is fully guaranteed by
such government, and noncallable obligations on which the full faith and
credit of such government is pledged to the payment of the principal thereof
and interest thereon, and shall also include a depositary receipt issued by a
bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder
of such depositary receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment
of interest on or principal of the Government Obligation
evidenced by such depositary receipt.
"Holder" or "Securityholder" means, with respect to a Registered
Security, a Person in whose name such Security is registered on the Security
Register and, with respect to a Bearer Security or any coupon, the bearer
thereof.
"Indenture" means this Indenture, as it may from time to time be amended
or supplemented.
"Independent Public Accountants" means independent public accountants or
a firm of independent public accountants who may be the independent public
accountants regularly retained by the Company or who may be other independent
public accountants. Such public accountants or firm shall be entitled to rely
upon any Opinion of Counsel as to the interpretation of any legal matters
relating to the Indenture or certificates required to be provided hereunder.
-2-
<PAGE>
"Legal Holiday" shall have the meaning set forth in Section 13.07.
"Lien" means any mortgage, pledge, security interest or lien.
"Notice of Default" shall have the meaning set forth in Section 6.01.
"Officer" means the Chairman of the Board, the President, any Vice
President, the Treasurer or Secretary thereof or any other officer specifically
authorized to act by the Board of Directors of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by
an Officer other than the Secretary and an Assistant Treasurer or an Assistant
Secretary of the Company.
"Opinion of Counsel" means a written opinion of legal counsel, who
(except as otherwise expressly provided in this Indenture) may be an employee of
or counsel to or for the Company, or any other legal counsel acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which provides
that an amount less than its principal amount is due and payable upon
acceleration of the maturity thereof after an Event of Default.
"Outstanding", when used with respect to Securities or a series, shall
have the meaning set forth in Section 2.08.
"Paying Agent" shall have the meaning set forth in Section 2.03.
"Periodic Offering" means an offering of Securities of a series from
time to time the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the maturity or
maturities thereof, the original issue date or dates thereof, the redemption
provisions, if any, and any other terms specified as contemplated by Section
2.01 with respect thereto, are to be determined by the Company, or one or
more of the Company's agents designated in an Officers' Certificate, upon
the issuance of such Securities.
"Person" means any individual, Corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Securities of any
series, means the place or places where the principal of and interest and any
Additional Amounts on the Securities of that series are payable as specified as
provided pursuant to Section 2.01.
"principal", whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any," and, whenever used with reference to any Security which by its terms
provides (or as to which mandatory provisions of law provide) that less than
the principal amount thereof shall be due and payable upon a declaration of
the acceleration of the maturity thereof, and in the contexts of such a
declaration, of proving a claim under bankruptcy, insolvency or similar laws,
or of determining whether the holders of the requisite aggregate principal
amount of the Securities of any or all series then Outstanding have concurred
in any request, demand, authorization, direction, notice, consent, waiver or
other action by Securityholders hereunder, shall mean the portion of such
principal amount so provided to be due and payable upon a declaration of
acceleration of the maturity thereof.
"Redemption Date" means the date fixed for redemption of any Security to
be redeemed pursuant to this Indenture.
-3-
<PAGE>
"Redemption Price" means the principal amount of any Security to be
redeemed.
"Registered Security" means any Security registered in the Security
Register.
"Registrar" shall have the meaning set forth in Section 2.03.
"Restricted Subsidiary" means each of American States Insurance Company
and The Lincoln National Life Insurance Company so long as it remains a
Subsidiary, and any successor to all or a principal part of the business or
properties of any thereof and any other subsidiary which the Board of
Directors designates as a Restricted Subsidiary.
"SEC" means the Securities and Exchange Commission as from time to time
constituted, created under the Securities Exchange Act of 1934, as amended,
or if at any time after the execution of this instrument such Commission is
not existing and performing the duties assigned to it under the TIA, then the
body performing such duties at such time.
"Securities" means the debt securities, as amended or supplemented from
time to time pursuant to this Indenture, that are issued under this Indenture.
"Security Register" shall have the meaning set forth in Section 2.03.
"Subsidiary" means any corporation of which at the time of determination
the Company and/or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the shares of Voting Stock.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Section
77aaa-77bbbb), as amended from time to time.
"Trustee" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"United States" means the United States of America (including the States
and the District of Columbia), its territories and possessions and other areas
subject to its jurisdiction.
"U.S. Depository" or "Depository" means, with respect to the Securities
of any series issuable or issued in whole or in part in the form of one or
more global Securities, the Person designated as U.S. Depository pursuant to
Section 2.01, which must be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and, if so provided pursuant to Section 2.01
with respect to the Securities of any series, any successor to such Person.
If at any time there is more than one such Person, "U.S. Depository" shall
mean, with respect to any series of Securities, the qualifying entity which
has been appointed with respect to the Securities of that series.
"Voting Stock" means stock of a Corporation of the class or classes
having general voting power under ordinary circumstances in the election of
directors, managers or trustees of such Corporation (irrespective of whether
or not at the time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity on a series of
Securities at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
-4-
<PAGE>
SECTION 1.02 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings thereby assigned to them.
SECTION 1.03 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural, and in the plural
include the singular;
(4) an accounting term not otherwise defined has the meaning assigned to
it in accordance with United States generally accepted accounting principles;
and
(5) the Article and Section headings herein and in the Table of
Contents are for convenience only and do not constitute a part of this
Indenture and shall not affect the meaning, construction or effect of this
Indenture.
ARTICLE TWO
THE SECURITIES
SECTION 2.01 Terms and Form.
The aggregate principal amount of Securities that may be authenticated
and delivered under this Indenture is unlimited. The Securities may be
issued in one or more series of Securities and shall bear the title, interest,
if any, at the rates and from the dates, shall mature at the times, may be
redeemable at the prices and upon the terms, shall be denominated and payable
at the place or places and in the currency or currencies (which may be other
than United States dollars), including composite currencies, and shall contain
or be subject to such other terms as shall be approved by or pursuant to a
Board Resolution of the Company or in one or more supplements to this
Indenture.
The Securities of each series hereunder shall be in one or more forms
approved from time to
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time by or pursuant to a Board Resolution of the Company or
in one or more supplements to this Indenture establishing the following:
(1) the title or designation of the Securities and the series in
which such Securities shall be included (which, unless such Securities
constitute part of a series of Securities previously issued, shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of such title or the Securities of such series which may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration or transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Sections 2.06, 2.07, 2.09 or 3.07);
(3) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both; any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the
series may be exchanged for Registered Securities of the series; and
whether any Securities of the series are to be issuable initially in
global form and, if so, (i) whether beneficial owners of interests in
any such global Security may exchange such interest for Securities of
such series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if other
than in the manner specified in Section 2.09 and (ii) the name of the
Depository or the U.S. Depository, as the case may be, with respect to
any global Security;
(4) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(5) if Securities of the series are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form (representing all of the Outstanding
Bearer Securities of the series) payable in respect of any date or dates
prior to the exchange of such temporary Bearer Security for definitive
Securities of the series shall be paid to any clearing organization with
respect to the portion of such temporary Bearer Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment
received by a clearing organization will be credited to the Persons
entitled to interest payable on such date or dates;
(6) the date or dates on which the principal of such Securities
is payable;
(7) the rate or rates at which such Securities shall bear
interest, if any, or the method in which such rate or rates are
determined, the date or dates from which such interest shall accrue, the
dates on which such interest shall be payable and the record date for
Holders entitled to the interest payable on Registered Securities on any
such date, whether and under what circumstances Additional Amounts on
such Securities shall be payable and, if so, whether the Company has the
option to redeem the affected Securities rather than pay such Additional
Amounts, and the basis upon which interest shall be calculated if other
than as otherwise provided in this Indenture;
(8) the place or places, if any, in addition to or other than
The Borough of Manhattan, The City of New York, New York or the City of
Chicago, Illinois where the principal of and interest on or Additional
Amounts, if any, payable in respect of such Securities shall be payable;
(9) the period or periods within which, the price or prices at
which and the terms
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and conditions upon which such Securities may be
redeemed, in whole or in part, at the option of the Company;
(10) the obligation, if any, of the Company to redeem or purchase
such Securities pursuant to a sinking fund, at the option of a Holder
thereof or otherwise and the period or periods within which, the price
or prices at which and the terms and conditions upon which such
Securities shall be redeemed or purchased in whole or in part, pursuant
to such obligation, and any provisions for the remarketing of such
Securities;
(11) the denominations in which Registered Securities of the
series, if any, shall be issuable, and the denominations in which Bearer
Securities of the series, if any, shall be issuable, in either case if
other than as otherwise provided in this Indenture;
(12) if other than the principal amount thereof, the portion of
the principal amount of such Securities which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to
Section 6.02;
(13) if other than such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public
or private debts, the coin or currency, including composite currencies,
in which payment of the principal of or interest, if any, and any
Additional Amounts in respect of such Securities shall be payable and
whether the Securities of the series may be discharged other than as
provided in Article 8;
(14) if the principal of or interest, if any, and any Additional
Amounts in respect of such Securities are to be payable, at the election
of the Company or a Holder thereof, in a coin or currency, including
composite currencies, other than that in which the Securities are stated
to be payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(15) if the amount of payments of principal of or interest, if
any, or any Additional Amounts in respect of such Securities may be
determined with reference to an index, formula or other method based on
a coin or currency other than that in which the Securities are stated to
be payable, the manner in which such amounts shall be determined;
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
(17) any terms which may be related to warrants issued by the
Company in connection with, or for the purchase of, Securities of such
series, including whether and under what circumstances the Securities of
any series may be used toward the exercise price of any such warrants;
(18) the terms and conditions upon which the Securities of the
series will be convertible into shares of common stock or other
securities of the Company, including the conversion price, conversion
period and other conversion provisions.
(19) any other events of default or covenants with respect to
Securities of such series; and
(20) any other terms of such Securities (which terms shall not be
inconsistent with the provisions of this Indenture).
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If the form of the Security of any series is approved by or pursuant to
a Board Resolution of the Company, an Officers' Certificate of the Company
delivered to the Trustee shall state that all conditions precedent relating to
the authentication and delivery of such Security have been complied with and
shall be accompanied by a copy of the Board Resolution of the Company by or
pursuant to which the form of such Security has been approved. The Securities
may have notations, legends or endorsements required by law, stock exchange
rule or usage. Each Security shall be dated the date of its authentication.
Each Security may contain any other terms as are not inconsistent with the
provisions of this Indenture.
All Securities of any one series and coupons appertaining to Bearer
Securities of such series, if any, shall be substantially identical except as to
denomination and the rate or rates of interest, if any, the time or times at
which the principal thereof may be payable, the date from which interest, if
any, shall accrue and except as may otherwise be provided in or pursuant to
such Board Resolution and set forth in the Officers' Certificate hereinabove
described or in any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened for issuances of additional Securities of
such series or to establish additional terms of such series of Securities.
The Securities of each series may be issued as Registered Securities
without coupons or, if provided by the terms of the instrument establishing
such series of Securities, as Bearer Securities, with or without coupons and, in
either case, may be issued initially, temporarily or permanently in global form
(as provided in Section 2.10). Unless the form of a Security for a series
provides otherwise, the Registered Securities shall be issued in
denominations of $1,000 or integral multiples thereof and Bearer Securities
shall be issuable in the denomination of $5,000.
Except as otherwise specified as contemplated by this Section 2.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.02 Execution and Authentication.
Two Officers of the Company shall sign the Securities and the coupons
for the Company by manual or facsimile signature. The Company's seal, if any,
may be reproduced on the Securities, but the Company's seal shall not be
required to be included on the Securities. Coupons shall bear the facsimile
signatures of two Officers of the Company.
If an Officer whose signature is on a Security or coupon no longer holds
that office at the time the Trustee authenticates the Security, the Security
and coupon shall be valid nevertheless.
The aggregate principal amount of Securities Outstanding hereunder at
any time shall be unlimited except that such Outstanding amount (exclusive of
any premium) may not exceed the amount authorized from time to time by the
Board of Directors of the Company and except as provided in Section 2.07.
Upon receipt of a Company Order for the authentication and delivery of
Securities of a series, the Trustee shall authenticate and deliver for original
issue Securities of a series as to which an Officers' Certificate of the
Company or a supplemental indenture has been delivered to the Trustee
pursuant to Section 2.01.
No Security or any coupon appertaining thereto shall be valid until the
Trustee or the authenticating agent referred to below manually signs the
certificate of authentication on the Security. Each Registered Security
shall be dated the date of its authentication. Bearer Securities and any
temporary Bearer Security in global form shall be dated as specified in the
Officers' Certificate of the Company or in the supplements to this Indenture
contemplated by Section 2.01. The signature of the Trustee or the
authenticating agent referred to below shall be conclusive evidence that
the Security has been authenticated under this Indenture.
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The Trustee may appoint an authenticating agent to authenticate
Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an Affiliate thereof.
Except as permitted by Section 2.07, the Trustee shall not authenticate
and deliver any Bearer Security unless all appurtenant coupons for interest
then matured have been detached and cancelled.
The Trustee's authentication shall be in the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
___________________,
as Trustee
By:
Authorized Officer
If the forms and terms of the Securities of the series and any related coupons
have been established in or pursuant to one or more Officers' Certificates as
permitted by Section 2.01 and 2.02, in authenticating such Securities and
accepting the additional responsibilities under this Indenture in relating to
such Securities the Trustee shall be entitled to receive, and (subject to
Section 7.01) shall be fully protected in relying upon an Opinion of Counsel
to the effect that:
(a) the form and terms of such Securities and coupons, if any,
have been duly authorized and established pursuant to Sections 2.01 and
2.02 and comply with this Indenture, and
(b) such Securities, when authenticated and delivered by the
Trustee and issued by the Company, and such coupons, if any, when issued
by the Company, in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to customary exceptions,
provided, however, that, with respect to Securities of a series subject to a
Periodic Offering, the Trustee shall be entitled to receive such Opinion of
Counsel only once at or prior to the time of the first authentication of
Securities of such series and that the Opinion of Counsel above may state:
(x) that the forms of such Securities have been, and the terms
of such Securities (when established in accordance with such procedures
as may be specified from time to time in a Company Order, all as
contemplated by and in accordance with a Board Resolution or any
Officers' Certificate pursuant to Section 2.01, as the case may be) will
have been, duly authorized by the Company and established in conformity
with the provisions of this Indenture; and
(y) that such Securities, together with the coupons, if any,
appertaining thereto, when (1) executed by the Company, (2) completed,
authenticated and delivered by the Trustee in accordance with this
Indenture, and (3) issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms, subject to customary exceptions.
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With respect to Securities of a series subject to a Periodic Offering,
the Trustee may conclusively rely, as to the authorization by the Company of
any of such Securities, the form and terms thereof and the legality, validity,
binding effect and enforceability thereof, upon the Opinion of Counsel and
other documents delivered pursuant to Section 2.01 and this Section, as
applicable, at or prior to the time of the first authentication of Securities
of such series unless and until it has received written notification that
such opinion or other documents have been superseded or revoked. In
connection with the authentication and delivery of Securities of a series
subject to a Periodic Offering, the Trustee shall be entitled to assume that
the Company's instructions to authenticate and deliver such Securities do not
violate any rules, regulations or orders of any governmental agency or
commission having jurisdiction over the Company.
