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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 6, 1998
REGISTRATION STATEMENT NO. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________
MONSANTO COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 43-0420020
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
800 North Lindbergh Boulevard
St. Louis, Missouri 63167
(314) 694-1000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
_________________
R. William Ide III, Esq.
Monsanto Company
800 North Lindbergh Boulevard
St. Louis, Missouri 63167
(314) 694-1000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
_________________
Copies to:
Barbara L. Blackford Robert F. Wall
Sonya Meyers Davis Terrence R. Brady
Monsanto Company Winston & Strawn
800 North Lindbergh Boulevard 35 West Wacker Drive
St. Louis, Missouri 63167 Chicago, Illinois 60601
(314) 694-1000 (312) 558-5600
_________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time after the effective date of this Registration Statement as the
Registrant shall determine.
_________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
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If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [_]_____________
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_]_______________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH
CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED (1) PER UNIT (2) OFFERING PRICE (1), (3) FEE
- ---------------- -------------- ---------------- ----------------------- ------------
<S> <C> <C> <C> <C>
Common Stock (4), (5)
Preferred Stock (4), (6)
Depositary Shares (4), (7)
Representing Preferred
Stock
Stock Purchase Contracts (4), (8)
Debt Securities (4), (9)
Common Stock Warrants (4), (10)
Preferred Stock Warrants (4), (11)
Depositary Share Warrants (4), (6), (12)
Debt Warrants (4), (13)
Totals $2,000,000,000 (4), $2,000,000,000 $590,000
(6), (7), (8), (9), (10),
(11), (12), (13)
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</TABLE>
(1) In U.S. dollars or the equivalent thereof in one or more foreign currencies
or currency units or composite currencies, including the European Currency
Unit.
(2) The Proposed Maximum Offering Price Per Unit will be determined from time
to time by the Registrant in connection with the issuance of the
Securities.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) of the Securities Act of 1933, as amended (the
"Securities Act").
(4) This Registration Statement covers Common Stock issued other than on
conversion of Debt Securities, conversion of Preferred Stock, exercise of
Common Stock Warrants or exercise of Stock Purchase Contracts and, subject
to notes 6, 7, 10, 11, 12 and 13, the number of other Securities listed
above as may from time to time be issued at indeterminate prices, but with
an aggregate initial offering price for all such Common Stock and other
Securities not to exceed $2,000,000,000. Also includes such presently
indeterminate number of additional shares of Common Stock ("Additional
Common Stock") as may be issued on (i) conversion of any Debt Securities as
may be issued, if and to the extent convertible into Common Stock, (ii)
conversion of any Preferred Stock as may be issued separately, on
conversion of Debt Securities or exercise of Preferred Stock
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Warrants, if and to the extent such Preferred Stock is convertible into
Common Stock, (iii) exercise of any Common Stock Warrants as may be issued,
if and to the extent exercisable for Common Stock or (iv) exercise of any
Stock Purchase Contract as may be issued, if and to the extent exercisable
for Common Stock. The Amount to be Registered, Proposed Maximum Offering
Price Per Unit, Proposed Maximum Aggregate Offering Price and Amount of
Registration Fee with respect to such Debt Securities, Preferred Stock,
Common Stock Warrants and Stock Purchase Contracts include such Additional
Common Stock.
(5) Each share of Common Stock includes a right, ten of which rights will allow
the holder to purchase from the Registrant one one-hundredth of a share of
Series A Junior Participating Preferred Stock (the "Rights"). Prior to the
occurrence of certain events, none of which have occurred as of the date
hereof, the Rights will not be exercisable or evidenced separately from the
Common Stock.
(6) Includes Preferred Stock issued other than on conversion of Debt
Securities, exercise of Preferred Stock Warrants or exercise of Stock
Purchase Contracts. Also includes such presently indeterminate number of
additional shares of Preferred Stock ("Additional Preferred Stock") as may
be issued on (i) conversion of any Debt Securities as may be issued, if and
to the extent convertible into Preferred Stock, (ii) exercise of any
Preferred Stock Warrants as may be issued, if and to the extent exercisable
for Preferred Stock, (iii) conversion of any Depositary Shares, (iv)
exercise of any Depositary Share Warrants and subsequent conversion of
Depositary Shares received thereby or (v) exercise of any Stock Purchase
Contract as may be issued, if and to the extent exercisable for Preferred
Stock. The Amount to be Registered, Proposed Maximum Offering Price Per
Unit, Proposed Maximum Aggregate Offering Price and Amount of Registration
Fee with respect to such Debt Securities, Preferred Stock Warrants,
Depositary Shares, Depositary Share Warrants and Stock Purchase Contracts
include such Additional Preferred Stock.
(7) This Registration Statement covers such indeterminate number of Depositary
Shares as may be issued (i) if the Registrant elects to offer fractional
interests in shares of some or all of the Preferred Stock or (ii) on
exercise of any Depositary Share Warrants. The Amount to be Registered,
Proposed Maximum Offering Price Per Unit, Proposed Maximum Aggregate
Offering Price and Amount of Registration Fee (i) with respect to such
Preferred Stock, include such Depositary Shares and (ii) without
duplication, with respect to the Depositary Shares, include such Preferred
Stock.
(8) Includes Stock Purchase Contracts which may be issued other than as part of
Units of Stock Purchase Contracts and other Securities. Also includes
additional Stock Purchase Contracts ("Additional Stock Purchase Contracts")
which may be offered as part of Units of Stock Purchase Contracts and other
Securities. The Amount to be Registered, Proposed Maximum Aggregate
Offering Price Per Unit, Proposed Maximum Offering Price and Amount of
Registration Fee with respect to such Units and Stock Purchase Contracts
and other Securities include such Additional Stock Purchase Contracts.
(9) Includes the principal amount of Debt Securities and, as to Debt Securities
offered at an original issue discount, the offering price thereof. The
Registration Statement also includes such presently indeterminable amount
of Debt Securities ("Additional Debt Securities") as may be issued in
exchange for Preferred Stock or upon exercise of any Debt Warrants as may
be issued, if and to the extent exercisable for Debt Securities. The
Amount to be Registered, Proposed Maximum Offering Price Per Unit, Proposed
Maximum Offering Price and Amount of Registration Fee with respect to such
Preferred Stock and Debt Warrants include such Additional Debt Securities.
(10) Includes Common Stock Warrants which may be issued other than as part of
Units of Common Stock Warrants and other Securities. Also includes
additional Common Stock Warrants ("Additional Common Stock Warrants") which
may be offered as part of Units of Common Stock Warrants and other
Securities. The Amount to be Registered, Proposed Maximum Offering Price
Per Unit, Proposed Maximum Aggregate Offering Price and Amount of
Registration Fee with respect to such Units of Common Stock Warrants and
other Securities include such Additional Common Stock Warrants.
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(11) Includes Preferred Stock Warrants which may be issued other than as part
of Units of Preferred Stock Warrants and other Securities. Also includes
additional Preferred Stock Warrants ("Additional Preferred Stock Warrants")
which may be offered as part of Units of Preferred Stock Warrants and other
Securities. The Amount to be Registered, Proposed Maximum Offering Price
Per Unit, Proposed Maximum Aggregate Offering Price and Amount of
Registration Fee with respect to such Units of Preferred Stock Warrants and
other Securities include such Additional Preferred Stock Warrants.
(12) Includes Depositary Share Warrants which may be issued other than as part
of Units of Depositary Shares and other Securities. Also includes
additional Depositary Share Warrants ("Additional Depositary Share
Warrants") which may be offered as part of Units of Depositary Shares and
other Securities. The Amount to be Registered, Proposed Maximum Offering
Price Per Unit, Proposed Maximum Aggregate Offering Price and Amount of
Registration Fee with respect to such Units of Depositary Share Warrants
and other Securities include such Additional Depositary Share Warrants.
(13) Includes Debt Warrants which may be issued other than as part of Units of
Debt Warrants and other Securities. Also includes additional Debt Warrants
("Additional Debt Warrants") which may be offered as part of Units of Debt
Warrants and other Securities. The Amount to be Registered, Proposed
Maximum Offering Price Per Unit, Proposed Maximum Aggregate Offering Price
and Amount of Registration Fee with respect to such Units of Debt Warrants
and other Securities include such Additional Debt Warrants.
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 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
_______________________________________________________________________________
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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 MAY 6, 1998
$2,000,000,000
[LOGO] MONSANTO COMPANY
Common Stock, Preferred Stock, Depositary Shares, Debt Securities,
Warrants to Purchase Common Stock, Warrants to Purchase Preferred Stock,
Warrants to Purchase Debt Securities, Warrants to Purchase Depositary Shares and
Stock Purchase Contracts
_________________
Monsanto Company, a Delaware corporation (the "Company"), may from
time to time offer (i) shares of Common Stock, $2.00 par value per share
("Common Stock"), (ii) whole or fractional shares of Preferred Stock, no par
value per share (collectively, "Preferred Stock"), (iii) Preferred Stock
represented by Depositary Shares ("Depositary Shares"), (iv) debt securities
("Debt Securities"), which may be senior debt securities ("Senior Debt
Securities") or subordinated (including junior subordinated) debt securities
("Subordinated Debt Securities"), and which may be secured or unsecured, (v)
warrants to purchase Common Stock ("Common Stock Warrants"), (vi) warrants to
purchase Preferred Stock ("Preferred Stock Warrants"), (vii) warrants to
purchase Debt Securities ("Debt Warrants"), (viii) warrants to purchase
Depositary Shares ("Depositary Share Warrants" and, together with the Common
Stock Warrants, Preferred Stock Warrants and Debt Warrants, the "Warrants") and
(ix) contracts to purchase Common Stock or Preferred Stock ("Stock Purchase
Contracts"), with an aggregate public offering price of up to $2,000,000,000, on
terms to be determined at the time or times of offering. The Common Stock,
Preferred Stock, Depositary Shares, Debt Securities, Common Stock Warrants,
Preferred Stock Warrants, Debt Warrants, Depositary Share Warrants and Stock
Purchase Contracts (collectively referred to herein as the "Securities") may be
offered, separately or together, in separate classes or series, in amounts, at
prices and on terms to be set forth in one or more supplements to this
Prospectus (each, a "Prospectus Supplement").