SECTION 2.03 Registrar and Paying Agent.
The Company shall designate a Registrar who shall maintain an office or
agency where Securities may be presented for registration of transfer and where
each series of Registered Securities may be presented for exchange ("Registrar")
and a Paying Agent who shall maintain an office or agency where Securities and
coupons may be presented for payment ("Paying Agent") and an office or agency
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Registrar shall keep a register
("Security Register") of each series of Registered Securities and of their
transfer and exchange. The Company may have one or more co-Registrars and one
or more additional Paying Agents and shall maintain the Registrar or a
co-Registrar and a Paying Agent in each place required by Section 4.02.
The term "Paying Agent" includes any additional paying agent. In the event
that the Trustee shall not be the Registrar, it shall have the right to examine
the Security Register at all reasonable times.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
notify the Trustee of the name and address of any such Agent. If the Company
fails to maintain a Registrar or Paying Agent, or the Company fails to
maintain an agent for service of notices, process and demands, or the Company
fails to give the foregoing notice, the Trustee shall act as such.
The Company initially appoints the Trustee to be the Registrar, Paying
Agent and agent for services of notices and demands.
SECTION 2.04 Paying Agent to Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of Securityholders or
the Trustee all money held by the Paying Agent for the payment of principal of
or any interest or Additional Amounts on the Securities, and shall notify the
Trustee of any default by the Company (or any other obligor on the Securities)
in making any such payment. If the Company or a Subsidiary acts as Paying
Agent, it shall on or before each due date of the principal of or any
interest or Additional Amounts on any Securities segregate the money and
hold it as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and the Trustee may
at any time during the continuance of any payment default, upon written request
to a Paying Agent, require such Paying Agent to pay to the trustee all
sums so held in trust by such Paying Agent. Upon doing so the Paying Agent
shall have no further liability for the money.
SECTION 2.05 Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders of Registered Securities. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee from information in the possession or
control of the Company (a) on or before each interest payment date for any
series of Securities, (b) pursuant to the
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form of Security for each series of non-interest bearing Securities and (c)
at such other times as the Trustee may request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders, provided that if the provisions of (a) or (b)
do not provide for the furnishing of such information at stated intervals of
not more than six months, at least as frequently as semiannually, not later
than May 15 and November 15 of each year.
SECTION 2.06 Transfer, Registration and Exchange.
When a Registered Security is presented at an office or agency
maintained for that series pursuant to Section 4.02 in proper form for
registration of transfer with a request to register a transfer, the Registrar or
co-Registrar at that office shall register the transfer as requested.
At the option of the Securityholder, Registered Securities of any series
may be exchanged upon surrender to the Registrar or a co-Registrar for
Registered Securities of the same series of like aggregate principal amount,
stated maturity and tenor and of other authorized denominations upon surrender
at any office or agency maintained for that series pursuant to Section 4.02.
If so provided with respect to Securities of a series, at the option of
the Holder, Bearer Securities of any such series may be exchanged for Registered
Securities of the same series containing identical terms and provisions,of any
authorized denominations and aggregate principal amount, upon surrender of the
Bearer Securities to be exchanged at any office or agency maintained for that
series pursuant to Section 4.02, with all unmatured coupons and all matured
coupons in default thereto appertaining. If the Holder of a Bearer Security is
unable to produce any such unmatured coupon or coupons or matured coupon or
coupons in default, such exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing coupon or coupons, or the
surrender of such missing coupon or coupons may be waived by the Company and
the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent for that series
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent for that series any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that except as
otherwise provided in Section 4.02, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office
or agency located outside the United States. Notwithstanding the foregoing,
in case a Bearer Security of any series is surrendered at any such office or
agency maintained for that series pursuant to Section 4.02 in exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on any record date for the payment of
interest and any Additional Amounts thereon and before the opening of
business at such office or agency on the relevant payment date therefor, such
Bearer Security shall be surrendered without the coupon relating to such payment
date or proposed date of payment, as the case may be (or if such coupon is so
surrendered with such Bearer Security, such coupon shall be returned to the
person so surrendering the Bearer Security), and interest will not be payable on
such payment date or proposed date for payment, as the case may be, in respect
of the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Every Security presented or surrendered for registration of transfer or
exchange shall (if so required by the Company or the Registrar or co-Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed by the Holder
thereof or his attorney duly authorized in writing. To permit transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's or co-Registrar's request.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 2.01, any global Security shall be exchangeable only
if (i) the Securities Depository is at any time unwilling,
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unable or ineligible to continue as Securities Depository and a successor
Depository is not appointed by the Company within 90 days of the date the
Company is so informed in writing, (ii) the Company executes and
and delivers to the Trustee a Company Order to the effect that such global
Security shall be so exchangeable, or (iii) an Event of Default has occurred
and is continuing with respect to the Securities.If the beneficial owners of
interests in a global Security are entitled to exchange such interests for
Securities of such series and of like tenor and principal amount of any
authorized form and denomination, as specified as contemplated by Section
2.01, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged,
Company shall deliver to the Trustee definitive Securities of that series in
aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or after the earliest date on which
such interests may be so exchanged, such global Securities shall be
surrendered from time to time by the U.S. Depository or such other Depository
as shall be specified in the Company Order with respect thereto, and in
accordance with instructions given to the Trustee and the U.S. Depository or
such Depository, as the case may be, which instructions shall be in writing
but need not be accompanied by an Officers' Certificate of the Company or an
Opinion of Counsel, as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for definitive Securities of the same series
without charge. The Trustee shall authenticate and make available for
delivery, in exchange for each portion of such surrendered global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such global Security to be exchanged which shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof (unless the Securities of the
series are not issuable both as Bearer Securities and as Registered
Securities, in which case the definitive Securities exchanged for the global
Security shall be issuable only in the form in which the Securities are
issuable, as specified as contemplated by Section 2.01); provided, however,
that no such exchanges may occur during a period beginning at the opening
of business 15 days before any selection of Securities of that series to
be redeemed and ending on the relevant Redemption Date; and provided,
further, that (unless otherwise specified as contemplated by Section 2.01)
no Bearer Security delivered in exchange for a portion of a global Security
shall be mailed or otherwise delivered to any location in the
United States. Promptly following any such exchange in part,
such global Security shall be returned by the Trustee to such depository or
the U.S. Depository referred to above in accordance with the instructions of
the Company referred to above. If a Registered Security is issued in
exchange for any portion of a global Security after the close of business at
the office or agency where such exchange occurs on any record date for the
payment of interest or any Additional Amounts thereon, and before the opening
of business at such office or agency on the relevant payment date therefor,
interest and any Additional Amounts in respect of such Registered
Security will not be payable on such payment date, but will be payable
on such payment date only to the Person to whom interest or any
any Additional Amounts in respect of such portion of such global
Security is payable in accordance with the provisions of this Indenture.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 2.09, 3.07 or 9.05
not involving any transfer.
The Company shall not be required (a) to issue, register the transfer
of, or exchange any Securities of any series for a period of 15 days next
preceding the day of any selection of Securities of such series to be redeemed
pursuant to Section 3.03, or (b) to register the transfer of or exchange any
Securities of any series selected, called or being called for redemption
in whole or in part except, in the case of any Registered Security to
be redeemed in part, the portion thereof not so to be redeemed or (c) to
exchange any Bearer Security so selected for redemption except, to the
extent provided with respect to Securities of a series, that such a Bearer
Security may be exchanged for a Registered Security of that series, provided
that such Registered Security shall be immediately surrendered for redemption
with written instruction for payment consistent with the provisions of this
Indenture.
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All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
endorsed thereon surrendered upon such registration of transfer or exchange.
SECTION 2.07 Replacement Securities.
If the Holder of a mutilated or defaced Security or a Security with a
mutilated or defaced coupon appertaining to it surrenders such Security to the
Trustee or if the Holder of a Security presents evidence to the satisfaction
of the Company and the Trustee that the Security has been lost, destroyed or
wrongfully taken or that a coupon has been lost, stolen or wrongfully taken and
surrenders the Security to which such coupon appertains with all appurtenant
coupons not so lost, stolen or wrongfully taken, the Company shall issue and
the Trustee shall authenticate a replacement Security of the same series and
of like tenor, with coupons corresponding to the coupons, if any,appertaining
to the surrendered Security. In case any such mutilated, defaced, lost,
destroyed or wrongfully taken Security or coupon has or is about to become
due and payable, the Company may pay the Security or coupon instead of
issuing a new Security or coupon; provided, however, that payment of
principal of and any interest on and Additional Amounts with respect to
Bearer Securities shall, except as otherwise provided in Section 4.02, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 2.01, any interest on
Bearer Securities shall be payable only upon presentation and surrender of
the coupons appertaining thereto. If required by the Trustee or the Company,
an indemnity bond must be provided which is sufficient in the
judgment of the Company and the Trustee to protect the Company
and the Trustee or any Agent from any loss which any of them may suffer if a
Security is replaced. The Company and the Trustee may charge the Holder for
their fees and expenses in replacing a Security.
Every replacement Security of any series, with its coupons, if any, is
an additional obligation of the Company and shall be entitled to all of the
benefits of this Indenture equally and proportionately with any and all other
Securities of that series and their coupons, if any, duly issued under this
Indenture.
SECTION 2.08 Outstanding Securities.
Securities Outstanding at any time are all Securities authenticated by the
Trustee except for those cancelled by it and those described in this Section.
A Security does not cease to be Outstanding because the Company or one of its
Affiliates holds the Security except as provided in Section 13.06.
If a Security is replaced pursuant to Section 2.07, it ceases to be
Outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds on a Redemption Date or maturity date money
sufficient to pay Securities payable on that date, then on and after that date
such Securities cease to be Outstanding and interest on them ceases to accrue,
provided that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made.
If the Company is deemed to be discharged from its obligations with
respect to the Securities of any series pursuant to Section 8.01 or 8.02, the
Securities of such series shall cease to be Outstanding.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof that
would be due and
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payable as of the date of such determination upon a declaration
of acceleration of the maturity thereof pursuant to Section 6.01, as adjusted
pursuant to Section 13.12 if applicable.
SECTION 2.09 Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities. Temporary
Securities and, if Bearer Securities, temporary coupons shall be
substantially in the form of definitive Securities and, if Bearer
Securities, definitive coupons but may have variations in form that
the Company considers appropriate for temporary Securities.
In the case of Bearer Securities of any series, such temporary Securities
may be in global form representing all of the Outstanding Bearer
Securities of such series. Except in the case of temporary Securities in global
global form (which shall be exchanged in accordance with the provisions
thereof), without unreasonable delay, the Company shall prepare definitive
Securities (accompanied by any unmatured coupons pertaining thereto) of
like tenor as the temporary Securities.
After the preparation of definitive Securities of a series, the
temporary Securities of such series shall be exchangeable upon request for
definitive Securities of such series containing identical terms and provisions
upon surrender of the temporary Securities of such series at an office or agency
of the Company maintained for such purpose pursuant to Section 4.02, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any unmatured coupons
appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations of the same series containing
identical terms and provisions; provided, however, that no definitive Bearer
Security, except as provided pursuant to Section 2.01, shall be delivered in
exchange for a temporary Registered Security; and provided, further, that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth therein. Unless
otherwise specified as contemplated by Section 2.01 with respect to a temporary
global Security, until so exchanged the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
SECTION 2.10 Securities in Global Form.
If Securities of a series are issuable in global form, any such Security
may provide that it shall represent the aggregate amount of Outstanding
Securities from time to time endorsed thereon and may also provide that the
aggregate amount of Outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount,or any increase or decrease in the amount,or changes
in the rights of Holders, of Outstanding Securities represented thereby shall be
made in such manner and by such Person or Persons as shall be specified
therein.
SECTION 2.11 Cancellation.
The Company at any time may deliver Securities or coupons to the Trustee
for cancellation. The Registrar and Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment and all
coupons surrendered for payment. The Trustee shall cancel and destroy all
Securities surrendered for transfer, exchange, payment or cancellation and all
coupons surrendered for payment unless by Company Order the Company directs
their return to the Company. The Company may not issue new Securities to
replace Securities that it has paid or delivered to the Trustee for
cancellation.
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SECTION 2.12 Defaulted Interest.
If the Company defaults in a payment of interest or any Additional Amounts
on any series of Registered Securities, and so long as the Trustee deems the
following procedure practicable, the Company shall pay the defaulted interest
and any Additional Amounts to Persons who are Holders of Registered
Securities of such series on a subsequent special record date in the
following manner. The Company shall fix the special record date
(which shall be between 10 and 30 days before the payment date) for
the payment of such defaulted interest and any Additional Amounts on
such Securities and the payment date for such defaulted interest.
At least 15 days before the special record date, the Company shall
mail each Holder of Registered Securities a notice that states the
special record date, the payment date and the amount of defaulted interest
and any Additional Amounts to be paid, provided the Company has made
arrangements satisfactory to the Trustee for payment of the aggregate
amount to be paid on such payment date. On such payment date the Trustee
shall pay out of funds provided by the Company such defaulted interest
and any Additional Amounts. In case a Bearer Security of
any series is surrendered at the office or agency of the Company maintained
pursuant to Section 4.02 in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such office or
agency on any special record date and before the opening of business at such
office or agency on the related proposed date for payment of defaulted interest
and any Additional Amounts, such Bearer Security shall be surrendered without
the coupon relating to such proposed date of payment and defaulted interest and
any Additional Amounts will not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon on or after such payment
date in accordance with the provisions of this Indenture. The Company may pay
defaulted interest and any Additional Amounts in any other lawful manner.
SECTION 2.13 Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as the
owner of such Registered Security for the purpose of receiving payments of
principal of and (subject to Sections 2.06 and 4.01) interest on and Additional
Amounts with respect to such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security shall 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.
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether
or not such Security or coupon shall 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.
ARTICLE THREE
REDEMPTION
SECTION 3.01 Applicability of Article.
This Article shall apply to the Securities of each series, if any, that by
their terms are subject to redemption at the option of the Company or pursuant
to the operation of a sinking fund or otherwise are required to be redeemed
pursuant to the terms of the Securities. If the terms of any Security shall
conflict with any provision of this Article, the terms of such Security shall
govern.
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SECTION 3.02 Notice to Trustee.
If the Company wants to redeem Securities of any series pursuant to the
terms of the Securities of that series, the Company shall notify the Trustee
of the Redemption Date therefor and the principal amount and other terms and
provisions of the Securities to be redeemed. Each such notice shall be
accompanied by an Officers' Certificate of the Company stating that any
conditions to such redemption as provided in such Security and in this Article
have been complied with. If the Company elects to redeem less than all of the
Securities of a series with the same terms and provisions, the Company shall
notify the Trustee of such Redemption Date and of the principal amount of such
Securities to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities to be
redeemed pursuant to Section 3.03.