All specific terms of the offering and sale of the Securities in
respect of which this Prospectus is being delivered will be set forth in the
applicable Prospectus Supplement and will include, when applicable: (i) in the
case of Common Stock, the maximum aggregate number of shares offered and any
public offering price; (ii) in the case of Preferred Stock, the specific class,
series, title and stated value, any dividend, liquidation, redemption,
conversion, voting and other rights, any dividend payment dates, any sinking
fund provisions, the maximum aggregate number of shares offered and any public
offering price; (iii) in the case of Depositary Shares, the aggregate number of
shares offered, the shares of whole or fractional Preferred Stock represented by
each such Depositary Share and any public offering price; (iv) in the case of
Debt Securities, the specific title, aggregate principal amount, denomination,
form, maturity, interest rate and time of payment, currency, ranking as Senior
or Subordinated Debt Securities, redemption, repayment or sinking fund
provisions, terms for conversion into Common Stock or Preferred Stock and any
public offering price; (v) in the case of Common Stock Warrants, the duration,
offering price, exercise price and detachability features; (vi) in the case of
Preferred Stock Warrants, description of the Preferred Stock for which each
warrant will be exercisable and the duration, offering price, exercise price and
detachability features, (vii) in the case of Debt Warrants, description of the
Debt Securities for which each warrant will be exercisable and the duration,
offering price, exercise price and detachability features; (viii) in the case of
Depositary Share Warrants, the duration, offering price, exercise price and
detachability features; and (ix) in the case of Stock Purchase Contracts, the
designation and number of shares of Preferred Stock or Common Stock issuable
thereunder, the purchase price of the Preferred Stock or Common Stock, the date
or dates on which the Preferred Stock or Common Stock is required to be
purchased by the holders of the Stock Purchase Contracts, any periodic payments
required to be made by the Company to the holders of the Stock Purchase Contract
or vice versa, and the terms of the offering and sale thereof. If any
Securities are offered together in the form of Units, the specific terms of any
such Units will be set forth in the applicable Prospectus Supplement.
The applicable Prospectus Supplement will also contain information,
when applicable, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities covered
by that Prospectus Supplement.
The Securities may be offered directly, through agents designated from
time to time by the Company, or to or through underwriters or dealers. If any
agents or underwriters are involved in the sale of any of the Securities, their
names and any applicable purchase price, fee, commission or discount arrangement
between or among them will be set forth in or will be calculable from the
information set forth in the applicable Prospectus Supplement. No Securities
may be sold without delivery of the applicable Prospectus Supplement describing
the method and terms of the offering of those Securities. See "Plan of
Distribution" for possible indemnification arrangements with underwriters,
dealers and agents.
The Common Stock is traded on the New York Stock Exchange under the
symbol "MTC."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
This Prospectus may not be used to consummate sales of the Securities
unless accompanied by a Prospectus Supplement.
The date of this Prospectus is May 6, 1998.
1
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Available Information
The Company has filed a Registration Statement on Form S-3 under the
Securities Act of 1933, as amended (the "Securities Act"), with the Securities
and Exchange Commission (the "Commission") with respect to the Securities. This
Prospectus which constitutes part of the Registration Statement does not contain
all of the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. Statements contained herein concerning the provisions of any
documents are not necessarily complete and, in each instance, reference is made
to the copy of such documents filed as an exhibit to the Registration Statement,
and each such statement shall be deemed qualified in its entirety by such
reference.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in accordance
therewith files reports, proxy statements and other information with 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 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the following Regional Offices of the Commission: Northeast
Regional Office, 7 World Trade Center, Suite 1300, New York, New York 10048; and
Midwest Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material can also be obtained from the
Public Reference Section of the Commission, at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Company is subject to the
electronic filing requirements of the Commission. Accordingly, pursuant to the
rules and regulations of the Commission, certain documents, including annual and
quarterly reports and proxy statements, filed by the Company with the Commission
have been or will be filed electronically. The Commission maintains a World Wide
Web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the Commission
at http://www.sec.gov. The Company's Common Stock is listed on the New York
Stock Exchange under the symbol MTC, and such reports, proxy statements and
other information can also be inspected at the offices of the New York Stock
Exchange, 20 Broad Street, New York, New York 10005. This Prospectus does not
contain all the information set forth in the Registration Statement and exhibits
thereto which the Company has filed with the Commission under the Securities
Act.
Information Incorporated By Reference
The following documents, each of which has been filed with the
Commission, are incorporated by reference in this Prospectus:
the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
the Company's Current Report on Form 8-K dated January 23, 1998;
the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A dated April 16, 1953; and
the description of the Company's preferred share purchase rights
("Rights") associated with the Common Stock contained in the Company's
Registration Statement on Form 8-A filed on January 31, 1990.
All documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date of
this Prospectus and prior to the termination of the offering of the Securities
registered hereby shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof from the respective dates of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified and superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any and all of the information that has been incorporated by reference in this
Prospectus, excluding exhibits. Such requests should be directed to Monsanto
Company, 800 North Lindbergh Boulevard, St. Louis, Missouri 63167, Attention:
Corporate Secretary, Telephone: (314) 694-1000.
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The Company
The Company and its subsidiaries are engaged in the worldwide
manufacture and sale of a diversified line of agricultural products, nutrition
and consumer products, pharmaceuticals, and other products. The Company was
incorporated in 1933 under Delaware law and is the successor to a Missouri
corporation, Monsanto Chemical Works, organized in 1901. Unless otherwise
indicated by the context, "Monsanto" means Monsanto Company and consolidated
subsidiaries, and the "Company" means Monsanto Company only. The Company's
principal executive offices are located at 800 N. Lindbergh Boulevard, St.
Louis, Missouri 63167.
Use of Proceeds
Unless otherwise indicated in an accompanying Prospectus Supplement,
the net proceeds to be received by the Company from the sale of the Securities
will be used for general corporate purposes, which may include capital
expenditures, acquisitions, reducing short-term borrowings, and meeting working
capital needs. Pending such uses, the Company may temporarily invest the net
proceeds in interest-bearing securities.
Ratio of Earnings to Fixed Charges
The following table sets forth the unaudited historical ratio of
earnings to fixed charges of the Company for the periods indicated.
Year Ended December 31,
------------------------------------
1997 1996 1995 1994 1993
---- ---- ---- ---- ----
2.42 4.44 4.60 5.50 3.87
The ratio of earnings to fixed charges represents the number of times
fixed charges (interest expense, capitalized interest, and other fixed charges)
are covered by income from continuing operations before income taxes,
extraordinary credits and fixed charges (other than capitalized interest), but
excluding undistributed earnings of affiliated companies. Income from
continuing operations before income taxes included charges for acquired in-
process research and development, restructuring and other unusual items of $684
million, $376 million and $90 million for the years ended December 31, 1997,
1996 and 1995, respectively. Excluding these unusual items, the ratio of
earnings to fixed charges would have been 5.32, 6.60 and 5.10 during such
periods in 1997, 1996 and 1995, respectively. The ratio was not materially
affected by the restructuring and other unusual items in 1994 and 1993. The
ratio of earnings to fixed charges for Preferred Stock has not been separately
presented because such ratio is identical to the ratio presented above.
Description of Capital Stock
The authorized capital stock of the Company consists of 1,000,000,000
shares of Common Stock, $2.00 par value per share, and 10,000,000 shares of
Preferred Stock, no par value per share, of which 595,284,668 shares of Common
Stock (exclusive of treasury shares) were issued and outstanding on December 31,
1997. No shares of Preferred Stock were outstanding at that date.
Common Stock
Subject to the rights of holders of any outstanding Preferred Stock,
the holders of outstanding shares of Common Stock are entitled to share ratably
in dividends declared out of assets legally available therefor at such time and
in such amounts as the Board of Directors may from time to time lawfully
determine.
Each holder of Common Stock is entitled to one vote for each share
held and, except as otherwise required by law or provided with respect to any
series of Preferred Stock, the holders of Common Stock will exclusively possess
all voting power. Holders of Common Stock are not entitled to cumulate votes
for the election of directors. The Common Stock is not entitled to conversion or
preemptive rights and is not subject to redemption or assessment. Subject to the
rights of holders of any outstanding Preferred Stock, upon liquidation,
dissolution or winding up of the Company, any assets legally available for
distribution to shareholders as such are to be distributed ratably among the
holders of the Common Stock at that time outstanding. The Common Stock presently
outstanding is, and the Common Stock issued
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upon conversion of the Debt Securities, exercise of the Common Stock Warrants
(upon payment in full of the Common Stock Warrant exercise price) or conversion
of any convertible Preferred Stock offered hereby, as the case may be, will be,
fully paid and nonassessable. The Common Stock is listed on the New York Stock
Exchange under the symbol "MTC" and any Common Stock offered will be listed,
subject to notice of issuance, on such exchange.
Preferred Stock
The following summary of the Preferred Stock does not purport to be
complete and is qualified in its entirety by reference to the Charter or the
applicable Certificate of Designations of Preferred Stock (each a "Preferred
Stock Designation"), the form of which is filed as, or will be incorporated by
reference as, an exhibit to the Registration Statement of which this Prospectus
is a part in connection with the issuance of such series of Preferred Stock.