If Securities of any series by their terms are redeemable pursuant to
the operation of a sinking fund or pursuant to another mandatory redemption
provision of the Securities, the Company shall notify the Trustee by an
Officers' Certificate of the amount of the next sinking fund payment or
amount required to satisfy such mandatory redemption payment and the
portion of such payment which is to be satisfied by delivering and crediting
Securities of the same series pursuant to Section 3.06.
If the Company wants to reduce pursuant to the terms of such Securities the
principal amount of Securities to be redeemed, it shall notify the Trustee by
Officers' Certificate of the amount of the reduction and the basis for it. If
the Company wants to credit against any such redemption Securities of the same
series it has not previously delivered to the Trustee for cancellation, it
shall deliver the Securities with such Officers' Certificate.
The Company shall give each notice or Officers' Certificate provided for
in this Section at least 30 days before the applicable Redemption Date (unless
shorter notice is satisfactory to the Trustee or a shorter or longer notice is
required by the applicable Security).
SECTION 3.03 Selection of Securities to Be Redeemed.
If less than all the Securities of a series with the same terms and
provisions are to be redeemed, the Trustee shall select the Securities to be
redeemed by a method the Trustee considers fair and appropriate. The Trustee
shall make the selection from such Securities Outstanding not previously called
for redemption. The Trustee may select for redemption portions of the principal
of Registered Securities of such series that have denominations larger than the
minimum authorized denominations for Registered Securities of that series.
Securities and portions thereof the Trustee selects shall be in amounts equal to
the smallest authorized denominations or an integral multiple thereof.
Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Registered Securities called for redemption.
The Trustee shall promptly notify the Company and the Registrar (if
other than itself) in writing of the Securities selected for redemption and,
in the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
SECTION 3.04 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date
(unless a shorter or longer period is specified in the Securities to be
redeemed), the Company shall give notice of such redemption to the Holders
of the Securities to be redeemed as a whole or in part, with respect to
Registered Securities, by mailing a notice of such redemption by first-class
mail to each Holder of
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Registered Securities to be redeemed and, with respect to Bearer
Securities, by publishing in an Authorized Newspaper notice of such
redemption on two separate days.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price, including premium, if any, accrued
interest and Additional Amounts, if any;
(3) if less than all Securities of a series Outstanding are to
be redeemed, the identification (and, if any Security is to be redeemed
in part, the principal amount) of the particular Securities to be
redeemed;
(4) the name or names and address or addresses of the Paying
Agent;
(5) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price, including premium, if
any, accrued interest and Additional Amounts, if any;
(6) that interest on Securities called for redemption ceases to
accrue on and after the Redemption Date; and
(7) that the redemption is pursuant to a sinking fund, if such
is the case.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
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SECTION 3.05 Effect of Notice of Redemption.
Once notice of redemption is given pursuant to Section 3.04, Securities
called for redemption shall become due and payable on the Redemption Date
therefor and at the applicable Redemption Price. Upon surrender to the Paying
Agent for such Securities of such Securities together with all unmatured
coupons, if any, appertaining thereto, such Securities shall be paid at the
applicable Redemption Price, plus accrued interest to the Redemption Date and
any Additional Amounts payable with respect thereto; provided, however,
that any regular payment of interest and any Additional Amounts payable
with respect thereto becoming due on the Redemption Date shall be payable,
in the case of Bearer Securities, to bearers of the coupons for such
interest and Additional Amounts upon surrender thereof and in the case of
Registered Securities to the Holders of such Securities in accordance
with their terms.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender
of each missing coupon or coupons may be waived by the Company and the
Trustee if there shall be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent for such
Security harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent for such Security
any such missing coupon in respect of which a deduction shall have been
made from the Redemption Price, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest (and any Additional
Amounts) represented by coupons shall be payable only upon presentation
and surrender of these coupons at an office or agency located outside of
the United States except as otherwise provided in Section 4.02.
SECTION 3.06 Deposit of Redemption Price or Securities.
On or before the Redemption Date, the Company shall deposit with the
applicable Paying Agent (or if the Company is its own Paying Agent, shall
segregate and hold in trust) money sufficient to pay the Redemption Price of
and accrued interest and Additional Amounts, if any, on all Securities to be
redeemed on that date.
If any Security by its terms permits any sinking fund payment obligation
to be satisfied by delivering and crediting Securities, the Company shall
deliver such Securities to the Trustee for crediting against such payment
obligation in accordance with the terms of such Securities and this Indenture.
SECTION 3.07 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part at any office or
agency maintained by the Company pursuant to Section 4.02, the Trustee shall
authenticate for the Holder a new Security of the same series equal in
principal amount to the unredeemed portion of the Security surrendered.
If a Security in global form is surrendered upon redemption in part, the
Company shall execute, and the Trustee shall authenticate and deliver to the
U.S. Depository or other Depository for such Security in global form as shall
be specified in the Company Order to the Trustee with respect thereto,without
service charge, a new Security in global form in a denomination equal to and
in exchange for the unredeemed portion of the principal of the Security in
global form so surrendered.
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ARTICLE FOUR
COVENANTS
SECTION 4.01 Payment of Securities.
The Company shall pay the principal of and any interest or Additional
Amounts, if any, on the Securities of each series on the dates and in the manner
provided in the Securities, any coupons appertaining thereto and this
Indenture. At the Company's option, it can pay any interest or Additional
Amounts, if any, on Registered Securities of any series by mailing checks or
drafts to the Holders of such Securities at their addresses as shown in the
Security Register. Any interest due on and any Additional Amounts payable
in respect of Bearer Securities on or before their maturity, in respect of
the principal of such a Security shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature.
The Company shall pay interest on overdue principal of any Security at the
rate borne by such Security; it shall pay interest on overdue installments of
interest or Additional Amounts, if any, at the same rate to the extent lawful.
In case a Bearer Security of any series is surrendered in exchange for a
Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any record date
established to determine the Person to whom interest or Additional Amounts
are payable on the next following interest payment date therefor and
before the opening of business (at such office or agency) on such interest
payment date, such Bearer Security shall be surrendered without the coupon
relating to such interest payment date and interest will not be payable on
such interest payment date in respect of the Registered Security issued in
exchange of such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
SECTION 4.02 Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment
is located outside the United States) may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
If Securities of a series are issuable as Bearer Securities, the Company
shall maintain,subject to any laws or regulations applicable thereto,an office
or agency in a Place of Payment for such series which is located outside the
United States where Securities of such series and the related coupons may be
presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of such series); provided, however, that if the
Securities of such series are listed on The International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited or the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent in
London, Luxembourg or any other city so required located outside the United
States, as the case may be, so long as the Securities of such series are listed
on such exchange. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities
of that series and the related coupons may be presented and surrendered
for payment (including payment of any Additional Amounts payable on
Bearer Securities of that series) at the place specified for that
purpose pursuant to
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Section 2.01.
Except as otherwise provided in the form of Bearer Security of any
particular series pursuant to the provisions of this Indenture, no payment of
principal or interest or Additional Amounts on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however,
payment of principal of and interest in U.S. dollars (including
Additional Amounts payable in respect thereof) on any Bearer Security
may be made at the office of the Paying Agent in the Borough of Manhattan,
The City of New York, New York, or in the City of Chicago,
State of Illinois if (but only if) payment of the full amount of such
principal, interest or Additional Amounts at all offices outside the United
States maintained for that purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 4.03 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of the
principal of, or interest or Additional Amounts on, any of the Securities of
that series,segregate and hold in trust for the benefit of the Person entitled
thereto a sum sufficient to pay the principal or interest or Additional Amounts
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it will, on or prior to each due date of the principal of, or
interest or Additional Amounts on, any Securities of that series, deposit with
any Paying Agent a sum sufficient to pay the principal or interest and
Additional Amounts so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, interest or Additional
Amounts, and (unless such Paying Agent is the Trustee) the Company shall
promptly notify the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of
or interest or any Additional Amounts on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any Default by the Company in the
making of any payment of principal or interest or any Additional Amounts
on the Securities of that series; and
(3) at any time during the continuance of any such Default, upon
the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
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The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the same
terms as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Except as otherwise provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the
payment of the principal of or interest or any Additional Amounts on any
Security of any series and remaining unclaimed for one year after such
principal or interest has or Additional Amounts have become due and payable
shall be paid to the Company upon receipt of a Company Order to that effect,
or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once,in an
Authorized Newspaper in each Place of Payment or to be mailed to Holders of
Registered Securities, or both, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing nor shall it be later than one year
after such principal or interest or Additional Amount has become due and
payable, any unclaimed balance of such money then remaining shall be repaid
to the Company.
SECTION 4.04 SEC Reports.
The Company shall file with the Trustee within 15 days after it files
them with the SEC copies of the annual reports and of the information,documents
and other reports (or copies of such portions of any of the foregoing as the
SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended. The Company also shall comply with the
other provisions of TIA Section 314(a).
SECTION 4.05 Statement as to Compliance.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a written statement, which need not comply with
Section 13.05 hereof, signed by an Officer stating, as to the signer thereof,
that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, (a) the
Company has fulfilled its obligations under this Indenture throughout
such year, or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to him and the
nature and status thereof, and (b) no event has occurred and is
continuing which is, or after notice or lapse of time or both would
become, an Event of Default, or, if such an event has occurred and is
continuing, specifying each such event known to him and the nature and
status thereof.
(b) The Company shall deliver to the Trustee, within thirty days after
the Company obtains knowledge of the occurrence thereof, written notice of
any Default.
SECTION 4.06 Limitations on Liens on Stock of Restricted Subsidiaries.
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The Company will not, and will not permit any Restricted Subsidiary to,
issue, assume or guarantee any debt for money borrowed (hereafter in this
Section referred to as "Debt") secured by a mortgage, security interest,
pledge, lien or other encumbrance upon any shares of stock of any
Restricted Subsidiary (whether such shares of stock are now owned or
hereafter acquired) without in any such case effectively providing
concurrently with the issuance, assumption or guarantee of any such Debt
that the Securities (together with, if the Company shall so determine,
any other indebtedness of or guarantee by the Company ranking equally with
the Securities and then existing or thereafter created) shall be
secured equally and ratably with such Debt.
SECTION 4.07 Limitations on Issue or Disposition of Stock of Restricted
Subsidiaries.
The Company will not, and will not permit any Restricted Subsidiary to,
issue, sell, assign, transfer or otherwise dispose of, directly or indirectly,
any of the Capital Stock (other than nonvoting preferred stock) of any
Restricted Subsidiary (except to the Company or to one or more Restricted
Subsidiaries or for the purpose of qualifying directors); provided, however,
that this covenant shall not apply if:
(1) all or any part of such Capital Stock is sold, assigned,
transferred or otherwise disposed of in a transaction for consideration which is
at least equal to the fair value of such Capital Stock, as determined by the
Board of Directors (acting in good faith); or
(2) the issuance, sale, assignment, transfer or other disposition is
required to comply with the order of a court or regulatory authority of
competent jurisdiction, other than an order issued at the request of the
Company or of one of its Restricted Subsidiaries.
SECTION 4.08 Waiver of Certain Covenants.
The Company may omit in any particular instance, to comply with any
covenant or condition set forth in Sections 4.06 or 4.07, if before or after
the time for such compliance the Holders of at least a majority in principal
amount of all Outstanding Securities, and the Holders of at least a majority
in principal amount of the Outstanding Securities of each series to be affected,
shall either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend
to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such covenant
or condition shall remain in full force and effect.
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ARTICLE FIVE
SUCCESSOR CORPORATION AND ASSUMPTION
SECTION 5.01 When Company May Merge, etc.
The Company shall not consolidate with or merge into, or sell, lease or
convey all or substantially all of its assets to, another Corporation unless the
successor or transferee Corporation expressly assumes by supplemental indenture,
in form satisfactory to the Trustee, all the obligations of the Company with
respect to the Securities and this Indenture, and the Company or successor
Corporation, as the case may be, (i) shall be a Corporation organized under the
laws of one of the states in the United States and (ii) shall not, immediately
after such consolidation or merger or sale, lease or conveyance, be in
default in the performance of any covenant or condition with respect to
the Securities or the Indenture. The Company shall deliver to the Trustee
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture comply
with this Indenture. Thereafter all such obligations of the predecessor
corporation shall terminate.
SECTION 5.02 Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease or conveyance of
all or substantially all of the assets of the Company in accordance with Section
5.01, the successor Corporation formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Corporation had been
named as the Company herein.
ARTICLE SIX
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
An "Event of Default" occurs with respect to the Securities of any
series upon:
(a) default in the payment of any installment of interest upon or any
Additional Amounts payable in respect of any of the Securities of such series as
and when the same shall become due and payable, and continuance of such default
for a period of 30 days; or
(b) default in the payment of all or any part of the principal on any of the
Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise (except the
failure to make payment when due and payable if such failure results solely
from nonpayment by reason of mistake, oversight or transfer difficulties and
does not continue beyond 3 Business Days after the day on which such payment
is due and payable); or
(c) default in the payment of any sinking fund installment as and when
the same shall become due and payable by the terms of the Securities of such
series (except the failure to make payment when due and payable if such failure
results solely from nonpayment by reason of mistake, oversight or transfer
difficulties and does not continue beyond 3 Business Days after the day on
which such payment is due and payable); or
(d) default in the performance, or breach, of any covenant or warranty of
the Company in respect of the Securities of such series (other than a covenant
or warranty in respect of the Securities
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of such series a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities (determined pursuant to Section 2.08) of all series affected
thereby, a written notice specifying such default or breach and requiring
it to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) a court having jurisdiction in the premises entering a decree or
order for relief in respect of the Company in an involuntary case under the
Bankruptcy Law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Company or for any substantial part of its property or ordering the winding
up or liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(f) the Company commencing a voluntary case under any applicable
Bankruptcy Law now or hereafter in effect, or consent to the entry of an order
for relief in an involuntary case under any such law, or consent to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Company or for
any substantial part of its property, or making any general assignment for the
benefit of creditors; or
(g) any other Event of Default provided in the supplemental indenture
or Board Resolutions under which such series of Securities is issued or in the
form of Security for such series.
If an Event of Default described in clause (a), (b), (c) or (d) above (if the
Event of Default under clause (d) is with respect to less than all series of
Securities then Outstanding) occurs and is continuing, then, and in each and
every such case, unless the principal of all of the 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 Securities of such
series then Outstanding hereunder (each such series voting as a separate
class) by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series) of all
Securities of such series and the interest accrued thereon and Additional
Amounts payable in respect thereof, if any, to be due and payable
immediately, and upon any such declaration the same shall become
immediately due and payable. If an Event of Default described in Clause
(d) (if the Event of Default under clause (d) is with respect
to all series of Securities then Outstanding), (e) or (f) occurs and is
continuing, then and in each and every such case, unless the principal of
all the Securities shall have already become due and payable, either the
Trustee or the Holders of not less than 25% in aggregate principal amount
of all the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of all the
Securities then Outstanding and interest accrued thereon and Additional Amounts
payable in respect thereof, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable.