The particular terms of any series of Preferred Stock will be described in the
applicable Prospectus Supplement.
The authorized shares of Preferred Stock are issuable, without further
shareholder approval, in one or more series as determined by the Board of
Directors, with such rights, privileges and preference as are fixed by the Board
of Directors, including dividend, liquidation, redemption, voting and other
rights preferred over the Common Stock, subject to the restrictions in the
Preferred Stock Designation or the Indentures referred to below. The Preferred
Stock issuable upon exercise of any Preferred Stock Warrants (upon payment in
full of the Preferred Stock Warrant exercise price), conversion of any
Depositary Shares, exercise of any Depositary Share Warrants and subsequent
conversion of any Depositary Shares received thereby or conversion of any Debt
Securities convertible into Preferred Stock will be fully paid and
nonassessable. The Preferred Stock may be convertible and, if so convertible,
may be converted into one or both of Common Stock and Debt Securities. The
Preferred Stock may also be exchangeable, at the option of the Company, for Debt
Securities (see "Description of Debt Securities"). If Preferred Stock, Preferred
Stock Warrants, Depositary Shares or Depositary Share Warrants are being offered
or if the Preferred Stock is exchangeable for Debt Securities, the accompanying
Prospectus Supplement will describe the rights, privileges, preferences and
restrictions of such Preferred Stock (including, without limitation, the
designation, the number of authorized shares of the series in question, the
dividend rate (or method of calculation), any voting rights, conversion rights,
anti-dilution protections, exchangeability provisions and terms of the Debt
Securities that are exchangeable for the Preferred Stock, any redemption
provisions, liquidation preferences and any sinking fund provisions). If
fractional interests in shares of Preferred Stock may be issued, such interests
may be issued in the form of Depositary Shares. See "Description of Depositary
Shares."
No shares of Preferred Stock are currently outstanding. Shares of
Preferred Stock, upon issuance against full payment of the purchase price
therefor, will be fully paid and nonassessable. The liquidation preference of
any series of Preferred Stock is not indicative of the price at which shares of
such series of Preferred Stock will actually trade on or after the date of
issuance.
Description of Rights
In January 1990, the Company's Board of Directors declared a dividend
of one Preferred Stock purchase right on each then-outstanding share of the
Common Stock. If a person or group acquires beneficial ownership of 20 percent
or more, or announces a tender offer that would result in beneficial ownership
of 20 percent or more, of the Company's outstanding Common Stock, the rights
become exercisable and, as a result of two subsequent stock splits, for every 10
rights held, the owner will be entitled to purchase one one-hundredth of a share
of a new series of Preferred Stock for $450. If Monsanto is acquired in a
business combination transaction while the rights are outstanding, for every 10
rights held, the holder will be entitled to purchase, for $450, common shares of
the acquiring company having a market value of $900. In addition, if a person
or group acquires beneficial ownership of 20 percent or more of the Company's
outstanding Common Stock, for every 10 rights held, the holder (other than such
person or members of such group) will be entitled to purchase, for $450, a
number of shares of Common Stock having a market value of $900. Furthermore, at
any time after a person or group acquires beneficial ownership of 20 percent or
more (but less than 50 percent) of the Company's outstanding Common Stock, the
Board of Directors may, at its option, exchange part or all of the rights (other
than rights held by the acquiring person or group) for shares of Common Stock on
a one-share-for-every-10-rights basis. At any time prior to the acquisition of
such a 20 percent position, the Company can redeem each right for $0.001. The
Board of Directors also is authorized to reduce the aforementioned 20 percent
thresholds to not less than 10 percent. The rights expire in January 2000.
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Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is First Chicago
Trust Company of New York and for the Preferred Stock will be set forth in the
applicable Prospectus Supplement.
Certain Antitakeover Effects of Certain Charter and By-laws Provisions and the
Rights
General. The Certificate of Incorporation (the "Charter") and the By-
Laws of the Company contain provisions that will make more difficult the
acquisition of control of the Company by means of a tender offer, open market
purchases, a proxy fight or other means that are not approved by the Board. The
purposes of such provisions of the Charter and the By-Laws are to discourage
certain types of transactions which may involve an actual or threatened change
of control of the Company and to encourage persons seeking to acquire control of
the Company to negotiate the terms of any proposed business combination or offer
with the Board. Set forth below is a general description of such provisions in
the Charter and the By-Laws which is qualified in its entirety by reference to
such documents. Capitalized terms used and not defined herein are defined in
the Charter or the By-Laws, as the case may be.
Classified Board of Directors. The Charter provides for the Board to
be divided into three classes serving staggered terms. Therefore, at least two
annual meetings of stockholders will generally be required to effect a change in
a majority of the Board.
Number of Directors; Removal; Filing Vacancies. The Charter provides
that the number of directors will be fixed from time to time exclusively by the
Board and that, subject to any rights of the holders of Preferred Stock, only a
majority of the Board of Directors then in office shall have the authority to
fill any vacancies on the Board of Directors. Moreover, the Company Charter
provides that directors may be removed only for cause and only by the
affirmative vote of holders of at least 80% of the voting power of all the then-
outstanding shares of Common Stock voting together as a single class.
Limitations on Stockholder Action by Written Consent; Special
Meetings. The Charter and By-Laws provide that stockholder action can be taken
only at an annual or special meeting of stockholders, and prohibit stockholder
action by written consent in lieu of a meeting. The By-Laws provide that,
subject to the rights of holders of any series of the relevant preferred stock,
special meetings of stockholders can be called only by the Chairman of the Board
of Directors of the Company, the President or pursuant to resolution of the
Board of Directors. Moreover, the business permitted to be conducted at any
special meeting of stockholders is limited to the purpose or purposes of the
meeting as stated in the notice of the meeting.
Advance Notice Provisions for Stockholder Nominations and Stockholder
Proposals. The By-Laws establish an advance notice procedure with regard to the
nomination, other than by or at the direction of the Board of Directors, of
candidates for election as directors and with regard to certain matters to be
brought before an annual meeting of stockholders.
Preferred Stock. The Charter authorizes the Board to establish series
of Preferred Stock and to determine, with respect to any series of Preferred
Stock, the voting powers, full or limited, or no voting powers, and such
designations, preferences and relative, participating, optional or otherwise
special rights and such qualifications, limitations or restrictions thereof as
are stated in the board resolutions providing for such series. The number of
authorized shares of Preferred Stock is 10,000,000. Although the Board does not
have any intention at the present time of doing so, it could issue a series of
Preferred Stock that could, subject to certain limitations imposed by applicable
securities laws and stock exchange rules, depending on the terms of such series,
impede the completion of a merger, tender offer or other takeover attempt. For
instance, such series of Preferred Stock might impede a business combination by
including class voting rights that would enable the holder to block such a
transaction.
Amendment of Certain Charter Provisions and the By-Laws. The Charter
contains provisions requiring the affirmative vote of the holders of at least
80% of the outstanding Common Stock to amend the provisions pertaining to
classification of the Board, the number of directors, filling vacancies in the
Board of Directors, removal of directors and the requirement that stockholders
can act only at annual or special meetings and not by written consent. The
Charter
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also requires the vote of at least 80% of the outstanding Common Stock for
stockholders to adopt, amend or repeal any provision of the By-Laws.
Preferred Share Purchase Rights. The Rights described above may have
certain antitakeover effects. The Rights will cause substantial dilution to a
person or group that attempts to acquire the Company and thereby effect a change
in the composition of the Board on terms not approved by the Board, including by
means of a tender offer at a premium to the market price, other than an offer
conditioned on a substantial number of Rights being acquired. The Rights should
not interfere with any merger or business combination approved by the Board
since the Rights may be redeemed by the Company at the applicable redemption
price prior to the time that a person or group triggers the exercise of the
Rights.
Description of Depositary Shares
General
The following summary of each of the Deposit Agreement, the Depositary
Shares and the Depositary Receipts (each as defined below) does not purport to
be complete and is qualified in its entirety by reference to the Deposit
Agreement and Depositary Receipts with respect to the Depositary Shares relating
to any particular series of Preferred Stock, the forms of which are filed as, or
will be incorporated by reference as, exhibits to the Registration Statement of
which this Prospectus is a part in connection with the issuance of such
Depositary Shares.
The following summary of the Deposit Agreement, the Depositary Shares
and the Depositary Receipts relates to certain terms and conditions applicable
to such Securities generally. The particular terms of any series of Depositary
Shares will be described in the applicable Prospectus Supplement. If so
indicated in such Prospectus Supplement, the terms of any such series may differ
from the terms set forth below.
The Company may, at its option, elect to offer fractional interests in
shares of Preferred Stock, rather than shares of Preferred Stock. If the
Company elects to do so, it will provide for the issuance by a Depositary (as
described below) to the public of receipts for Depositary Shares, each of which
will represent a fractional interest (to be set forth in the applicable
Prospectus Supplement) of a share of Preferred Stock.
The shares of any series of the Preferred Stock underlying any
Depositary Shares will be deposited under a separate Deposit Agreement (each, a
"Deposit Agreement") between the Company and a bank or trust company selected by
the Company with respect to such series, having its principal office in the
United States and having a combined capital and surplus of at least $50,000,000
(with respect to such series, the "Depositary"). The applicable Prospectus
Supplement relating to a series of Depositary Shares will set forth the name and
address of the Depositary. Subject to the terms of the applicable Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fractional interest in a share of the Preferred Stock underlying
such Depositary Share, to all the rights, preferences or privileges of such
Preferred Stock (including dividend, voting, redemption, conversion, exchange
and liquidation rights).
Depositary Shares will be evidenced by depositary receipts issued
pursuant to the applicable Deposit Agreement (the "Depositary Receipts").
The Depositary will distribute all cash dividends or other cash
distributions received by the Depositary in respect of the Preferred Stock to
the record holders of Depositary Shares relating to such Preferred Stock in
proportion to the respective numbers of such Depositary Shares held by such
holders on the relevant record date; provided, however, that in the case the
Company or Depositary shall be required to withhold and shall withhold from any
cash dividend or other cash distribution an amount on account of taxes, the
amount made available for distribution shall be reduced accordingly. The
Depositary will distribute only such amount, however, as can be distributed
without attributing to any holder of Depositary Shares a fraction of one cent,
and any balance not so distributed will be added to and treated as part of the
next succeeding distribution to record holders of such Depositary Shares.
In the event of a distribution other than in cash, the Depositary will
distribute securities or property received by it to the record holders of
Depositary Shares entitled thereto in proportion to the respective numbers of
such
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Depositary Shares held by such holders on the relevant record date, unless
the Depositary determines that it is not feasible to make such distribution, in
which case the Depositary may, with the Company's approval, adopt such method as
it deems equitable and practicable for the purpose of effecting such
distribution, including the public or private sale of such securities or
property. The net proceeds from any such sale shall be distributed to such
holders as provided in the case of a distribution received in cash.
Each Deposit Agreement will also contain provisions relating to the
manner in which any subscription or similar rights offered by the Company to
holders of the Preferred Stock of the applicable series will be made available
to holders of Depositary Shares.
Upon surrender of Depositary Receipts at the office of the Depositary
(unless the related Depositary Shares have previously been called for
redemption), the holder of the Depositary Shares evidenced thereby will be
entitled to delivery at such office, to or upon such holder's order, of the
number of whole shares of the related series of Preferred Stock and all money
and other property, if any, underlying such Depositary Shares. Holders of
Depositary Shares will be entitled to receive whole shares of the related series
of Preferred Stock on the basis set forth in the applicable Prospectus
Supplement, but holders of such whole shares of such Preferred Stock will not
thereafter be entitled to deposit such Preferred Stock or to receive receipts
evidencing Depositary Shares therefor. If the Depositary Receipts delivered by
the holder evidence a number of Depositary Shares in excess of the number of
Depositary Shares representing the number of whole shares of the related series
of Preferred Stock or Series A Junior Preferred Stock to be withdrawn, the
Depositary will deliver to such holder or upon such holder's order at the same
time a new Depositary Receipt evidencing such excess number of Depositary
Shares.
The terms, if any, on which the Depositary Shares relating to the
Preferred Stock of any series may be redeemed will be set forth in the
applicable Prospectus Supplement.
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock of any series are entitled to vote, the applicable Depositary
will mail the information contained in such notice of meeting to the record
holders of the Depositary Shares relating to such series of Preferred Stock.
Each record holder of such Depositary Shares on the record date (which will be
the same date as the record date for the Preferred Stock) will be entitled to
instruct the Depositary as to the exercise of the voting rights pertaining to
the number of shares of Preferred Stock underlying such holder's Depositary
Shares. The Depositary will endeavor, insofar as practicable, to vote the
number of whole shares of Preferred Stock underlying such Depositary Shares in
accordance with such instructions, and the Company will agree to take all action
that may be deemed necessary by the Depositary in order to enable the Depositary
to do so. To the extent the Depositary does not receive specific instructions
from the holders of Depositary Shares relating to such Preferred Stock, it will
abstain from voting such shares of Preferred Stock, unless otherwise indicated
by the holders of such Depositary Shares.
The form of Depositary Receipt evidencing the Depositary Shares and
any provision of the applicable Deposit Agreement may at any time be amended by
agreement between the Company and the Depositary. However, no amendment that
materially and adversely alters the rights of the existing holders of Depositary
Shares will be effective unless such amendment has been approved by the record
holders of at least a majority of the Depositary Shares then outstanding. A
Deposit Agreement may be terminated by the Company or the Depositary only if (i)
all outstanding Depositary Shares relating thereto have been redeemed and any
accumulated and unpaid dividends on the Preferred Stock represented by the
Depositary Shares, together with all other moneys and property, if any, to which
holders of Depositary Receipts are entitled, have been paid or distributed, (ii)
all Preferred Stock has been withdrawn or (iii) there has been a final
distribution in respect of the Preferred Stock of the applicable series in
connection with any liquidation, dissolution or winding up of the Company and
such distribution has been distributed to the holders of Depositary Receipts.
The Company will pay all transfer and other taxes and governmental
charges arising solely from the existence of any depositary arrangements. The
Company will pay all charges of each Depositary in connection with the initial
deposit of the Preferred Stock of any series, any redemption of such Preferred
Stock and any withdrawals of such Preferred Stock by holders of Depositary
Shares. Holders of Depositary Shares will be required to pay any other transfer
and other taxes and governmental charges and such other charges as are expressly
provided in the Deposit Agreement to be for their accounts.
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Each Depositary will forward to the holders of the applicable
Depositary Shares all notices, reports and communications from the Company which
are delivered to such Depositary and which the Company is required to furnish
the holders of the Depositary Receipts or Preferred Stock of the applicable
series.
Neither any Depositary nor the Company will be liable if it is
prevented or delayed by law or any circumstance beyond its control in performing
its obligations under any Deposit Agreement. Neither any Depositary nor the
Company will assume any obligation or be subject to any liability under any
Deposit Agreement other than for its negligence or willful misconduct, and they
will not be obligated to prosecute or defend any legal proceeding in respect of
any Depositary Shares or Preferred Stock unless indemnity satisfactory to them
is furnished. The Depositary will agree to perform its duties as are
specifically set forth in the Deposit Agreement using its reasonable best
efforts and in good faith. Any Depository or the Company may rely upon written
advice of counsel or accountants, or information provided by persons presenting
Preferred Stock for deposit, holders of Depositary Shares or other persons
believed by it to be competent and on documents believed by them to be genuine.
A Depositary may resign at any time by delivering to the Company
notice of its election to do so, and the Company may at any time remove a
Depositary, and such resignation or removal will take effect upon the
appointment of a successor Depositary and its acceptance of such appointment.
Such successor Depositary must be appointed within 60 days after delivery of the
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
Description of Debt Securities
The following description of the Debt Securities sets forth certain
general terms and provisions of the Debt Securities to which any Prospectus
Supplement may relate ("Offered Debt Securities"). The particular terms of the
Offered Debt Securities and the extent to which such general provisions may
apply will be described in a Prospectus Supplement relating to such Offered Debt
Securities.
Unless otherwise specified in the applicable Prospectus Supplement,
the Debt Securities will constitute senior, senior subordinated or subordinated
(including, if applicable, junior subordinated) debt of the Company and will be
issued under a Senior Debt Indenture (the "Senior Debt Indenture") or a
Subordinated Debt Indenture (the "Subordinated Debt Indenture"). The Chase
Manhattan Bank (the "Trustee") will serve as the trustee under the Senior Debt
Indenture. The Senior Debt Indenture and the Subordinated Debt Indenture are
sometimes referred to below individually as an "Indenture" and collectively as
the "Indentures." If and to the extent set forth in the applicable Prospectus
Supplement, the Debt Securities may be convertible into Preferred or Common
Stock of the Company or issued as part of Units of Debt Securities and other
Securities. If Debt Securities are to be issued as part of Units of Debt
Securities and other Securities or are to be issued in exchange for Preferred
Stock, the Prospectus Supplement will describe any applicable material federal
income tax consequences.
The following summaries of certain provisions of the Indentures and
the Debt Securities do not purport to be complete. Except to the extent set
forth in the Prospectus Supplement with respect to a particular issue of Debt
Securities, the Indentures are substantially identical, except for the
provisions relating to subordination, including the fact that Senior Debt
Securities will rank senior to the Subordinated Debt Securities.
General
The Indentures for the Debt Securities will not limit the amount of
additional indebtedness the Company or any of its subsidiaries may incur, except
as may be provided in the applicable Prospectus Supplement. The Debt Securities
will be senior or subordinated obligations of the Company, as set forth in the
accompanying Prospectus Supplement.
The applicable Prospectus Supplement will contain the following terms
of and information relating to any Debt Securities (to the extent such terms are
applicable to such Debt Securities and have not been otherwise disclosed): (a)
the specific title, aggregate principal amount, denomination and form; (b) the
date of maturity; (c) the interest rate or rates (or the method by which such
rate will be determined), if any; (d) the date from which interest will accrue,
the dates on which any such interest will be payable and the record date for any
interest payable on the interest payment date; (e) if other than the corporate
trust office of the trustee for such Debt Securities, the place or places where
the principal of,
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premium, if any, and interest, if any, on the Debt Securities will be payable;
(f) the portion of the principal amount of Debt Securities of the series payable
upon certain declarations of acceleration or the method by which such portion
shall be determined; (g) the currency, currencies or currency unit in which
payments will be made, if other than U.S. dollars; (h) whether the Debt
Securities are senior or subordinated Debt Securities; (i) any redemption,
repayment or sinking fund provisions, including the period or periods within
which, the currency, currencies or currency units in which and the other terms
and conditions upon which Debt Securities may be redeemed; (j) whether the Debt
Securities are convertible into Common Stock or Preferred Stock and the terms of
the security into which they are convertible (see "Description of Capital
Stock"), the conversion price, other terms related to conversion and any anti-
dilution protections; (k) whether the Debt Securities will be sold as part of
Units consisting of Debt Securities and other Securities; (l) if the amount of
payments of principal of or any premium or interest on any Debt Securities of
the series may be determined with reference to an index, formula or other
method, the index, formula or other method by which such amounts shall be
determined; (m) whether and by what method the Debt Securities of the series (or
certain covenants under the related Indenture) may be defeased and discharged by
the Company; (n) whether the Debt Securities of the series shall be issued in
whole or in part as book-entry securities; (o) any applicable material federal
income tax consequences; and (p) any other material specific terms of the Debt
Securities, including any material additional events of default or covenants
provided for with respect to the Debt Securities and any material terms that may
be required by or advisable under applicable laws or regulations.