The foregoing provisions, however are subject to the condition that if, at
any time after the principal (or, if the Securities are Discount Securities,
such portion of the principal as may be specified in the terms thereof) of the
Securities of any series (or of all the Securities, as the case may be) shall
have been so declared due and payable, and before any judgment or decree for
the payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest upon and any Additional
Amounts payable in respect of all the Securities of such series (or of all the
Securities, as the case may be) and the principal of any and all Securities of
such series (or of all the Securities, as the case may be) which shall have
become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under
applicable law, on
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overdue installments of interest or any Additional Amounts, at the same rate
as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series (or at the
respective rates of interest or Yields to Maturity of all the securities, as the
case may be, to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and
all advances made, by the trustee except as a result of negligence or
bad faith, and if any and all Events of Default under the Indenture,
other than the non-payment of the principal of Securities which shall have
become due by acceleration, shall have been cured, waived or otherwise
remedied as provided herein -- then the Holders of a majority in
aggregate principal amount of all the Securities of such series,
each series voting as a separate class (or of all the Securities, as the case
may be, voting as a single class) then Outstanding, by written notice to the
Company and to the Trustee, may waive all defaults with respect to such
series (or with respect to all the Securities, as the case may be) and
rescind and annul such declaration and its consequences, but no such waiver
or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full or such Original Issue
Discount Securities.
SECTION 6.02 Collection of Indebtedness by Trustee; Trustee May Prove Debt.
The Company covenants that (a) in the case default shall be made in the
payment of any installment of interest on or any Additional Amounts payable in
respect of any of the Securities of any series when such interest or Additional
Amounts shall have continued for a period of 30 days or (b) in case principal
shall have become due and payable, and such default shall be made in the payment
of all or any part of the principal of any of the Securities of any series when
the same shall have become due and payable, whether upon maturity of the
Securities of such series, or upon any redemption or by declaration or
otherwise -- then, upon demand of the Trustee, the Company will pay to the
Trustee for the benefit of the Holders of the Securities of such series the
whole amount that then shall have become due and payable on all Securities
of such series, and such coupons, for principal, interest or Additional
Amounts, if any, as the case may be (with interest to the date of such
payment upon the overdue installments of interest or any Additional Amounts
at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities
of such series); and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection including
reasonable compensation to the Trustee and each predecessor Trustee,
their respective agents, attorneys and counsel, and any expenses and
liabilities incurred, and all advances made, by the Trustee and
predecessor Trustee except as a result of its negligence or bad faith.
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 action or proceeding at law or in
equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceedings to judgment or final decree, and may enforce
any such judgment or final decree against the Company or other obligor upon
such Securities and collect in the manner provided by law out of the
property of the Company or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Company or
any other obligor upon
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the Securities under Bankruptcy Law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Company or its
property or such other obligor, or in case of any other comparable judicial
proceedings relative to the Company or other obligor upon the Securities or
any series, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal, interest (or, if the Securities of any series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) and any Additional Amounts owing and unpaid in respect
of the Securities of any series, and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for reasonable compensation to the Trustee and each
predecessor Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all advances
made, by the Trustee and each predecessor Trustee, except as a result
of negligence or bad faith) and of the Securityholders allowed in any
judicial proceedings relative to the Company or other obligor upon the
Securities of any series, or to the creditors or property of the
Company or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote
on behalf of the Holders of the 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 all amounts received with
respect to the claims of the Securityholders and of the Trustee on their behalf;
and any trustee, receiver, or liquidator, custodian or other similar official is
hereby authorized by each of the Securityholders to make payments to the
Trustee,and in the event that the Trustee shall consent to the making of
payments directly to the Securityholders, to pay to the Trustee such amounts
as shall be sufficient to cover reasonable compensation to the Trustee, each
predecessor trustee and their respective agents, attorneys and counsel, and
all other expenses and liabilities incurred, and all advances made, by the
trustee and each predecessor Trustee except as a result of negligence or bad
faith and all other amounts due to the Trustee or any predecessor Trustee
under this Indenture.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Securityholder in any such proceeding except, as aforesaid, to vote
for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or coupons appertaining to such
Securities, may be enforced by the Trustee without the possession of any of
the Securities of such series or coupons appertaining to such Securities or the
production thereof at any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery or judgment, subject to
the payment of the expenses, disbursements and compensation of the Trustee,
each predecessor Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Holders of the Securities or of coupons
appertaining to such Securities in respect of which action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the
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interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or coupons appertaining to such Securities in respect to which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or coupons appertaining to such Securities parties to any such
proceedings.
SECTION 6.03 Application of Proceeds.
Any moneys collected by the Trustee pursuant to this Article with
respect to the Securities of any series shall be applied in the following order
at the date or dates fixed by the Trustee and, in case of the distribution of
such moneys on account of principal, interest or any Additional Amounts, upon
presentation of the several Securities and coupons appertaining to such
Securities in respect of which monies have been collected and stamping (or
otherwise noting) thereof the payment, or issuing Securities of such series in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid.
FIRST: to the Trustee and any predecessor Trustee for amounts due
under Section 7.07.
SECOND: to the Holders of Securities of such series or coupons
appertaining thereto for amounts due and unpaid on the Securities and
coupons for principal, interest and Additional Amounts,ratably, without
preference or priority of any kind, according to the amounts due and
payable on the Securities and coupons for principal, interest and
Additional Amounts, respectively; and
THIRD: to the Person or Persons lawfully entitled thereto.
SECTION 6.04 Suits for Enforcement.
In case an Event of Default has occurred, has not been waived and is
continuing, the Trustee may in its discretion proceed to protect and enforce
the rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and
enforce any of such rights, either at law or in equity or in bankruptcy
or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
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SECTION 6.05 Restoration of Rights on Abandonments of Proceedings.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discounted or abandoned for any
reason, or shall have been determined adversely to the Trustee, then and
in every such case the Company and the Trustee shall be restored
respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Company, the Trustee and the
Securityholders shall continue as though no such proceedings had been taken.
SECTION 6.06 Limitations on Suits by Securityholders.
No Holder of any Security of any series or of any coupon appertaining
thereto shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than
25% in aggregate principal amount of the Securities of such series then
Outstanding shall have made written request upon the Trustee to institute such
action or proceedings in its own name as Trustee hereunder and shall have
offered to the Trustee 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 failed to institute any such action or
proceeding and no direction inconsistent with such written request shall
have been given to the Trustee, it being understood and intended, and
being expressly covenanted by the taker and Holder of every
Security or coupon with every other taker and Holder and the Trustee, that
no one or more Holders of Securities of any series or coupons appertaining
to such Securities shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other such Holder of Securities or coupons appertaining to such
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series and coupons appertaining to such
Securities. Forthe protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
SECTION 6.07 Unconditional Right of Securityholder to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or coupon to receive
payment of the principal of, interest on and any Additional Amounts in
respect of such Security or coupon on or after the respective due dates
expressed in such Security or coupon, or to institute suit for the
enforcement of any such payment on or after such respective dates, shall not
be impaired or affected without the consent of such Holder.
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SECTION 6.08 Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default.
Except as provided in Section 6.06, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders of Securities or coupons is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or
coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 6.06, every power and remedy
given by this Indenture or by law to the Trustee or to the Holders of
Securities or coupons may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Holders of Securities
or coupons.
SECTION 6.09 Control by Holders of Securities.
The Holders of a majority in aggregate principal amount of the
Securities of each series affected (with each series voting as a separate class)
at the time Outstanding shall have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee with respect to the
Securities of such series by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section
6.01) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, shall determine that
the action or proceeding so directed may not lawfully be taken or if the
Trustee in good faith by its board of directors, the executive committee,
or a trust committee of two or more directors or responsible officers of
the Trustee, which may include Trust Officers, shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the
actions or forebearances specified in or pursuant to such direction
would be unduly prejudicial to the interests of Holders of the
Securities of all series so affected not joining in the giving of
said direction, it being understood that the Trustee shall have no duty
to ascertain whether or not such actions or forebearances are unduly
prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction or directions by Securityholders.
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SECTION 6.10 Waiver of Past Defaults.
Prior to the declaration of the acceleration of the maturity of the
Securities of any series as provided in Section 6.01, the Holders of a majority
in aggregate principal amount of the Securities of such series at the time
Outstanding may on behalf of the Holders of all the securities of such series
waive any past default or Event of Default described in clause (c) of Section
6.01 (or, in the case of an event specified in clause (d) of Section 6.01 which
relates to less than all series of Securities then Outstanding, the Holders of a
majority in aggregate principal amount of the Securities then Outstanding
affected thereby (each series voting as a separate class) may waive any such
default or Event of Default, or, in the case of an event specified in clause
(d) (if the Event of Default under clause (d) relates to all series of
Securities then Outstanding),(e) or (f)of Section 6.01 the Holders of
Securities of a majority in principal amount of all the Securities then
Outstanding (voting as one class) may waive any such default or Event of
Default), and its consequences except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent
of the Holder of each Security affected. In the case of any such waiver,
the Company, the Trustee and the Holders of the Securities of such series
shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 6.11 Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances.
The Trustee shall, within ninety days after the occurrence of a default
with respect to the Securities of any series, give notice of all defaults with
respect to that series known to the Trustee (i) if any Bearer Securities of that
series are then Outstanding, to the Holders thereof, by publication at least
once in an Authorized Newspaper in the Place of Payment, (ii) if any
Bearer Securities of that series are then Outstanding, to all Holders
thereof who have filed their names and addresses with the Trustee, by
mailing such notice to such Holders at such addresses and (iii) to all
Holders of then Outstanding Registered Securities of that series, by
mailing such notice to such Holders at their addresses as they
shall appear in the registry books, unless in each case such defaults
shall have been cured before the mailing or publication of such notice
(the term "defaults") for the purpose of this Section being hereby defined
to mean any event or condition which is, or with notice or lapse of time
or both would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest or
Additional Amounts, if any, on any of the Securities of such series or
in the payment of any sinking or purchase fund installment, the Trustee
shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committe
comprised of two or more directors or trustees and/or responsible officers
of the Trustee, which may include Trust Officers, in good faith determines
that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 6.12 Right of Court to Require Filing of Undertaking to Pay Costs.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit (other than the Trustee) of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit
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instituted by any Securityholder or group of Securityholders of any series
holding in the aggregate more than 10% in aggregate principal amount of the
Outstanding Securities of such series, or, in the case of any suit relating
to or arising under clause (d) of Section 6.01 (if the suit relates to
Securities of more than one but less than all series), 10% in aggregate
principal amount of Securities Outstanding affected thereby, or in the
case of any suit relating to or arising under clause (d) (if the suit under
clause (d) relates to all the Securities then Outstanding), (e) or (f) of
Section 6.01, 10% in aggregate principal amount of all Securities Outstanding,
or to any suit instituted by any Securityholder for the enforcement of the
payment of the principal of or interest on any Security on or after the due
date expressed in such Security or any date fixed for redemption.
The Holders of a majority in principal amount of the Outstanding
Securities of such series by notice to the Company and the Trustee may
rescind an acceleration and its consequences if (i) all existing Events of
Default with respect to the Securities of such series, other than the
non-payment of the principal of the Securities which have become due
solely by such declaration of acceleration, have been cured or waived,
(ii) the Company has paid or deposited with the Trustee a sum sufficient
to pay the whole amount then due and payable on such Securities and any
coupons appertaining thereto for principal and interest
and Additional Amounts, if any, with interest upon the overdue principal
and, to the extent that payment of such interest shall be legally
enforceable, upon overdue installments of interest or any Additional
Amounts, at the rate or rates borne by or provided for in such Securities,
and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and (iii) the rescission would not conflict with any
judgment or decree. No such rescission shall have any effect on
any subsequent default or impair any right consequent thereon.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise its rights and powers hereunder and use the same degree of care
and skill in its exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. The Trustee, however, shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a responsible officer or officers of the Trustee,
which may include Trust Officers, unless it is
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proved that the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.09.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated except to the extent required by law. The Trustee shall not be
liable for interest on any money received by it except as the Trustee
may agree with the Company.
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SECTION 7.02 Rights of Trustee.
Except as provided in Section 7.01:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person or Persons. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate of the Company or an Opinion of Counsel. The Trustee
shall not be liable for any action it takes or omits to take in good faith
and in reliance on such Officers' Certificate or Certificates or Opinion of
Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
(e) Any demand, request, direction or notice from the Company
mentioned herein shall, unless otherwise specifically provided, be sufficiently
evidenced by a demand, request, direction or notice signed by an Officer of the
Company.
SECTION 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities or coupons and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. The Trustee, however, must comply with
Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities; it shall not be accountable for the Company's
use of the Securities or the proceeds from the Securities; and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.
SECTION 7.05 Notice of Defaults.
If a Default occurs and is continuing with respect to Securities and if
it is known to the Trustee, the Trustee shall give to each Holder of Securities
of any series to which such Default relates, in the manner and to the extent
provided in TIA Section 313(c), and otherwise as provided in Section 13.02 of
this Indenture, notice of the Default within 90 days after it occurs. Except
in the case of a Default in payment of principal of or interest or Additional
Amounts, if any, on a Security of any series, or in the payment of any
sinking or purchase fund installment, the Trustee may withhold the notice if
and so long as the board of directors of the Trustee, the executive committee
or a trust committee of directors and/or of responsible officers, which may
include Trust Officers, of the Trustee in good faith determines that
withholding the notice is in the interests of Holders of Securities of such
series or the coupon appertaining thereto.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each Securityholder a brief
report dated as of such May 15 that
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complies with TIA Section 313(a). The Trustee also shall comply with
TIA Section 313(b)(2). Reports to Holders pursuant to this Section 7.06 shall
be transmitted in the manner and to the extent provided in TIA Section 313(c).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange on which any Securities
are listed.
The Company agrees to notify the Trustee whenever the Securities of any
series become listed on any stock exchange.
SECTION 7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time reasonable
compensation for its services (which compensation shall not be limited by any
provision of law in regard to the compensation of a Trustee of an express
trust). The Company shall reimburse the Trustee and any predecessor
Trustee upon request for all reasonable out-of-pocket expenses and advances
incurred or made by it. Such expenses shall include the reasonable
compensation and expenses of the Trustee's agents and counsel. The Company
shall indemnify each of the Trustee and any predecessor Trustee against any
loss or liability (including legal fees and expenses) incurred by it in
connection with the acceptance and administration of the trust and the
performance of its duties hereunder, including the costs and
expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The Trustee shall notify the Company promptly of any claim
asserted against it for which it may seek indemnity; provided, however,
that the failure to give the Company any notice of any claim shall not
in any way affect the rights of the Trustee hereunder to indemnification
for such claim. The Company need not reimburse any expense or indemnify
against any loss or liability incurred by the Trustee or any predecessor
Trustee to the extent due to its own negligence, willful misconduct or
bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a lien prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay principal of or
interest or Additional Amounts, if any, on the Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01 (e) and (f) occurs, the expenses and the
compensation for services are intended to constitute expenses of administration
under any Bankruptcy Law. The term "Bankruptcy Law" means Title 11, U.S. Code.