Debt Securities may bear interest at a fixed rate or a floating rate.
Debt Securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate or as part of Units consisting of
Debt Securities and other Securities may be sold or deemed to be sold at a
discount below their stated principal amount. With respect to any Debt
Securities as to which the Company has the right to defer interest, the holders
of such Debt Securities may be allocated interest income for federal and state
income tax purposes without receiving equivalent, or any, interest payments. Any
material federal income tax considerations applicable to any such discounted
Debt Securities or to certain Debt Securities issued at par that are treated as
having been issued at a discount for federal income tax purposes will be
described in the applicable Prospectus Supplement.
Subordination of Subordinated Debt Securities
Any Subordinated Debt Securities will be subordinate and junior in
right of payment, to the extent and in the manner to be set forth in the
Indenture, to all "Senior Debt" of the Company. "Senior Debt" means, without
duplication, the principal, premium (if any) and unpaid interest on all present
and future (i) indebtedness of the Company for borrowed money, (ii) obligations
of the Company evidenced by bonds, debentures, notes or similar instruments,
(iii) indebtedness incurred, assumed or guaranteed by the Company in connection
with the acquisition by it or a Subsidiary of any business, properties or assets
(except purchase-money indebtedness classified as accounts payable under
generally accepted accounting principles), (iv) obligations of the Company as
lessee under leases required to be capitalized on the balance sheet of the
lessee under generally accepted accounting principles, (v) reimbursement
obligations of the Company in respect of letters of credit relating to
indebtedness or other obligations of the Company that qualify as indebtedness or
obligations of the kind referred to in clauses (i) through (iv) above, and (vi)
obligations of the Company under direct or indirect guarantees in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (i) through (v) above,
in each case unless in the instrument creating or evidencing the indebtedness or
obligation or pursuant to which the same is outstanding it is provided that such
indebtedness or obligation is not superior in right of payment to Senior Debt
Securities.
Certain Covenants of the Company
Restriction on Liens. The Senior Debt Indenture provides that the
Company will not, nor will it permit a Restricted Subsidiary to, secure
indebtedness for money borrowed by placing a Lien on any Operating Property
owned or leased by the Company or any Restricted Subsidiary or on any shares of
stock or Debt of any Restricted Subsidiary without equally and ratably securing
the Debt Securities, unless (i) the principal amount of such indebtedness plus
(ii) the Attributable Debt in respect of Sale and Leaseback Transactions (other
than Sale and Leaseback Transactions the proceeds of which are applied as
provided under (b) of the following paragraph) does not exceed 10% of the
Consolidated Net Assets of the Company and its consolidated subsidiaries. This
restriction will not apply to, and there shall be excluded in computing secured
indebtedness for purposes of this restriction, certain permitted liens,
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including (a) liens existing as of the date of the Indenture, (b) liens existing
at the time any corporation becomes a Restricted Subsidiary, (c) liens on
property existing at the time of acquisition and certain purchase money or
similar liens, (d) liens to secure certain development, operation, construction,
alteration, repair or improvement costs, (e) liens securing indebtedness owing
to the Company or another Restricted Subsidiary by a Restricted Subsidiary, (f)
liens in connection with either government contracts, including the assignment
of moneys due or to become due thereon or obligations issued by a state or a
commonwealth or certain other governmental entities, (g) certain liens in
connection with legal proceedings or arising in the ordinary course of business
and not in connection with the borrowing of money and (h) extensions,
substitutions, replacements or renewals of the foregoing. (Section 1007)
Restriction on Sale and Leaseback Transactions. The Senior Debt
Indenture further provides that the Company will not, nor will it permit any
Restricted Subsidiary to, enter into any Sale and Leaseback Transaction unless
either (a) the Attributable Debt in respect thereto and all other sale and
leaseback transactions entered into after the date of the Senior Debt Indenture
(other than those the proceeds of which are applied to reduce indebtedness under
(b) following), plus the aggregate amount of then outstanding secured
indebtedness not otherwise permitted or excepted without equally and ratably
securing the Debt Securities, does not exceed 10% of the Consolidated Net Assets
of the Company and its consolidated subsidiaries, or (b) an amount equal to the
fair value of the Operating Property leased is applied within 120 days to (i)
the purchase of any asset or any interest in an asset which would qualify after
purchase, as an Operating Property or (ii) the retirement of the Debt Securities
or other indebtedness maturing more than one year thereafter. (Section 1008)
Certain Definitions. Attributable Debt, in respect of the sale and
leaseback transactions described above, means, as of the time of determination,
the total obligation (discounted to present value at the rate per annum equal to
the discount rate which would be applicable to a capital lease obligation with
like term in accordance with generally accepted accounting principles) of the
lessee for rental payments (other than amounts required to be paid on account of
property taxes, maintenance, repairs, insurance, water rates and other items
which do not constitute payments for property rights) during the remaining
portion of the initial term of the lease included in such sale and leaseback
transaction. (Section 101)
Consolidated Net Assets is the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom all current liabilities (excluding certain renewable or extendible
indebtedness) as shown on the latest balance sheet of the Company and its
consolidated subsidiaries and computed in accordance with generally accepted
accounting principles. (Section 101)
An Operating Property is any real property or equipment located within
the United States and used primarily for manufacturing by the Company or any of
its Subsidiaries that has a net book value (after deduction of accumulated
depreciation) in excess of 2.0% of Consolidated Net Assets, other than any such
property or equipment (i) which is financed by obligations issued by a state,
commonwealth, territory or possession of the United States of America, or any
political subdivision or governmental authority of any of the foregoing, or (ii)
which, in the opinion of the Company's Board of Directors, is not of material
importance to the total business conducted by the Company and its Restricted
Subsidiaries taken as a whole. (Section 101)
A Restricted Subsidiary is any Subsidiary of the Company that owns any
Operating Property.
A Sale and Leaseback Transaction is any arrangement with any bank,
insurance company or other lender or investor (other than the Company or another
Restricted Subsidiary) providing for the leasing by the Company or any
Restricted Subsidiary of any Operating Property (except a lease for a temporary
period not to exceed three years by the end of which it is intended that the use
of such Operating Property by the lessee will be discontinued), which was or is
owned or leased by the Company or a Restricted Subsidiary and which has been or
is to be sold or transferred, more than 120 days after the acquisition or the
completion of construction and commencement of full operation thereof, by the
Company or such Restricted Subsidiary to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
on the security of such Operating Property.
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Redemption
If and to the extent set forth in the applicable Prospectus
Supplement, the Company will have the right to redeem the Debt Securities, in
whole or from time to time in part, after the date and at the redemption prices
set forth in the applicable Prospectus Supplement.
Events of Default
An Event of Default with respect to the Debt Securities of any series
is defined in the Indentures as: default in payment of principal of or premium,
if any, on any Debt Security of that series at Maturity; default for 30 days in
payment of interest on any Debt Security of that series; default for 30 days in
the deposit of any sinking fund payment when due in respect of that series;
failure by the Company in the performance of any other of the covenants or
warranties in the Indentures continued for 90 days after due notice by the
Trustee or by Holders of at least 25% in principal amount of the Outstanding
Debt Securities of that series; certain events of bankruptcy, insolvency or
reorganization of the Company; and any other Event of Default provided with
respect to Debt Securities of that series. (Section 501)
The Indentures provide that, if any Event of Default with respect to
Debt Securities of any series at the time Outstanding occurs and is continuing,
either the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Debt Securities of that series may declare the principal amount
(or, if the Debt Securities of that series are Original Issue Discount
Securities or Indexed Securities (as defined in the Indentures), such portion of
the principal amount of such Debt Securities as may be specified in the terms
thereof) of all Debt Securities of that series to be due and payable
immediately, but upon certain conditions such declaration may be annulled and
past defaults (except, unless theretofore cured, a default in payment of
principal of or premium, if any, or interest, if any, on the Debt Securities of
that series and certain other specified defaults) may be waived by the Holders
of a majority in principal amount of the Outstanding Debt Securities of that
series on behalf of the Holders of all Debt Securities of that series. (Sections
502 and 513)
Reference is made to the Prospectus Supplement relating to each series
of Debt Securities which are Original Issue Discount Securities for the
particular provisions relating to acceleration of the Maturity of a portion of
the principal amount of such Original Issue Discount Securities upon the
occurrence of an Event of Default and the continuation thereof.
The Indentures provide that the Trustee will, within 90 days after the
occurrence of a default with respect to Debt Securities of any series at the
time Outstanding, give to the Holders of the Outstanding Debt Securities of that
series notice of such default known to it if uncured or not waived, provided
that, except in the case of default in the payment of principal of or premium,
if any, or interest on any Debt Security of that series, or in the deposit of
any sinking fund payment which is provided for, such notice shall not be given
until 30 days after the occurrence of a default with respect to Outstanding Debt
Securities of such series. The term default with respect to any series of
Outstanding Debt Securities for the purpose only of this provision means the
happening of any of the Events of Default specified in the Indenture and
relating to such series of Outstanding Debt Securities, excluding any grace
periods and irrespective of any notice requirements. (Section 602)
The Indentures contain a provision entitling the Trustee, subject to
the duty of the Trustee during default to act with the required standard of
care, to be indemnified by the Holders of any series of Outstanding Debt
Securities before proceeding to exercise any right or power under the Indenture
at the request of the Holders of such series of Debt Securities. (Section 603)
The Indentures provide that the Holders of a majority in principal amount of
Outstanding Debt Securities of any series may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or other power conferred on the Trustee, with respect to
the Debt Securities of such series provided that the Trustee may decline to act
if such direction is contrary to law or the Indentures or would expose it to
personal liability. (Section 512)
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Defeasance of Debt Securities or Certain Covenants in Certain Circumstances
Defeasance and Discharge. Unless otherwise provided in the applicable
Prospectus Supplement, the terms of any series of Debt Securities will provide
that the Company will be discharged from any and all obligations in respect of
the Debt Securities of such series (except for certain obligations to register
the transfer or exchange of Debt Securities of such series, to replace stolen,
lost or mutilated Debt Securities of such series, to maintain paying agencies
and hold moneys for payment in trust) upon the deposit with the Trustee, in
trust, of money and/or U.S. Government Obligations which, through the payment of
interest and principal thereof in accordance with their terms, will provide
money in an amount sufficient to pay and discharge the principal of (and
premium, if any) and interest on, and any mandatory sinking fund payments
applicable to, the Debt Securities of such series on the stated maturity of such
payments in accordance with the terms of the Indenture and such Debt Securities.
Such discharge may only occur if, among other things, the Company has delivered
to the Trustee an Opinion of Counsel to the effect that the Company has received
from, or there has been published by, the United States Internal Revenue Service
a ruling, or there has been a change in tax law, in either case to the effect
that such a discharge will not be deemed, or result in, a taxable event with
respect to Holders of the Debt Securities of such series. (Article Thirteen of
the Senior Debt Indenture; Article Fifteen of the Subordinated Debt Indenture)
Defeasance of Certain Covenants. Unless otherwise provided in the
applicable Prospectus Supplement, the terms of any series of Debt Securities
will provide the Company with the option to omit to comply with certain
restrictive covenants, including those described in Sections 801, 1007 and 1008
of the Senior Debt Indenture. The Company, in order to exercise such option,
will be required to deposit with the Trustee money and/or U.S. Government
Obligations, which, through the payment of interest and principal thereof in
accordance with their terms, will provide money in an amount sufficient to pay
the principal of (and premium, if any) and interest on, and mandatory sinking
fund payments applicable to the Debt Securities of such series on the stated
maturity of such payments in accordance with the terms of the Indentures and
such Debt Securities. The Company will also be required to deliver to the
Trustee an opinion of counsel to the effect that the deposit and related
covenant defeasance will not cause the Holders of the Debt Securities of such
series to recognize income, gain or loss for federal income tax purposes. In the
event the Company exercises this option and the Debt Securities of such series
are declared due and payable because of the occurrence of any Event of Default,
the amount of money and U.S. Government Obligations, as the case may be, on
deposit with the Trustee will be sufficient to pay amounts due on the Debt
Securities of such series at the time of their Stated Maturity but may not be
sufficient to pay amounts due on the Debt Securities of such series at the time
of the acceleration resulting from such Event of Default. However, the Company
shall remain liable for such payments.
The Prospectus Supplement will state if any defeasance provision will
apply to Debt Securities offered in connection therewith.
Modification of the Indenture and Waiver of Covenants
The Indentures contain provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
principal amount of Outstanding Debt Securities of each series affected thereby,
to execute supplemental indentures adding any provisions to or changing or
eliminating any of the provisions of the Indentures or modifying the rights of
the Holders of Outstanding Debt Securities of such series, except that no such
supplemental indenture may, without the consent of the Holder of each
Outstanding Debt Security affected thereby, (a) change the Stated Maturity, or
reduce the principal amount, the premium, if any, thereon or the rate of payment
of interest thereon, of any Debt Security of any series, (b) reduce the
aforesaid percentage of Outstanding Debt Securities of any series, the consent
of the Holders of which is required for any supplemental indenture or for waiver
of compliance with certain provisions of the Indenture or certain defaults
thereunder or (c) effect certain other changes. (Section 902) The Indentures
also permit the Company to omit compliance with certain covenants in the
Indentures with respect to Debt Securities of any series upon waiver by the
Holders of a majority in principal amount of Outstanding Debt Securities of such
series.
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<PAGE>
Consolidation, Merger and Sale of Assets
The Indentures contain a provision permitting the Company, without the
consent of the Holders of any of the Outstanding Debt Securities under the
Indenture, to consolidate with or merge into any other corporation or transfer
or lease its assets substantially as an entirety to any person provided that:
(i) the successor is a corporation organized under the laws of any domestic
jurisdiction; (ii) the successor corporation assumes the Company's obligations
on the Debt Securities and under the Indentures; (iii) after giving effect to
the transaction no Event of Default, and no event which, after notice or lapse
of time, would become an Event of Default, shall have happened and be
continuing; and (iv) certain other conditions are met. (Sections 801 and 802)
Concerning the Trustee
The Chase Manhattan Bank is the Trustee under the Senior Debt
Indenture. Monsanto maintains deposit accounts and banking relationships with
The Chase Manhattan Bank. It is one of Monsanto's principal commercial banks
and has extended substantial credit facilities to Monsanto. The Chase Manhattan
Bank is a participant in revolving credit agreements with the Company and is the
tender agent and paying agent for various industrial revenue bonds of the
Company. The Trustee also serves as trustee under an indenture relating to the
7.09% Guaranteed Amortizing ESOP Notes and 8.13% Guaranteed Amortizing ESOP
Debentures of the Monsanto Defined Contribution and Employee Stock Ownership
Trust, which are guaranteed by the Company, and under indentures relating to the
Company's Medium-Term Notes, Series C and D, and its 8.70% Debentures and 6.75%
Debentures.
Governing Law
Unless otherwise specified in the applicable Prospectus Supplement,
the Indenture for the Debt Securities and the Debt Securities will be governed
by New York law.
Description of Warrants
Except as otherwise set forth in the applicable Prospectus Supplement,
the Warrants will be issued in fully registered form under a Warrant Agreement
between the Company and the Warrant Agent named in the applicable Prospectus
Supplement (the "Warrant Agent"). The statements in this Prospectus relating to
the Warrants and the Warrant Agreement are summaries and do not purport to be
complete.
Each Warrant will entitle the registered owner (the "Warrantholder")
to purchase one share of Preferred Stock, one share of Common Stock, one
Depositary Share or a specified principal amount of Debt Securities, as set
forth in the applicable Prospectus Supplement, subject to the call provisions
referred to below, from the time the Warrants are separately transferable until
the date set forth in the accompanying Prospectus Supplement. The initial
exercise price of the Warrants and the date on which the Warrants become
separately transferable will be set forth in the applicable Prospectus
Supplement.
The Warrants can be exercised by surrendering to the Warrant Agent a
Warrant certificate signed by the Warrantholder or his, her or its duly
authorized agent indicating the Warrantholder's election to exercise all or a
portion of the Warrants evidenced by the certificate. Surrendered Warrant
certificates must be accompanied by a written election to purchase such Warrants
and payment of the aggregate exercise price of the Warrants to be exercised (the
"Warrant Price"), which payment may be made in the form of wire transfer or a
cashier's check equal to the exercise price or, if and to the extent set forth
in the applicable Prospectus Supplement, the surrender of Debt Securities in
denominations at least equal to the aggregate Warrant Prices or, if applicable,
any combination of cash and such denominations of Debt Securities.
Certificates evidencing duly exercised Warrants shall be delivered by
the Warrant Agent to the transfer agent or trustee for the applicable
Securities. Upon receipt thereof, the Company will be obligated to deliver or
cause to be delivered, to or upon the written order of the exercising
Warrantholders, certificates representing the number or principal amount of
Securities so purchased. If fewer than all of the Warrants evidenced by any
certificate are exercised, the
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<PAGE>
Warrant Agent will be obligated to deliver to the exercising Warrantholder a new
Warrant certificate representing the unexercised Warrants.
To the extent set forth in the applicable Prospectus Supplement, the
Warrant Price and the number of Securities purchasable upon the exercise of each
Warrant are subject to adjustment in certain events, including: (i) the issuance
of a stock dividend to holders of Securities (whichever the Warrants are
exercisable for) or a combination or subdivision of the Securities (whichever
the Warrants are exercisable for); (ii) the issuance of rights, warrants or
options or securities convertible into, or exchangeable for, the Securities
(whichever the Warrants are exercisable for), that are distributed to all
holders of the Company's outstanding Securities (whichever the Warrants are
exercisable for) entitling them to subscribe for or purchase such Securities;
and (iii) any distribution by the Company to the holders of its Securities
(whichever the Warrants are exercisable for) of evidences of indebtedness of the
Company or of assets (excluding, if and to the extent set forth in the
applicable Prospectus Supplement, certain cash dividends or distributions). To
the extent set forth in the applicable Prospectus Supplement, no adjustment in
the number of Securities purchasable upon exercise of the Warrants or in the
Warrant Price will be required until cumulative adjustments require an
adjustment of at least one percent thereof.
Notwithstanding the foregoing, unless the applicable Prospectus
Supplement states to the contrary, in case of any merger or consolidation or
sale, transfer, lease or conveyance of all or substantially all of the assets
of the Company and its subsidiaries, including a consolidation or merger in
which the Company is the continuing corporation, the successor or assuming
entity shall succeed to and be substituted for the Company, with the same effect
as if it had been named in the Warrant Agreement and in the Warrant Certificates
as the Company.
Adjustments to the Warrant Price (and, possibly, adjustment to the
number of Securities purchasable upon the exercise of each Warrant), or the
failure to make such adjustments, may in certain circumstances result in
distributions that could be taxable as dividends under the Internal Revenue Code
of 1986, as amended, to holders of the Warrants or to holders of shares of
Securities issued upon exercise thereof. The Company will reserve the right (but
will not be obligated) to make such adjustments to the Warrant Price or in the
number of Securities purchasable upon the exercise of each Warrant, in addition
to those required in the foregoing provisions, as it shall determine to be
advisable in order that certain stock-related distributions which may hereafter
be made by the Company to its stockholders after the date of the applicable
Prospectus Supplement shall not be taxable to them.