SECTION 7.08 Replacement of Trustee.
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Outstanding Securities may remove the
Trustee by so notifying the removed Trustee and may appoint a successor
Trustee with respect to the Securities. The Company may remove the Trustee
with respect to all Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall, upon payment of its charges, transfer all property
held by it as Trustee to the successor Trustee, the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee
shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall give notice of its succession to each
Holder of Securities.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in principal amount of the Outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be
the successor Trustee.
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SECTION 7.10 Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the requirements
of TIA Section 310(a)(1). The Trustee shall have a combined capital and
surplus of at least $5,000,000 as set forth in its most recent published
annual report of condition. If any series of Securities is admitted to
trading on the New York Stock Exchange, Inc., or any successor thereto, the
Trustee shall maintain an office or agency in The Borough of Manhattan, The City
of New York, New York as long as such series of Securities shall be so admitted.
The Trustee shall comply with TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01 Termination of the Company's Obligations.
The Company may terminate all of its obligations under the Securities of
any series and this Indenture with respect to such series if all Securities of
such series previously authenticated and delivered (other than destroyed,
lost or stolen Securities of such series which have been replaced or paid)
and all coupons appertaining thereto (other than (i) coupons appertaining to
Bearer Securities surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been
waived as provided in Section 2.06, (ii) Securities and coupons which
have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.07, and (iii) Securities and coupons for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 4.03 or 8.04) have
been delivered to the Trustee for cancellation or if:
(1) the Securities of such series mature within one year or all
of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption;
(2) the Company irrevocably deposits in trust with the Trustee
money or Government Obligations sufficient to pay principal of and any
interest and Additional Amounts on the Securities of such series to
maturity or redemption, as the case may be (other than moneys paid to
the Company or discharged from trust in accordance with Section 4.03 or
8.04); and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
The Company's obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
7.07, 7.08, and 8.03 with respect to the Securities of such series, however,
shall survive so long as any principal of, interest, if any, or any Additional
Amounts on the Securities of such series, and coupons appertaining thereto,
remains unpaid. Thereafter the Company's obligations in Section 7.07 shall
survive.
After a deposit of such moneys, and delivery of the Officers'
Certificate and Opinion of Counsel
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required by clause (3) above, the Trustee upon request shall acknowledge in
writing the discharge of the Company's obligations under the Securities of
such series and this Indenture with respect to the Securities of such series
except for those surviving obligations specified above.
SECTION 8.02 Termination of the Company's Obligations under Certain
Circumstances.
Unless otherwise provided in a Board Resolution of the Company delivered
to the Trustee pursuant to Section 2.01 or an indenture supplemental hereto
with respect to the Securities of any series, the Company, at its option,
either (a) shall be deemed to have been Discharged (as defined below)
from its obligations with respect to the Securities of any series, and
coupons appertaining thereto, on the ninety-first day after the applicable
conditions set forth below have been satisfied or (b) shall cease to be
under any obligation to comply with any term, provision or condition set
forth in Sections 4.04, 4.05, 4.06 and 4.07 and Sections 6.01 and 6.02 as
they relate to Section 6.01(d), with respect to the Securities of any series
and any coupons appertaining thereto and any other covenants provided
in the Board Resolution of the Company (except Section 7.07) delivered
to the Trustee pursuant to Section 2.01 or an indenture supplemental
hereto with respect to the Securities of such series and any coupons
appertaining thereto at any time after the applicable conditions set
forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series and any coupons appertaining
thereto (A) money 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, not later than one day (or, if
such day is a Legal Holiday, the first day preceding such day which is
not a Legal Holiday) before the due date of any payment, money in an
amount, or (C) a combination of (A) and (B), sufficient, in the opinion
of a recognized firm of Independent Public Accountants selected by the
Company expressed in a written certification thereof delivered to the
Trustee, to pay and discharge each installment of principal (including
mandatory sinking fund payments) of, and interest, if any, and
Additional Amounts, if any, on the Outstanding Securities of such series
on the dates such installments of principal, interest, if any, and
Additional Amounts, if any, are due (taking into account any redemption
pursuant to optional sinking fund payments notice of which redemption is
provided to the Trustee at the time of the deposit referred to in this
paragraph (1));
(2) if the Securities of such series are then listed on the New
York Stock Exchange, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Company's exercise of its
option under this paragraph would not cause such Securities to be
delisted;
(3) no Event of Default, or event which with the giving of
notice or lapse of time, or both, would become an Event of Default, with
respect to the Securities of such series shall have occurred and be
continuing on the date of such deposit and the Company shall have
furnished to the Trustee an Officers' Certificate to such effect; and
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for United States Federal income
tax purposes as a result of the exercise of the option under this
Section 8.02 and will be subject to United States Federal income tax on
the same amount and in the same manner and at the same times as would
have been the case if such option had not been exercised, and, in the
case of Securities being Discharged, such opinion shall be accompanied
by a private letter ruling to that effect received from the United
States Internal Revenue Service or a revenue ruling pertaining to a
comparable form of transaction to that effect published by the United
States Internal Revenue Service.
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"Discharged" means, for purposes of this Section 8.02, that the Company
shall be deemed to have paid and discharged the entire indebtedness represented
by, and obligations under, the Securities of any series and to have satisfied
all the obligations under this Indenture relating to the Securities of such
series (and the Trustee, at the expense of the Company, shall execute
such instruments as may be requested by the Company acknowledging the same),
except (A) the rights of Holders of Securities of such series or the coupons,
if any, appertaining thereto, as the case may be, to receive, solely
from the trust fund described above, payment of the principal of and
interest, if any, and Additional Amounts, if any, on such Securities
when such payments are due; (B) the Company's obligations with respect
to such Securities under Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07,
7.08 and 8.03; and (C) the rights, powers, duties and immunities of the
Trustee hereunder. Notwithstanding the satisfaction and discharge of
this Indenture with respect to any series of Securities, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 7.07 shall survive.
SECTION 8.03 Application of Trust Money.
All moneys and Government Obligations deposited with the Trustee
pursuant to Sections 8.01 and 8.02 and, with respect to Government Obligations,
the principal and interest in respect thereof, with respect to Securities of any
series shall be held irrevocably in trust and applied by it to the payment in
accordance with the provisions of the Securities of such series and this
Indenture, either directly or through any Paying Agent for the Securities
of that series (including the Company if acting as its own Paying Agent),
to the Holders of the Securities of such series or the coupons, if any,
appertaining thereto, as the case may be, for the payment or redemption
of which such money has been deposited with the Trustee, of all sums due
and to become due thereon for principal, interest, if any, and Additional
Amounts, if any, but such money need not be segregated from other funds
except to the extent required by law.
SECTION 8.04 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company upon
request any excess money or securities held by them at any time under this
Article Eight. Any money deposited with the Trustee or any Paying Agent,
or then held by the Company, under this Article Eight in trust for the
payment of the principal of, interest or Additional Amounts, if any, on
any Security and remaining unclaimed for two years after such principal,
interest or Additional Amounts have become due and payable shall be paid to
the Company on request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof,
shall thereupon cease.
SECTION 8.05 Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against deposited Government
Obligations or the principal and interest received on such Government
Obligations.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Securityholder:
(a) to convey, transfer, assign, mortgage or pledge to the
trustee as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the
Company, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Company pursuant
to Article Five;
(c) to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions as its Board of Directors and
the Trustee shall consider to be for the protection of the Holders of Securities
or coupons appertaining thereto, and to make the occurrence, or the occurrence
and continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of
all or any of the several remedies provided in this Indenture as herein
set forth; provided, that in respect of any such additional covenant,
restriction, condition or provision 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 immediate enforcement upon such an Event of Default or
may limit the remedies available to the Trustee upon such an Event of
Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event of
Default.
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions as the Board of
Directors may deem necessary or desirable, provided that no such action
shall adversely affect the interests of the Holders of the Securities or
coupons appertaining thereto;
(e) to establish the form or terms of Securities of any series
or of the coupons appertaining to such Securities as permitted by Section 2.01;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series;
(g) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions (including restrictions relating to payment in
the United States) on the payment of principal of any premium or interest
on Bearer Securities, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to
permit the issuance of Securities in uncertificated form, provided that
any such actions shall not adversely affect the interest of the Holders of
the Securities of any series or any related coupons in any material respect;
or
(h) to add to, change or eliminate any of the provisions of this
Indenture (which addition, change or elimination may apply to one or more series
of Securities), provided that any such addition, change or elimination shall
neither (A) apply to any Security or any series created prior to the
execution of such supplemental indenture and entitled to the benefit of such
provision nor (B) modify
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the rights of the Holder of any such Security with respect to such provision.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02 With Consent of Holders.
With the consent of the Holders of not less than a majority of the
principal amount of the Securities at the time Outstanding in each series
affected by such supplemental indenture (voting as one class), the Company,
when authorized by a resolution of its Board of Directors, and the Trustee
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 any
supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series or of the coupons appertaining
to such Securities; provided, that no such supplemental indenture shall,
without the consent of each Securityholder affected:
(1) reduce the amount of Securities whose Holders must consent
to an amendment, supplement or waiver or reduce the requirements of
Section 11.09 establishing a quorum or voting or amend this
Section 9.02;
(2) reduce the rate or rates of or extend the time for payment
of interest or Additional Amounts, if any, on any Security;
(3) reduce the principal of or extend the fixed maturity of any
Security;
(4) modify or effect in any manner adverse to the Holders of
Securities the terms and conditions of the obligations of the Company in
respect of its obligations hereunder;
(5) waive a default in the payment of the principal of or
interest or Additional Amounts, if any, on any Security;
(6) impair the right to institute suit for the enforcement of
any payment on or with respect to any series of Securities;
(7) change a Place of Payment; or
(8) make any Security payable in currency other than that stated
in the Security.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of Holders of Securities of such series, or of coupons appertaining to
such Securities, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities
of any other series or of the coupons appertaining to Securities of such
other series.
It shall not be necessary for the consent of the Securityholders under
this Section to approve
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the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall give a notice thereof (i) to the Holders of then Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on
the Security Register, (ii) if any Bearer Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their
names and addresses with the Trustee, by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so furnished
to the Trustee and (iii) if any Bearer Securities of a series affected
thereby are then Outstanding, to all Holders thereof, by publication
of a notice thereof at least once in an Authorized Newspaper in the Place
of Payment, and in each case such notice shall set forth in general
terms the substance of such supplemental indenture. Any failure the
Trustee to give such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 9.03 Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
A consent to an amendment, supplement or waiver to any other action
hereunder by a Holder of a Security of any series shall bind the Holder and
every subsequent Holder of a Security or portion of a Security of that series
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. Any such Holder or
subsequent Holder, however, may revoke the consent as to his Security or
portion of a Security. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver or other action becomes effective.
After an amendment, supplement or waiver with respect to a series of
Securities becomes effective, it shall bind every Holder of Securities of that
series.
SECTION 9.05 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may request the Holder of the Security to deliver it to the Trustee.
The Trustee may then place an appropriate notation on the Security about the
changed terms and return it to the Holder. Alternatively, if the Company so
determines, the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security that reflects the changed terms.
SECTION 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized pursuant
to this Article if the amendment or supplement does not adversely affect the
rights, duties, liabilities (present or potential), or immunities of the
Trustee. If it does, the Trustee may but need not sign it. In signing such
amendment or supplement, the Trustee shall be entitled to receive and
(subject to Sections 7.01 and 7.02) shall be fully protected in relying upon
an Opinion of Counsel stating that such amendment or supplement is
authorized or permitted by this Indenture.
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ARTICLE TEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 10.01 Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require
repayment of Securities before their maturity shall not operate as a payment,
redemption or satisfaction of the indebtedness represented by such
Securities unless and until the Company, at its option, shall deliver or
surrender the same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in
this Article Ten, in connection with any repayment of Securities,
the Company may arrange for the purchase of any Securities by an
agreement with one or more investment bankers or other purchasers to purchase
such Securities by paying to the Holders of such Securities on or before the
close of business on the repayment date an amount not less than the repayment
price payable by the Company on repayment of such Securities, and the
obligation of the Company to pay the repayment price of such Securities
shall be satisfied and discharged to the extent such payment is so paid by
such purchasers.
ARTICLE ELEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 11.01 Evidence of Action Taken by Securityholders.
Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in
person or by agent duly appointed in writing. If Securities of a series
are issuable as Bearer Securities, any request, demand, authorization,
direction, notice,consent, waiver or other action provided by this Indenture
to be given or taken by Holders of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of
such series voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of
Sections 11.06 through 11.11, or a combination of such instruments
such record. Except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments or
record or both are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments and
any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments and so voting at any such meeting.
Proof of execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a Security, be
sufficient for any purpose of this Indenture and (subject to Section 7.02)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in Section 11.02. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 11.11.
SECTION 11.02 Proof of Execution of Instruments and of Holding of Securities.
The execution of any instrument by a Securityholder or his agent or
proxy may be proved in the following manner:
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(a) The fact and date of the execution by any Holder of any instrument
may be proved by the certificate of any notary public or other officer
of any jurisdiction authorized to take acknowledgements of deeds or administer
oaths that the person executing such instruments acknowledged to him the
execution thereof, or by an affidavit of a witness to such execution sworn to
before any such notary or other such officer. Where such execution is by or
on behalf of any legal entity other than an individual, such certificate or
affidavit shall also constitute sufficient proof of the authority of the
person executing the same. The fact of the holding by any Holder of a
Bearer Security of any series, and the identifying number of such
Security and the date of his holding the same, may be proved by the
production of such Security or by a certificate executed by any trust
company, bank, banker or recognized securities dealer wherever situated
satisfactory to the Trustee, if such certificate shall be deemed by the
Trustee to be satisfactory. Each such certificate shall be dated
and shall state that on the date thereof a Security of such series bearing
a specified identifying number was deposited with or exhibited to such trust
company, bank, banker or recognized securities dealer by the person named in
such certificate. Any such certificate may be issued in respect of one or
more Bearer Securities of one or more series specified therein. The holding
by the person named in any such certificate of any Bearer Security or
Securities of any series specified therein shall be presumed to continue
for a period of one year from the date of such certificate unless at
the time of any determination of such holding (1) another certificate
bearing a later date issued in respect of the same Security or Securities
shall be produced, or (2) the Security or Securities of such series
specified in such certificate shall be produced by some other person,
or (3) the Security or Securities of such series specified in such
certificate shall have ceased to be Outstanding. Subject to Section 7.02,
the fact and date of the execution of any such instrument and the amount
and numbers of Securities of any series held by the person so executing
such instrument and the amount and numbers of any Security or
Securities for such series may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee
for such series or in any other manner which the Trustee for such series
may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security Register or by a certificate of
the Security Registrar.
(c) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by
the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
(d) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to an Officers' Certificate delivered
to the Trustee, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do
so. If such a record date is fixed, such request, demand, authorization,
direction, notice,consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite percentage of Outstanding Securities or
Outstanding Securities of a series, as the case may be, have authorized or
agreed or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the Outstanding
Securities or Outstanding Securities of the series, as the case may be,
shall be computed as of such record date.
SECTION 11.03 Holders to be Treated as Owners.
The Company, the Trustee and any agent of the Company or the Trustee may
deem and treat the person in whose name any Security shall be registered upon
the Security Register for such series as the absolute owner of such Security
(whether or not such Security shall be overdue and
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notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, interest on and any Additional Amounts
payable in respect of such Security and for all other purposes; and neither the
Company nor the Trustee nor any agent of the Company or the Trustee shall be
affected by any notice to the contrary. The Company, the Trustee and any agent
of the Company or the Trustee may treat the Holder of any Bearer Security and
the Holder of any coupon as the absolute owner of such Bearer Security or
coupon (whether or not such Bearer Security or coupon shall be overdue) for
the purpose of receiving payment thereof or on account thereof and for
all other purposes and neither the Company, the Trustee, nor any agent of
the Company or the Trustee shall be affected by any notice to the contrary.
All such payments so made to any such person, or upon his order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy
and discharge the liability for moneys payable upon any such Security or
coupon.
None of the Company, the Trustee or any paying agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
SECTION 11.04 Securities Owned by Company Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have concurred in any
direction, consent or waiver under this Indenture, Securities which are owned by
the Company or any other obligor on the Securities with respect to which such
determination is being made or by any Affiliate of the Company or any such
obligor shall be disregarded and deemed not to be Outstanding for the purpose of
any such determination, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, consent or waiver
only Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate
of the Company or any other obligor on the Securities. In case of a dispute
as to such right, the advice of counsel shall be full protection in respect
of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee, the Company shall furnish to the Trustee promptly an
Officers' Certificate listing and identifying all 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 Section 7.02, 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
Securities not listed therein are Outstanding for the purpose of an
such determination.
SECTION 11.05 Right of Revocation of Action Taken.
At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 11.01, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series,
as the case may be, specified in this Indenture in connection with such action,
any Holder of a Security the serial number of which is shown by the evidence to
be included among the serial numbers of the Securities the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by
the Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities issued
in exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon any
such Security. Any action taken by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action shall be conclusively
binding upon the Company, the Trustee and the
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Holders of all the Securities affected by such action.
SECTION 11.06 Meetings of Holders.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Section 11.06 to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 11.07 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 11.06, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York,the City of Chicago, Illinois or in London as the Trustee shall
determine or,with the approval of the Company, at any other place. Notice of
every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section
13.02 not less than 21 nor more than 180 days prior to the date fixed
for the meeting.
(b) In case at any time the Company or the Holders of at least 10% in
principal amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of
such series for any purpose specified in Section 11.06, by written request
setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of
the notice of such meeting within 21 days after receipt of such request
or shall not thereafter proceed to cause the meeting to be held as
provided herein, the Company or the Holders of Securities of such series
in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York, the
City of Chicago, Illinois or in London, or in such other place as shall be
determined and approved by the Company, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in Subsection
(a) of this Section.
SECTION 11.08 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of any series, a Person
shall be (1) a Holder of one or more Outstanding Securities of such series, or
(2) a Person appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at
any meeting of Holders of Securities or any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of
the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 11.09 Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period determined by the
chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for a period determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting. Notice of
the reconvening of any adjourned meeting shall be given as provided in
Section 11.07(a), except that any such notice by publication need be given
only once not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage,
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as provided above, of the principal amount of the Outstanding Securities of
such series which shall constitute a quorum.
Any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be adopted by the
affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; provided, however, that any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than
a majority, in principal amount of the Outstanding Securities of a series may
be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 11.10 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) 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 Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holdings of Securities shall be proved in the manner
specified in Section 11.02 and the appointment of any proxy shall be provided
in the manner specified in Section 11.02 or by having the signature of the
person executing the proxy witnessed or guaranteed by any trust company,
bank or banker authorized by Section 11.02 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face,may be presumed valid and
genuine without the proof specified in Section 11.02 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 11.07(b), in
which case the Company or the Holders of Securities of the series calling the
meeting,as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each $1,000 principal amount of the Outstanding
Securities of such series held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect to any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of Securities of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 11.07 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 11.11 Counting Votes and Recording Action of Meetings.
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The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed signatures of the Holders of Securities of such series or their
representatives by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record,
at least in duplicate, of the proceedings of each meeting of
Holders of Securities of any series shall be prepared by the secretary
of the meeting and there shall be attached to said record the original 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 given as provided
in Section 11.07 and, if applicable, Section 11.09. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary
of the meeting and one such copy shall be delivered to the Company, and
another to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required by any form of Security of such series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is referred to in this Article Twelve as a
"mandatory sinking fund payment," and any payment in excess of such minimum
amount provided for by the terms of Securities of such series is herein
referred to as an "optional sinking fund payment." If provided for by the
terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.02. Each
sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series to be made pursuant to the
terms of such Securities as provided for by the terms of such series (1) deliver
Outstanding Securities of such series (other than any of such Securities
previously called for redemption or any of such Securities in respect of which
cash shall have been released to the Company), together in the case of any
Bearer Securities of such series with all unmatured coupons appertaining
thereto, and (2) apply as a credit Securities of such series which have been
redeemed either at the election of the Company pursuant to the terms of such
series of Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities, provided that such
series of Securities have not been previously so credited. Such Securities
shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly. If as a result of the delivery or credit of
Securities of any series in lieu of cash payments pursuant to this Section
12.02, the principal amount of Securities of such series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than
$100,000, the Trustee need not call Securities of such series for redemption,
except upon Company request, and such
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cash payment shall be held by the Trustee or a Paying Agent for Securities of
that series and applied to the next succeeding sinking fund payment, provided,
however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment
so being held by the Trustee or such Paying Agent upon delivery by the Company
to the Trustee of Securities purchased by the Company having an unpaid
principal amount equal to the cash payment requested to be released to the
Company.
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SECTION 12.03 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 12.02, and the optional amount,
if any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 3.03 and cause notice of the
redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 3.04. Such notice having been
duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 3.05 and 3.06.
ARTICLE THIRTEEN
Miscellaneous
SECTION 13.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
the duties which are required to be included in this Indenture by the TIA
Section 310 to 317, inclusive, such duties set forth in the TIA shall control.
SECTION 13.02 Notices.
Except as otherwise expressly provided herein or in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, any notice or communication shall be sufficiently given if in
writing and delivered in Person or mailed by first-class mail addressed as
follows:
if to the Company:
Lincoln National Corporation
200 East Berry Street
Fort Wayne, Indiana 46802-2706
Attention: Treasurer
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with a copy to:
Gardner, Carton & Douglas
321 North Clark Street
Suite 3400
Chicago, IL 60610
Attention: Arthur J. Simon
if to the Trustee:
[To Be Provided By Trustee]
The Company or the Trustee by notice to the others may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder of a Registered Security
shall be mailed to him by first class mail at his address as it appears on the
Security Register and shall be sufficiently given to him if so mailed within
the time prescribed.
Failure to mail a notice or communication to a Holder of any Registered
Security or any defect in it shall not affect its sufficiency with respect to
other Securityholders. If a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
In case, by reason of the suspension of regular mail service or by reason
of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
Any notice required or permitted to be given to a Holder of Bearer
Securities of any series shall be deemed to be properly given if such notice
is published in an Authorized Newspaper on two separate days within the time
prescribed.
In case, by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause, it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither failure to give
notice by publication to Holders of Bearer Securities as provided above, nor
any defect in any notice so published, shall affect the sufficiency of
any notice mailed to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived, in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Any request, demand, authorization, direction, notice, consent, election
or waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be
in an official language of the country of publication.
SECTION 13.03 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar
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and anyone else shall have the protection of TIA Section 312(c).
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture (except that, in the case of any request or
application as to which the furnishing of such documents is specifically
required by any provision of this Indenture relating to such particular
request or application, no additional certificate or opinion need be
furnished), the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
ECTION 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion 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 and the definitions relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of 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 13.06 When Treasury Securities Disregarded.
In determining whether the Holders of the required principal amount of
Securities or a series thereof have concurred in any direction, waiver or
consent, Securities owned by the Company or any other obligor upon the
Securities or by any Affiliate of the Company or such obligor shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith shall not be
disregarded if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to the Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such obligor.
SECTION 13.07 Legal Holidays.
A "Legal Holiday", except as otherwise provided in the form of Security
of any particular series pursuant to the provisions of this Indenture, with
respect to any Place of Payment means a Saturday, a Sunday or a day on which
banking institutions or trust companies in that Place of Payment are not
required to be open. Except as provided otherwise in the applicable Security,
if a payment date with respect to such payment is a Legal Holiday at any
Place of Payment, payment due on such Security
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with respect to such Security may be made at such place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue with respect
to such payment for the intervening period.
SECTION 13.08 Governing Law.
The laws of the State of New York applicable to contracts made and
performed in said state shall govern this Indenture and the Securities and
coupons. Unless the form of Security provides otherwise, all money or dollar
amounts expressed herein or in the Securities refer to United States dollars.
SECTION 13.09 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 13.10 Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successor and assigns, whether so expressed or not. All agreements
of the Trustee in this Indenture shall bind its successor.
SECTION 13.11 Duplicate Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 13.12 Securities in Foreign Currencies.
Wherever this Indenture provides for any action by, or the determination
of any of the rights of, Holders of Securities of any series in which not all of
such Securities are denominated in the same currency, or any distribution to
Holders of Securities, in the absence of any provision to the contrary in the
form of Security of any particular series, any amount in respect of any Security
denominated in a currency other than United States dollars shall be treated for
any such action, determination or distribution as that amount of United States
dollars that could be obtained for such amount on such reasonable basis of
exchange and as of such date as the Company may specify in a written notice to
the Trustee, or in the absence of such notice, as the Trustee may determine.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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SIGNATURES
LINCOLN NATIONAL CORPORATION
Dated: as of By:
Name:
Title:
THE BANK OF NEW YORK
By:
Name:
Title:
Attest:
Title: (SEAL)
Dated: as of
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Exhibit 4(f)
[FORM OF FACE OF NOTE]
[THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE
THEREOF. THIS NOTE MAY NOT BE TRANSFERRED TO, OR
REGISTERED OR EXCHANGED FOR NOTES REGISTERED IN THE
NAME OF, ANY PERSON OTHER THAN THE DEPOSITORY OR A
NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE
REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE. EVERY NOTE AUTHENTICATED
AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR OR IN LIEU OF, THIS NOTE SHALL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH
LIMITED CIRCUMSTANCES.]
No. $
LINCOLN NATIONAL CORPORATION
% Note Due , Series
Lincoln National Corporation, an Indiana corporation (the
"Company"), promises to pay to or registered assigns the
principal sum of $ Dollars [or, insert applicable
currency] on .
The Company will pay interest on the principal amount of this Note
semi-annually at the rate of % per annum. Interest payment dates are
and , and interest record dates are and
.
[Insert provisions on Additional Amounts, if applicable.]
All of the provisions on the other side of this Note are part hereof
as if set forth in full here.
(Seal) LINCOLN NATIONAL CORPORATION
ATTEST: BY:
[Vice] President
Secretary
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
AS TRUSTEE
By:
Authorized Officer
Dated:
<PAGE>
[FORM OF REVERSE OF NOTE]
LINCOLN NATIONAL CORPORATION
% Note Due , Series
1. Interest
The Company promises to pay interest on the principal amount of this
% Note due , Series (the "Notes") at the rate of %
per annum. The Company will pay interest semi-annuall
of each year. Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from ,
provided, that, if there is no existing default in the payment of interest and
if this Note is authenticated between a record date referred to on the other
side of this Note and the next succeeding interest payment date, interest shall
accrue from such interest payment date. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
[Insert provisions on the payment of Additional Amounts, if applicable.]
2. Method of Payment.
The Company will pay interest [and Additional Amounts] on the Notes
(except defaulted interest) to the persons who are registered holders of the
Notes ("Holders") at the close of business on the record date referred to on
the other side of this Note. Holders of Notes must surrender them to a Paying
Agent to collect principal payments. The Company will pay principal
[,Additional Amounts] and interest in money of the United States that at the
time of payment is legal tender for payment of public and private debts [or,
insert applicable currency]. The Company may at its option, however, pay
principal and interest by its check payable in such money. The Company may
mail an interest check or draft to a Holder's registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee"), [Address], will act
as Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to Holders. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
The Company issued the Notes under an Indenture dated as of _____,
____ (the "Indenture") between the Company and the Trustee. The terms
of the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
Section 77aaa-77bbbb) as in effect on the date of the Indenture. The Notes
are subject to all such terms, and Holders of Notes are referred to the
Indenture and said Act for a statement of them. The Notes are general
unsecured obligations of the Company limited to $ aggregate
principal amount.
The Indenture provides that one or more series of debt securities of
the Company in addition to this series of Notes (collectively the "Securities")
may be issued thereunder in various aggregate principal amounts that may
mature at different times, may bear interest (if any) at different rates, may be
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<PAGE>
subject to different redemption premiums (if any), may be subject to different
sinking fund or analogous provisions (if any), may be subject to different
Events of Default (as defined in the Indenture) and may otherwise vary as
provided in the Indenture. The Indenture does not limit the amount of
Securities that may be issued thereunder.
[5. Optional Redemption.
The Company may redeem all of the Notes at any time or some of
them from time to time [insert redemption dates, if applicable] at [insert
redemption price or table][, except that no redemption at the option of the
Company may be carried out prior to , directly or indirectly from the
proceeds of, or in anticipation of, the issuance of indebtedness for borrowed
money having an interest cost, computed in accordance with generally accepted
financial practice, of less than % per annum.]
Notice of redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each Holder of Notes to be redeemed at
his registered address. Notes in denominations larger than the smallest
authorized denomination may be redeemed in part. On and after the redemption
date interest ceases to accrue on Notes or portions of them called for
redemption.]
[6. Defeasance.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Notes and (b) certain restrictive covenants and
certain Events of Default upon compliance by the Company with certain conditions
set forth therein, which provisions apply to this Note.]
7. Denominations, Transfer and Exchange.
The Notes are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000 [or, insert applicable denomination]. A
Holder may register the transfer of or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. [The Registrar need not
register the transfer of or exchange any Note selected for redemption or
register the transfer of or exchange any Note for a period of 15 days before
a selection of Notes to be redeemed.]
8. Persons Deemed Owners.
The registered Holder of a Note may be treated as the owner of it for
all purposes.
9. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed
for one year, the Trustee or Paying Agent will pay the money back to the
Company at its request. After that, Holders entitled to the money must look
to the Company for payment.
10. Amendment, Supplement and Waiver.
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the holders of at least a majority
in principal amount of the outstanding Securities affected by such amendment
or supplement voting as one class. Subject to certain exceptions, any past
default may be waived by a majority in principal amount of the outstanding
Securities or compliance with any provision may be waived in a particular
instance with the consent of the holders of a majority in principal amount of
the outstanding Securities of any series affected on behalf of the holders of
the Securities of that series. Without the consent of any Holder, the
Company may amend or supplement the Indenture or the Notes to, among other
things, cure any ambiguity, defect or inconsistency.