If all or any portion of the Warrants are callable at the option of
the Company, the call provisions, including the call price and the date through
which the Warrants may be exercised, will be set forth in the applicable
Prospectus Supplement. If upon expiration the unexercised Warrants will convert
into Securities, the manner and rate of such conversion will be set forth in the
applicable Prospectus Supplement.
Holders of Warrants are not entitled, by virtue of being holders, to
receive dividends or to consent or to receive notice as stockholders in respect
of any meeting of stockholders for the election of directors of the Company or
any other matter, to vote at any such meeting or to exercise any rights
whatsoever as stockholders of the Company. The Warrant Agreement and the
Warrants will provide that no director, officer, employee or shareholder of the
Company, as such, will have any liability under the Warrants or the Warrant
Agreement. The Warrant Agreement and the Warrants will also each provide that
each holder of the Warrants, by accepting the Warrants, waives and releases all
such liability.
Unless otherwise specified in the applicable Prospectus Supplement,
the Warrant Agreement and the Warrants will be governed by New York law.
Description of Stock Purchase Contracts
and Stock Purchase Units
Unless otherwise specified in the applicable Prospectus Supplement,
the Company may issue Stock Purchase Contracts, including contracts obligating
holders to purchase from the Company, and the Company to sell to the holders, a
specified number of shares of Common Stock or Preferred Stock at a future date
or dates. The consideration per share of Common Stock or Preferred Stock may be
fixed at the time the Stock Purchase Contracts are issued or may be determined
by a specific reference to a formula set forth in the Stock Purchase Contracts.
The Stock Purchase Contracts may be issued separately or as part of Units
("Stock Purchase Units") consisting of a Stock Purchase Contract and Debt
-14-
<PAGE>
Securities, Preferred Securities or debt obligations of third parties, including
U.S. Treasury securities, securing the holders' obligations to purchase the
Common Stock or the Preferred Stock under the Stock Purchase Contracts. The
Stock Purchase Contracts may require the Company to make periodic payments to
the holders of the Stock Purchase Units or vice versa, and such payments may be
unsecured or prefunded on some basis. The Stock Purchase Contracts may require
holders to secure their obligations thereunder in a specified manner.
Pledged Securities and Pledge Agreement. The securities related to
the Stock Purchase Contracts (collectively, the "Pledged Securities") will be
pledged to a collateral agent (the "Collateral Agent"), for the benefit of the
Company, pursuant to the Pledge Agreement to secure the obligations of holders
of Stock Purchase Contracts to purchase Common Stock or Preferred Stock under
the related Stock Purchase Contracts. The rights of holders of Stock Purchase
Contracts to the related Pledged Securities will be subject to the Company's
security interest therein created by the Pledge Agreement. No holder of Stock
Purchase Contracts will be permitted to withdraw the Pledged Securities related
to such Stock Purchase Contracts from the pledge arrangement except upon the
termination or Early Settlement of the related Stock Purchase Contracts.
Subject to such security interest and the terms of the Purchase Contract
Agreement and the Pledge Agreement, each holder of a Stock Purchase Contract
will retain full beneficial ownership of the related Pledged Securities.
Except as described in the applicable Prospectus Supplement, the
Collateral Agent will, upon receipt of distributions on the Pledged Securities,
distribute such payments to the Company or the Purchase Contract Agent, as
provided in the Pledge Agreement. The Purchase Contract Agent will in turn
distribute payments it receives as provided in the Purchase Contract Agreement.
The applicable Prospectus Supplement will describe the terms of any
Stock Purchase Contracts or Stock Purchase Units. The description in the
Prospectus Supplement will not necessarily be complete and will be qualified in
its entirety by reference to the Stock Purchase Contracts, and, if applicable,
collateral arrangements and depositary arrangements, relating to such Stock
Purchase Contracts or Stock Purchase Units.
Description of Global Securities
Unless otherwise specified in the applicable Prospectus Supplement,
Securities other than Common Stock will be issued in the form of one or more
book-entry certificates (collectively, with respect to each series or issue of
Securities, the "Global Securities") registered in the name of a depositary or a
nominee or a depositary. Unless otherwise specified in the applicable
Prospectus Supplement, the depositary will be The Depository Trust Company
("DTC"). The Company has been informed by DTC that its nominee will be Cede &
Co. ("Cede"). Accordingly, Cede is expected to be the initial registered holder
of all Securities that are issued in book-entry form. No person that acquires a
beneficial interest in such Securities will be entitled to receive a certificate
representing such person's interest in the Securities except as set forth herein
or in the applicable Prospectus Supplement. Unless and until definitive
Securities are issued under the limited circumstances described below, all
references to actions by holders of Securities issued in book-entry form shall
refer to actions taken by DTC upon instruction from its Participants (as defined
below), and all references herein to payments and notices to holders shall refer
to payments and notices to DTC or Cede, as the registered holder of such
Securities.
DTC has informed the Company that it is a limited purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing company" within the meaning of the New York Uniform
Commercial Code and a "clearing agency" registered pursuant to Section 17A of
the Exchange Act, and that it was created to hold securities for its
participating organizations ("Participants") and to facilitate the clearance and
settlement of securities transactions among Participants through electronic
book-entry, thereby eliminating the need for physical movement of certificates.
Participants include securities brokers and dealers, banks, trust companies and
clearing corporations, and may include certain other organizations. Indirect
access to the DTC system also is available to others such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a Participant, either directly or indirectly ("Indirect
Participants").
Persons that are not Participants or Indirect Participants but
desire to purchase, sell or otherwise transfer ownership of, or other interests
in, Securities may do so only through Participants and Indirect Participants.
Under a
-15-
<PAGE>
book-entry format, Holders may experience some delay in their receipt of
payments, as such payments will be forwarded by the agent designated by the
Company to Cede, as nominee for DTC. DTC will forward such payments to its
Participants, which thereafter will forward them to Indirect Participants or
Holders. Holders will not be recognized by the applicable registrar, transfer
agent, Trustee, Depositary or Warrant Agent as registered holders of the
Securities entitled to the benefits of the Certificate or the applicable
Indenture, Deposit Agreement or Warrant Agreement. Beneficial owners that are
not Participants will be permitted to exercise their rights as such only
indirectly through and subject to the procedures of Participants and, if
applicable, Indirect Participants.
Under the rules, regulations and procedures creating and affecting DTC
and its operations as currently in effect (the "Rules"), DTC will be required to
make book-entry transfers of Securities among Participants and to receive and
transmit payments to Participants. Participants and Indirect Participants with
which beneficial owners of Securities have accounts with respect to the
Securities similarly are required by the Rules to make book-entry transfers and
receive and transmit such payments on behalf of their respective account
holders.
Because DTC can act only on behalf of Participants, who in turn act
only on behalf of Participants or Indirect Participants, and on behalf of
certain banks, trust companies and other persons approved by it, the ability of
a beneficial owner of Securities issued in book-entry form to pledge such
Securities to persons or entities that do not participate in the DTC system, or
to otherwise act with respect to such Securities, may be limited due to the
unavailability of physical certificates for such Securities.
DTC has advised the Company that DTC will take any action permitted to
be taken by a registered holder of any Securities under the Charter or the
applicable indenture, Deposit Agreement or Warrant Agreement only at the
direction of one or more Participants to whose accounts with DTC such Securities
are credited.
Unless otherwise specified in the applicable Prospectus Supplement, a
Global Security will be exchangeable for the relevant definitive Securities
registered in the names of persons other than DTC or its nominee only if (i) DTC
notifies the Company that it is unwilling or unable to continue as depository
for such Global Security or if at any time DTC ceases to be a clearing agency
registered under the Exchange Act at a time when DTC is required to be so
registered in order to act as such depository and the Company does not appoint a
successor within 90 days, (ii) the Company executes and delivers to the
applicable registrar, transfer agent, Trustee, Depositary and/or Warrant Agent
an order complying with the requirements of the Charter or the applicable
Indenture, Deposit Agreement and/or Warrant Agreement that such Global Security
shall be so exchangeable or (iii) there has occurred and is continuing a default
in the payment of any amount due in respect of the Securities or, in the case of
Debt Securities, an Event of Default or an event that, with the giving of notice
or lapse of time, or both, would constitute an Event of Default with respect to
such Debt Securities. Any Global Security that is exchangeable pursuant to the
preceding sentence will be exchangeable for Securities registered in such names
as DTC directs.
Upon the occurrence of any event described in the immediately
preceding paragraph, DTC is generally required to notify all Participants of the
availability through DTC of definitive Securities. Upon surrender by DTC of the
Global Security representing the Securities and delivery of instructions for re-
registration, the registrar, transfer agent, Trustee, Depositary or Warrant
Agent, as the case may be, will reissue the Securities as definitive Securities,
and thereafter such persons will recognize the holders of such definitive
Securities as registered holders of Securities entitled to the benefits of the
Certificate or the applicable Indenture, Deposit Agreement and/or Warrant
Agreement.
Except as described above a Global Security may not be transferred
except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or
another nominee of DTC or to a successor depositary appointed by the Company.
Except as described above, DTC may not sell, assign, transfer or otherwise
convey any beneficial interest in a Global Security evidencing all or part of
any Securities unless such beneficial interest is in an amount equal to an
authorized denomination for such Securities.