-3-
<PAGE>
11. Successor Corporation.
When a successor corporation assumes all of the obligations of its
predecessor under the Notes and the Indenture, the predecessor corporation
will be released from those obligations.
12. Defaults and Remedies.
An Event of Default is: (a) default for 30 days in payment of any
interest or Additional Amounts, if any, on the Notes; (b) default in payment
of principal or premium, if any, on the Notes when due either at maturity,
upon redemption, by declaration or otherwise (except a failure to make payment
resulting from mistake, oversight or transfer difficulties not continuing for
more than 3 Business Days beyond the date on which such payment is due);
(c) default in payment of any sinking fund installment when due and payable
(except a failure to make payment resulting from mistake, oversight or
transfer difficulties not continuing for more than 3 Business Days beyond the
date on which such payment is due); (d) default by the Company in the
performance or breach of any other covenant or warranty contained in the
Notes or in the Indenture for the benefit of such Notes for a period of 60
days after the notice thereof; or (e) certain events in bankruptcy or
insolvency of the Company [or (f) insert any other events specified in the
Supplemental Indenture or Board Resolution under which the Notes are issued,
if applicable].
If an Event of Default described in clause (a), (b), (c) or, in the event
of a default with respect to less than all outstanding Securities, (d) above
shall have occurred and be continuing with respect to the Notes, either the
Trustee or the holders of 25 percent in principal amount of the Notes then
outstanding may declare the principal (or, in the case of original issue
discount Notes, the portion thereof specified in the terms thereof) of all
outstanding Notes and the interest accrued thereon and Additional Amounts
payable in respect thereof, if any, to be due and payable immediately. If
an Event of Default described in clause (d) (in the event of a default with
respect to all outstanding Securities) or (e) above shall have occurred and
be continuing, either the Trustee or the holders of 25 percent in principal
amount of all Securities then outstanding (voting as one class) may declare
the principal (or, in the case of original issue discount Securities, the
portion of the principal amount thereof specified in the terms thereof)
of all Securities then outstanding and the interest accrued thereon
and Additional Amounts payable in respect thereof, if any, to be due and
payable immediately, but upon certain conditions such declarations may be
annulled and past defaults (except for defaults in the payment of principal
of, or premium, interest or Additional Amounts, if any, on such Securities)
may be waived by the holders of a majority in principal amount of the
Securities of such series (or of all series, as the case may be) then
outstanding. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture or the Notes. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, holders of a majority in principal amount of
the outstanding Securities may direct the Trustee in its exercise of any
trust or power with respect to the Securities. The Trustee may withhold from
Holders notice of any continuing default (except a default in payment of
principal, premium, if any, or interest or Additional Amounts, if any, or any
sinking fund or purchase fund installment) if it determines that withholding
notice is in their interests. The Company is required to file periodic
reports with the Trustee as to the absence of default.
13. Authentication.
This Note shall not be valid until the Trustee signs the certificate of
authentication on the other side of this Note.
-4-
Exhibit 4(g)
[FORM OF FACE OF DEBENTURE]
[THIS DEBENTURE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITORY OR A NOMINEE THEREOF. THIS DEBENTURE MAY NOT BE
TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR DEBENTURES
REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITORY
OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
EVERY DEBENTURE AUTHENTICATED AND DELIVERED UPON REGISTRATION
OF TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS DEBENTURE
SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN
SUCH LIMITED CIRCUMSTANCES.]
No. $
LINCOLN NATIONAL CORPORATION
% Debenture Due , Series
Lincoln National Corporation, an Indiana corporation (the "Company"),
promises to pay to or registered assigns the principal sum of
$ Dollars [or, insert applicable currency] on .
The Company will pay interest on the principal amount of this Debenture semi-
annually at the rate of % per annum. Interest payment dates are
and , and interest record dates are and .
[Insert provisions on Additional Amounts, if applicable.]
All of the provisions on the other side of this Debenture are part hereof as
if set forth in full here.
(Seal) LINCOLN NATIONAL CORPORATION
ATTEST: By:
[Vice] President
Secretary
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
AS TRUSTEE
By:
Authorized Officer
Dated:
<PAGE>
[FORM OF REVERSE OF DEBENTURE]
LINCOLN NATIONAL CORPORATION
% Debenture Due , Series
1. Interest.
The Company promises to pay interest on the principal amount of this %
Debenture due , Series (the "Debentures") at the rate of
% per annum. The Company will pay interest semi-annually on
and of each year. Interest on the Debentures will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from , provided, that, if there is no existing default in the
payment of interest and if this Debenture is authenticated between a record
date referred to on the other side of this Debenture and the next succeeding
interest payment date, interest shall accrue from such interest
payment date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
[Insert provisions on the payment of Additional Amounts, if applicable.]
2. Method of Payment.
The Company will pay interest [and Additional Amounts] on the Debentures
(except defaulted interest) to the persons who are registered holders of the
Debentures ("Holders") at the close of business on the record date referred to
on the other side of this Debenture. Holders of Debentures must surrender
them to a Paying Agent to collect principal payments [and Additional
Amounts]. The Company will pay principal [, Additional Amounts] and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts [or, insert applicable currency]. The
Company may at its option, however, pay principal and interest by its check
payable in such money. The Company may mail an interest check or draft to a
Holder's registered address.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee), [Address], will act as Paying
Agent and Registrar. The Company may change any Paying Agent, Registrar or
co-Registrar without notice to Holders. The Company or any of its Subsidiaries
may act as Paying Agent, Registrar or co-Registrar.
-2-
<PAGE>
4. Indenture.
The Company issued the Debentures under an Indenture dated as of ______,
____ (the "Indenture") between the Company and the Trustee. The terms of the
Debentures include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.
Code Section 77aaa-77bbbb) as in effect on the date of the Indenture. The
Debentures are subject to all such terms, and Holders of Debentures are
referred to the Indenture and said Act for a statement of them. The
Debentures are general unsecured obligations of the Company limited
to $ aggregate principal amount.
The Indenture provides that one or more series of debt securities of the
Company in addition to this series of Debentures (collectively the
"Securities") may be issued thereunder in various aggregate principal amounts
that may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption premiums (if any), may be
subject to different sinking fund or analogous provisions (if any), may be
subject to different Events of Default (as defined in the Indenture) and may
otherwise vary as provided in the Indenture. The Indenture does not limit
the amount of Securities that may be issued thereunder.
[5. Optional Redemption.
The Company may redeem all of the Debentures at any time or some of them
from time to time [insert redemption dates, if applicable] at [insert
redemption price or table] [, except that no redemption at the option of the
Company may be carried out prior to , directly or indirectly from
the proceeds of, or in anticipation of, the issuance of indebtedness for
borrowed money having an interest cost, computed in accordance with generally
accepted financial practice, of less than % per annum.]]
[6. Sinking Fund.
The Company will redeem $ principal amount of Debentures on , ,
and on each thereafter through , at
a redemption price of 100% of principal amount, plus accrued interest to the
redemption date, by paying such $ to the Trustee, as a sinking fund
payment, on or before each such . The Company may reduce the principal
amount of Debentures to be redeemed pursuant to this paragraph 6 by
subtracting 100% of the principal amount of any Debentures that the Company
has delivered to the Trustee for cancellation or redeemed other than pursuant
to this paragraph 6. The Company may so subtract the same Debenture only once.]
[7. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than 60 days
before the redemption date to each Holder of Debentures to be redeemed at his
registered address. Debentures in denominations larger than the smallest
authorized denomination may be redeemed in part. On and after the redemption
date interest ceases to accrue on Debentures or portions of them called for
redemption.]
[8. Defeasance.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Debentures and (b) certain restrictive covenants
and certain Events of Default upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Debenture.]
9. Denominations, Transfer and Exchange.
The Debentures are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000 [or, insert applicable denomination].
A Holder may register the transfer of or exchange Debentures in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. [The Registrar need not
register the transfer of or exchange any Debenture selected for redemption or
register the transfer of or exchange any Debenture for a period of 15 days
before a selection of Debentures to be redeemed.]
10. Persons Deemed Owners.
The registered Holder of a Debenture may be treated as the owner of it for
all purposes.
11. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for one
year, the Trustee or Paying Agent will pay the money back to the Company at its
request. After that, Holders entitled to the money must look to the Company for
payment.
12. Amendment, Supplement and Waiver.
Subject to certain exceptions, the Indenture or the Debentures may be amended
or supplemented with the consent of the holders of at least a majority in
principal amount of the outstanding Securities affected by such amendment or
supplement voting as one class. Subject to certain exceptions, any past default
may be waived by a majority in principal amount of the outstanding Securities or
compliance with any provision may be waived in a particular instance with the
consent of the holders of a majority in principal amount of the outstanding
Securities of any series affected on behalf of the holders of the Securities
of that series. Without the consent of any Holder, the Company may amend or
supplement the Indenture or the Debentures to, among other things, cure any
ambiguity, defect or inconsistency.
13. Successor Corporation.
When a successor corporation assumes all of the obligations of its predecessor
under the Debentures and the Indenture, the predecessor corporation will be
released from those obligations.
-4-
<PAGE>
14. Defaults and Remedies.
An Event of Default is: (a) default for 30 days in payment of any interest
or Additional Amounts, if any, on the Debentures; (b) default in payment of
principal or premium, if any, on the Debentures when due either at maturity,
upon redemption, by declaration or otherwise (except a failure to make payment
resulting from mistake, oversight or transfer difficulties not continuing for
more than 3 Business Days beyond the date on which such payment is due);
(c) default in payment of any sinking fund installment when due and payable
(except a failure to make payment resulting from mistake, oversight or transfer
difficulties not continuing for more than 3 Business Days
beyond the date on which such payment is due); (d) default by the Company in
the performance or breach of any other covenant or warranty contained in the
Debentures or in the Indenture for the benefit of such Debentures for a
period of 60 days after the notice thereof; or (e) certain events in
bankruptcy or insolvency of the Company [or (f) insert any other events
specified in the Supplemental Indenture or Board Resolution under which the
Debentures are issued, if applicable].
If an Event of Default described in clause (a), (b), (c) or, in the event of a
default with respect to less than all outstanding Securities, (d) above shall
have occurred and be continuing with respect to the Debentures, either the
Trustee or the holders of 25 percent in principal amount of the Debentures
then outstanding may declare the principal (or, in the case of original issue
discount Debentures, the portion thereof specified in the terms thereof)of all
outstanding Debentures, and the interest accrued thereon and Additional
Amounts payable in respect thereof, if any, to be due and
payable immediately. If an Event of Default described in clause
(d) (in the event of a default with respect to all outstanding Securities) or
(e) above shall have occurred and be continuing, either the Trustee or the
holders of 25 percent in principal amount of all Securities then outstanding
(voting as one class) may declare the principal (or, in the case of the
original issue discount Securities, the portion of the principal amount
thereof specified in the terms thereof) of all Securities then
outstanding and the interest accrued thereon and Additional Amounts payable in
respect thereof, if any, to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults (except for
defaults in the payment of principal of, or premium, interest or Additional
Amounts, if any, on such Securities) may be waived by the holders of a
majority in principal amount of the Securities of such series (or of all
series, as the case may be) then outstanding. Holders may not enforce the
Indenture or the Debentures except as provided in the Indenture or the
Debentures. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain
limitations, holders of a majority in principal amount of the outstanding
Securities may direct the Trustee in its exercise of any trust or power with
respect to the Securities. The Trustee may withhold from Holders notice of
any continuing default (except a default in payment of principal, premium, if
any, or interest or Additional Amounts, if any, or any sinking
fund or purchase fund installment) if it determines that withholding notice is
in their interests. The Company is required to file periodic reports with the
Trustee as to the absence of default.
15. Authentication.
This Debenture shall not be valid until the Trustee signs the certificate of
authentication on the other side of this Debenture.
Exhibit 4(h)
[FORM OF FACE OF ZERO COUPON SECURITY]
[THIS ZERO COUPON SECURITY IS A GLOBAL SECURITY WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE THEREOF. THIS ZERO COUPON SECURITY MAY NOT BE
TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR ZERO
COUPON SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITORY OR A NOMINEE THEREOF AND NO
SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY ZERO
COUPON SECURITY AUTHENTICATED AND DELIVERED UPON
REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR OR IN
LIEU OF, THIS ZERO COUPON SECURITY SHALL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.]
No. $
LINCOLN NATIONAL CORPORATION
Zero Coupon Security, Series
Lincoln National Corporation, an Indiana corporation (the "Company"),
promises to pay to or registered assigns the principal sum of $
dollars [or, insert applicable currency] on .
The principal amount of this Zero Coupon Security does not bear interest
except as provided on the other side hereof.
[Insert provisions on Additional Amounts, if applicable.]
All of the provisions on the other side of this Zero Coupon Security are
part hereof as if set forth in full here.
(Seal) LINCOLN NATIONAL CORPORATION
ATTEST: By:
[Vice] President
Secretary
This is one of the Securities of the series designated herein and referred
to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
AS TRUSTEE
By:
Authorized Officer
Dated:
<PAGE>
[FORM OF REVERSE OF ZERO COUPON SECURITY]
FOR THE PURPOSES OF SECTION 1272 OF THE UNITED STATES
INTERNAL REVENUE CODE OF 1986, AS AMENDED, THE ISSUE PRICE
OF THIS ZERO COUPON SECURITY IS % OF ITS PRINCIPAL AMOUNT
AND THE ISSUE DATE IS .
LINCOLN NATIONAL CORPORATION
Zero Coupon Security, Series
1. No Interest Payable.
The principal amount of this Zero Coupon Security, Series (the "Zero
Coupon Securities") does not bear interest and no interest is payable
otherwise with respect to this Zero Coupon Security, except in the case of
default in payment of principal upon acceleration
[, redemption] or maturity, and in such case the amount in default shall bear
interest at the rate of __% per annum (to the extent enforceable
under applicable law) from the date of default in payment to the date such
payment has been made or duly provided for.
[Insert provisions on payment of Additional Amounts, if applicable.]
2. Method of Payment.
Holders of Zero Coupon Securities ("Holders") must surrender them to a
Paying Agent to collect principal payments [and Additional Amounts]. The
Company will pay principal [and Additional Amounts] in money of the United
States that at the time of payment is legal tender for payment of public and
private debts [or, insert applicable currency]. The Company may at its option,
however, pay principal by its check payable in such money.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee"), [Address], will act as
Paying Agent and Registrar. The Company may change any Paying Agent,
Registrar or co-Registrar without notice to Holders. The Company or any of its
Subsidiaries may act as Paying Agent, Registrar or co-Registrar.
-2-
<PAGE>
4. Indenture.
The Company issued the Zero Coupon Securities under an Indenture
dated as of _______, ____ (the "Indenture") between the Company and the
Trustee. The terms of the Zero Coupon Securities include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code Section 77aaa-77bbbb) as in effect on the
date of the Indenture. The Zero Coupon Securities are subject to all such
terms, and Holders of Zero Coupon Securities are referred to the Indenture
and said Act for a statement of them. The Zero Coupon Securities are general
unsecured obligations of the Company limited to $ aggregate
principal amount.
The Indenture provides that one or more series of debt securities of the
Company in addition to this series of Zero Coupon Securities (collectively the
"Securities") may be issued thereunder in various aggregate principal amounts
that may mature at different times, may bear interest (if any) at different
rates, may be subject to different redemption premiums (if any), may be subject
to different sinking fund or analogous provisions (if any), may be subject to
different Events of Default (as defined in the Indenture) and may otherwise
vary as provided in the Indenture. The Indenture does not limit the amount of
Securities that may be issued thereunder.
[5. Optional Redemption.
The Company may redeem all of the Zero Coupon Securities at any time
or some of them from time to time [insert redemption dates, if applicable] at
[insert redemption price or table] [, except that no redemption at the option
of the Company may be carried out prior to , directly or indirectly from
the proceeds of, or in anticipation of, the issuance of indebtedness for
borrowed money having an interest cost, computed in accordance with generally
accepted financial practice, of less than % per annum.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each Holder of Zero Coupon Securities to be
redeemed at his registered address. Zero Coupon Securities in denominations
larger than the smallest authorized denomination may be redeemed in part.]
[6. Defeasance.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Zero Coupon Securities and (b) certain restrictive
covenants and certain Events of Default upon compliance by the Company with
certain conditions set forth therein, which provisions apply to this Zero
Coupon Security.]
7. Denominations, Transfer and Exchange
The Zero Coupon Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000 [or, insert applicable
denomination]. A Holder may register the transfer of or exchange Zero Coupon
Securities in accordance with the Indenture. The Registrar may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. [The Registrar need not register the transfer of or exchange any
Zero Coupon Security selected for redemption or register the transfer of or
exchange any Zero Coupon Security for a period of 15 days before a selection of
Zero Coupon Securities to be redeemed.]
8. Persons Deemed Owners.
The registered Holder of a Zero Coupon Security may be treated as the
owner of it for all purposes.
9. Unclaimed Money.
If money for the payment of principal remains unclaimed for one year,
the Trustee or Paying Agent will pay the money back to the Company at its
request. After that, Holders entitled to the money must look to the Company
for payment.
-3-
<PAGE>
10. Amendment, Supplement and Waiver.
Subject to certain exceptions, the Indenture or the Zero Coupon Securities
may be amended or supplemented with the consent of the holders of at least a
majority in principal amount of the outstanding Securities affected by such
amendment or supplement voting as one class. Subject to certain exceptions, any
past default may be waived by a majority in principal amount of the outstanding
Securities or compliance with any provision may be waived in a particular
instance with the consent of the holders of a majority in principal amount of
the outstanding Securities of any series affected on behalf of the holders of
the Securities of that series. Without the consent of any Holder, the Company
may amend or supplement the Indenture or the Zero Coupon Securities to, among
other things, cure any ambiguity, defect or inconsistency.
11. Successor Corporation.
When a successor corporation assumes all of the obligations of its
predecessor under the Zero Coupon Securities and the Indenture, the
predecessor corporation will be released from those obligations.
12. Defaults and Remedies.
An Event of Default is: (a) default for 30 days in payment of any
Additional Amounts, if any, on the Zero Coupon Securities; (b) default in
payment of principal or premium, if any, on the Zero Coupon Securities when due
either at maturity, upon redemption, by declaration or otherwise (except a
failure to make payment resulting from mistake, oversight or transfer
difficulties not continuing for more than 3 Business Days beyond the date on
which such payment is due); (c) default in payment of any sinking fund
installment when due and payable (except a failure to make payment resulting
from mistake, oversight or transfer difficulties not continuing for more than 3
Business Days beyond the date on which such payment is due); (d) default by
the Company in the performance or breach of any other covenant or warranty
contained in the Zero Coupon Securities or in the Indenture for the benefit
of such Zero Coupon Securities for a period of 60 days after the notice
thereof; or (e) certain events in bankruptcy or insolvency of the
Company [or (f) insert any other events specified in the Supplemental Indenture
or Board Resolutions under which the Zero Coupon Securities are issued, if
applicable].
If an Event of Default described in clause (a), (b), (c) or, in the event of
default with respect to less than all outstanding Securities, (d) above shall
have occurred and be continuing with respect to the Zero Coupon Securities,
either the Trustee or the holders of 25 percent in principal amount of the
Zero Coupon Securities then outstanding may declare (i) that portion of the
principal equal to the initial public offering price of the Zero Coupon
Securities plus accrued amortization of the original issue discount calculated
using the "interest" method (computed in accordance with generally accepted
accounting principles in effect on the date of the Indenture) from ,
to the date of acceleration, and (ii) any accrued interest from the date of
default to the date of acceleration, and upon such declaration such amount
shall become due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture. If an Event of Default
described in clause (d) (in the event of a default with respect to all
outstanding Securities) or (e) above shall have occurred and be continuing,
either the Trustee or the holders of 25 percent in principal amount of all
Securities then outstanding (voting as one class) may declare the principal
(or, in the case of the Zero Coupon Securities the amount specified above) of
all Securities then outstanding and the interest accrued thereon and Additional
Amounts payable in respect thereof, if any, to be due and payable
immediately, but upon certain conditions such declarations may be annulled and
past defaults(except for defaults in the payment of principal of, or premium,
interest or Additional Amounts, if any, on such Securities) may be waived by
the holders of a majority in principal amount of the Securities of such series
(or of all series, as the case may be) then outstanding. Holders may not
enforce the Indenture or the Zero Coupon Securities except as provided in the
Indenture or the Zero Coupon Securities. The Trustee may require indemnity
satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, holders of a majority in
principal amount of the outstanding Securities may direct the Trustee in its
exercise of any trust or power with respect to the Securities.
-4-
<PAGE>
The Trustee may withhold from Holders notice of any continuing default
(except a default in payment of principal, premium, if any, or Additional
Amounts, if any, or any sinking fund or purchase fund installment) if it
determines that withholding notice is in their interests. The Company
is required to file periodic reports with the Trustee as to the
absence of default.
13. Authentication.
This Zero Coupon Security shall not be valid until the Trustee signs the
certificate of authentication on the other side of this Zero Coupon Security.
-5-
GARDNER, CARTON & DOUGLAS
Suite 3400-Quaker Tower
321 North Clark Street
Chicago, Illinois 60610-4795
(312) 644-3000
August 18, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Lincoln National Corporation
Registration Statement on Form S-3
Ladies and Gentlemen:
As counsel to Lincoln National Corporation, an Indiana corporation
(the "Company"), we have participated in the legal proceedings and matters
relating to the proposed registration of $500,000,000 aggregate public
offering price of (i) debt securities (the "Debt Securities"), (ii) shares of
its preferred stock, without par value (the "Preferred Stock"), and
(iii) shares of its common stock, without par value (the "Common Stock").
The Debt Securities, Preferred Stock and Common Stock are collectively
referred to herein as the "Securities". The Debt Securities will be issued
under an Indenture (the "Indenture") between the Company and The Bank of New
York, as Trustee.
We advise you that in our opinion:
1. The Company is a corporation duly organized and existing under
and by virtue of the laws of the State of Indiana and has adequate corporate
powers to own and operate its property and to transact the business in which
it is engaged.
2. When the Registration Statement on Form S-3 relating to the
Securities has become effective, and provided no stop order shall have been
issued by the Securities and Exchange Commission relating thereto, and
further provided that the Securities are qualified for sale (or exempt) under
the securities laws of the states in which they are offered for sale:
(i) the Common Stock, when issued, sold and delivered in
the manner and for the consideration stated in the Registration Statement
and any Prospectus Supplement relating thereto, will be duly authorized
and validly issued, fully paid and non-assessable;
(ii) the Preferred Stock, when (a) the terms of any
particular series of Preferred Stock have been duly approved and
established in accordance with the resolutions of the board of directors;
(b) the Articles of Amendment to the Company's Articles of
Incorporation setting forth the terms of the series of Preferred Stock have
been filed with, and accepted for recording by, the State of Indiana; and
(c) the Preferred Stock has been issued, sold and delivered in the manner
and for the consideration stated in the Registration Statement and any
Prospectus Supplement relating thereto, will be duly authorized and
validly issued, fully paid and non-assessable; and
(iii) the Debt Securities, upon the execution and delivery of the Indenture
and the issuance and sale of such Debt Securities in conformance with the
provisions of the Indenture, will be, when sold, duly authorized, legally
issued, fully paid, non-assessable and binding obligations of the Company
entitled to all of the benefits of the Indenture.
The opinions set forth above are subject to the qualifications that (a)
enforcement of the Company's obligations under the Indenture and the Debt
Securities and the Articles of Amendment and the Preferred Stock, may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting creditors'
rights generally and (ii) general principles of equity (regardless of whether
such enforcement is sought in a proceeding at law or in equity), and
(b) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brougt.
We are aware that we are named in the Registration Statement as counsel for
the Company. We hereby consent to such use of our name in the Registration
Statement and to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Gardner, Carton & Douglas
Exhibit 12
<TABLE>
<CAPTION>
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
Six Months
Ended
June 30, Year Ended December 31,
1994 1993 1993 1992 1991 1990 1989
(million of dollars, except ratio data)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Income before federal
income tax and cumulative
effect of accounting
change ------------------ 223.7 249.2 587.8 424.7 198.8 200.1 330.3
Undistributed earnings
of unconsolidated
affiliates -------------- (4.9) (.2) .3
Fixed charges, excluding
interest on annuities
and financial products -- 31.7 31.2 62.9 74.6 97.4 98.2 109.7
Earnings, excluding interest
on annuities and
financial products ---- 250.5 280.4 650.7 499.1 296.5 298.3 440.0
Interest on annuities and
financial products ------ 622.9 653.0 1,315.8 1,261.7 1,143.5 987.4 862.6
Earnings --------------- 873.4 933.4 1,966.5 1,760.8 1,440.0 1,285.7 1,302.6
Fixed Charges:
Interest expense on debt - 22.7 21.9 44.3 53.8 71.2 72.3 86.0
Interest component of
rent expense ------------ 9.0 9.3 18.6 20.8 26.2 25.9 23.7
Fixed charges, excluding
interest on annuities
and financial products- 31.7 31.2 62.9 74.6 97.4 98.2 109.7
Interest on annuities and
financial products ------ 622.9 653.0 1,315.8 1,261.7 1,143.5 987.4 862.6
Fixed charges ---------- 654.6 684.2 1,378.7 1,336.3 1,240.9 1,085.6 972.3
Pre-tax earnings to cover
preferred stock dividends 9.8 10.9 24.2 20.3 13.0 10.4 19.9
Combined fixed charges
and preferred stock
dividends ------------- 664.4 695.1 1,402.9 1,356.6 1,253.9 1,096.0 992.2
Ratios of Earnings to Fixed Charges:
Excluding interest on
annuities and financial
products (1) ------------ 7.90 8.99 10.35 6.69 3.04 3.04 4.01
Including interest on
annuities and financial
products (2) ------------ 1.33 1.36 1.43 1.32 1.16 1.18 1.34
Ratio of earnings to
combined fixed charges
and preferred stock
dividends (3) ----------- 1.31 1.34 1.40 1.30 1.15 1.17 1.31
</TABLE>
<PAGE>
Exhibit 12 (continued)
(1) This ratio is comprised of the relationship of "earnings excluding
interest on annuities and financial products" to "fixed charges excluding
interest on annuities and financial products" as disclosed above.
(2) This ratio is comprised of the relationship of "earnings" to "fixed
charges" as disclosed above.
(3) This ratio is comprised of the relationship of "earnings" to "combined
fixed charges and preferred stock dividends" as disclosed above.
Exhibit 23(a)
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts"
in the Registration Statement (Form S-3) and related Prospectus of
Lincoln National Corporation for the registration of up to
$500,000,000 aggregate public offering price of either debt
securities, preferred stock or common stock or a combination
thereof and to the incorporation by reference therein of our report
dated February 10, 1994, with respect to the consolidated financial
statements and schedules of Lincoln National Corporation included
in its Annual Report (Form 10-K) for the year ended December 31,
1993, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Fort Wayne, Indiana
August 10, 1994
CONFORMED COPY
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
LINCOLN NATIONAL CORPORATION
(Exact name of obligor as specified in its charter)
Indiana 35-1140070
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
200 East Berry Street
Fort Wayne, Indiana 46802-2706
(Address of principal executive offices) (Zip code)
______________________
Debt Securities
(Title of the indenture securities)
==============================================================================
<PAGE> -2-
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.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of
the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
<PAGE> -3-
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
<PAGE> -4-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in The City of New
York, and State of New York, on the 16th day of August, 1994.
THE BANK OF NEW YORK
/s/
By: MARY JANE MORRISSEY
Name: Mary Jane Morrissey
Title: Assistant Vice President
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business
March 31, 1994, published in accordance with a call made by the
Federal Reserve Bank of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,984,207
Interest-bearing balances .......... 652,882
Securities:
Held-to-maturity securities ........ 1,554,924
Available-for-sale securities ...... 2,323,498
Federal funds sold in domestic
offices of the bank ................ 861,621
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................25,419,340
LESS: Allowance for loan and
lease losses ..............736,749
LESS: Allocated transfer risk
reserve .....................29,510
Loans and leases, net of unearned
income, allowance, and reserve 24,653,081
Assets held in trading accounts ...... 2,269,729
Premises and fixed assets (including
capitalized leases) ................ 649,048
Other real estate owned .............. 63,724
Investments in unconsolidated
subsidiaries and associated
companies .......................... 166,985
Customers' liability to this bank on
acceptances outstanding ............ 1,068,405
Intangible assets .................... 83,775
Other assets ......................... 1,519,064
Total assets ......................... $38,850,943
LIABILITIES
Deposits:
In domestic offices ................ $19,552,324
Noninterest-bearing .......7,628,562
Interest-bearing .........11,923,762
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,092,181
Noninterest-bearing ..........58,771
Interest-bearing ..........9,033,410
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,459,117
Securities sold under agreements
to repurchase .................... 95,459
Demand notes issued to the U.S.
Treasury ........................... 289,163
Trading liabilities .................. 968,864
Other borrowed money:
With original maturity of one year
or less .......................... 896,720
With original maturity of more than
one year ......................... 33,969
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,069,639
Subordinated notes and debentures .... 1,064,780
Other liabilities .................... 1,368,384
Total liabilities .................... 35,890,600
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ........................... 75,000
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,429,219
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 6,246)
Cumulative foreign currency transla-
tion adjustments .................. ( 5,580)
Total equity capital ................ 2,960,343
Total liabilities, limited-life pre-
ferred stock, and equity capital .. $38,850,943
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and
to the best of our knowledge and belief has been prepared in
conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
Alan R. Griffith |
Thomas A. Renyi | Directors
J. Carter Bacot |