None of the Company, the Trustees, any registrar and transfer agent,
any Warrant Agent or any Depositary, or any agent of any of them, will have any
responsibility or liability for any aspect of DTC's or any Participant's records
relating to, or for payments made on account of, beneficial interests in a
Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
-16-
<PAGE>
Plan of Distribution
The Company may sell the Securities to or through one or more
underwriters or dealers or may sell the Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale of
the Securities will be named in the applicable Prospectus Supplement. The
Company may sell Securities directly to investors on its own behalf in those
jurisdictions where it is authorized to do so.
Underwriters may offer and sell the Securities at a fixed price or
prices, which may be changed, at market prices prevailing at the time of sale,
at prices related to such prevailing market prices or at negotiated prices. The
Company also may, from time to time, authorize dealers or agents to offer and
sell the Securities upon such terms and conditions as may be set forth in the
applicable Prospectus Supplement. In connection with the sale of the Securities,
underwriters may receive compensation from the Company in the form of
underwriting discounts or commissions and may also receive commissions from
purchasers of the Securities for whom they may act as agent. Underwriters may
sell the Securities to or through dealers, and such dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters or commissions from the purchasers for which they may act as
agents.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of the Securities, and any discounts or
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions. Underwriters, dealers and agents may be entitled,
under agreements entered into with the Company, to indemnification against and
contribution toward certain civil liabilities, including liabilities under the
Securities Act.
The Common Stock is listed on the New York Stock Exchange under the
symbol "MTC." The Depositary Shares, Debt Securities, the Preferred Stock and
the Warrants will be new issues of securities with no established trading
market. Any underwriters or agents to or through which Securities are sold by
the Company may make a market in such Securities, but such underwriters or
agents will not be obligated to do so and any of them may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of or trading market for any Depositary Shares, Debt Securities, Preferred Stock
or Warrants.
Legal Matters
The validity of the Common Stock, Preferred Stock, Depositary Shares,
Debt Securities, Common Stock Warrants, Preferred Stock Warrants, Debt
Warrants, Depositary Share Warrants and Stock Purchase Contracts covered by this
Prospectus will be passed upon for the Company by Winston & Strawn, Chicago,
Illinois. The validity of the Securities offered by this Prospectus may be
passed on for any underwriters or agents by counsel named in the Prospectus
Supplement.
Experts
The consolidated financial statements of Monsanto at December 31, 1997
and 1996 and for each of the three years in the period ending December 31, 1997
incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1997 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated
herein by reference. Such statements are incorporated herein by reference in
reliance upon such report given upon the authority of Deloitte & Touche LLP as
experts in accounting and auditing.
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<PAGE>
No dealer, salesperson or other individual has been authorized to give any
information or to make any representation other than those contained or
incorporated by reference in this Prospectus in connection with the offer made
by this Prospectus and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company or the
Underwriters. Neither the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstance, create any implication that there has
been no change in the affairs of the Company since the date as of which
information is given in this Prospectus. This Prospectus does not constitute
an offer or solicitation by anyone in any jurisdiction in which such offer or
solicitation is not authorized or in which the person making such offer or
solicitation is not qualified to do so or to anyone to whom it is unlawful to
make such offer or solicitation.
----------------------
TABLE OF CONTENTS
PAGE
Available Information...................................................... 2
Information Incorporated By Reference...................................... 2
The Company................................................................ 3
Use of Proceeds............................................................ 3
Ratio of Earnings to Fixed Charges......................................... 3
Description of Capital Stock............................................... 3
Description of Depositary Shares........................................... 6
Description of Debt Securities............................................. 8
Description of Warrants.................................................... 13
Description of Stock Purchase Contracts and Stock Purchase Units........... 14
Description of Global Securities........................................... 15
Plan of Distribution....................................................... 17
Legal Matters.............................................................. 17
Experts.................................................................... 17
$2,000,000,000
MONSANTO COMPANY
Common Stock, Preferred Stock, Depositary Shares, Debt Securities,
Common Stock Warrants, Preferred Stock Warrants, Debt Warrants,
Depositary Share Warrants and Stock Purchase Contracts
---------------------
P R O S P E C T U S
---------------------
May 6, 1998
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses payable by the
Company, except any underwriters' fees and expenses, in connection with the sale
of the Securities being registered hereby. All of the amounts shown are
estimated, except the SEC registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee.......... $ 590,000
NASD filing fee............... 30,500
Printing expenses............. 125,000
Trustee's fees and expenses... 18,000
Legal fees and expenses....... 175,000
Accounting fees and expenses.. 100,000
Miscellaneous expenses
(including listing, rating
agency, depositary and warrant
agent fees)................... 1,000,000
==========
Total......................... $2,038,500
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware permits
indemnification of directors, officers, employees and agents of corporations
under certain conditions and subject to certain limitations. Section 59 of the
Company's By-Laws provides for indemnification of any director, officer,
employee or agent of the Company, or any person serving in the same capacity in
any other enterprise at the request of the Company, under certain circumstances.
Article IX of the Company's Restated Certificate of Incorporation eliminates the
liability of directors of the Company under certain circumstances for breaches
of fiduciary duty to the Company and its shareholders.
It is anticipated that in any underwriting agreements, the underwriter(s)
named therein will agree to indemnify the Company, its directors and certain of
its officers against certain civil liabilities, including civil liabilities
under the Securities Act of 1933, as amended (the "Securities Act").
The Company maintains directors' and officers' liability insurance
coverage.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The following documents are filed herewith or incorporated herein by
reference.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
1 Form of Underwriting Agreement (for debt securities)
4.1 Restated Certificate of Incorporation of the Company as of October 28,
1997 (incorporated herein by reference to Exhibit 3(i) of the
Company's Form 10-Q for the quarter ended September 30, 1997)
4.2 By-Laws of the Company, as amended effective September 26, 1997
(incorporated herein by reference to Exhibit 3(ii) of the Company's
10-Q for the quarter ended September 30, 1997)
4.3 Rights Agreement, dated as of January 26, 1990 between the Company and
First Chicago Trust Company as successor to the First National Bank of
Boston (incorporated herein by reference to the Company's Form 8-A
filed on January 31, 1990)
4.4 Form of Indenture dated as of [______], 1998 between the Company and
The Chase Manhattan Bank as Trustee, providing for Issuance of Senior
Debt Securities in Series
4.5 Form of Indenture dated as of [______], 1998 between the Company and
[________] as Trustee, providing for Issuance of Subordinated Debt
Securities in Series
4.6 Form of Deposit Agreement dated as of [_______], 1998 between the
Company, [__________] and the Holders from Time to Time of the
Depositary Shares Described Therein
4.7 Form of Certificate of Designations of the [___]% Series [___]
[Convertible] Preferred Stock (Par Value $.01 Per Share) of the
Company
4.8 Form of Warrant Agreement between the Company and [__________], as
Warrant Agent
4.9 Form of Purchase Contract Agreement between the Company and [_____],
as Purchase Contract Agent
4.10 Form of Pledge Agreement among the Company, [________], as Collateral
Agent and [__________], as Purchase Contract Agent
5 Opinion of Winston & Strawn
12 Computation of Ratios of Earnings to Fixed Charges (for last five
fiscal years)
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Winston & Strawn (included in Exhibit 5)
24 Powers of Attorney
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank relating to the
Senior Debt Indenture
II-2
<PAGE>
ITEM 17 UNDERTAKINGS
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, 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 (the "Securities Act");
(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 the undertakings set forth in paragraphs (i) and (ii)
above 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 Company pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in
this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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) That, for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to section 13(a) or
section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new Registration Statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the Securities
Act, 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 Rules 424(b)(l) or 497(h) under
the Securities Act shall be deemed to be part of this Registration Statement as
of the time it was declared effective.
(6) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the provisions described in Item 15 (other than the
provisions relating to insurance), or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(7) The undersigned Company hereby undertakes to file an application, if
necessary, for the purpose of determining the eligibility of any trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act (the "Act") in
accordance with the rules and regulations prescribed by the Commission under
Section 305(b)(2) of the Act.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Monsanto
Company certifies that it has reasonable grounds to believe that it meets all of
the requirements for filing this Registration Statement 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 St. Louis, State of
Missouri, on May 6, 1998.
MONSANTO COMPANY
By: /s/ Robert B. Hoffman
------------------------------------
Name: Robert B. Hoffman
Title: Vice Chairman
(Principal Financial Officer)
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------ ----------------------------- ------------------
<S> <C> <C>
* Chairman and Director May 6, 1998
- ------------------------ (Principal Executive Officer)
Robert B. Shapiro
/s/ Robert B. Hoffman Vice Chairman May 6, 1998
- ------------------------ (Principal Financial Officer)
Robert B. Hoffman
* Vice President and Controller May 6, 1998
- ------------------------ (Principal Accounting Officer)
Michael R. Hogan
* Director May 6, 1998
- ------------------------
Robert M. Heyssel
* Director May 6, 1998
- ------------------------
Michael Kantor
* Director May 6, 1998
- ------------------------
Gwendolyn S. King
</TABLE>
II-4
<PAGE>
<TABLE>
<S> <C> <C>
* Director May 6, 1998
- ------------------------
Philip Leder
* Director May 6, 1998
- ------------------------
Jacobus F. M. Peters
* Director May 6, 1998
- ------------------------
John S. Reed
* Director May 6, 1998
- ------------------------
John E. Robson
* Director May 6, 1998
- ------------------------
William D. Ruckelshaus
</TABLE>
*R. William Ide III, by signing his name hereto, does sign this document on
behalf of the above noted individuals, pursuant to powers of attorney duly
executed by such individuals which have been filed as an Exhibit to this
Registration Statement.
/s/ R. William Ide III
-----------------------------
R. William Ide III
Attorney-in-Fact
II-5
<PAGE>
EXHIBIT INDEX
The following documents are filed herewith or incorporated herein by
reference.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
1 Form of Underwriting Agreement (for debt securities)
2 Not Applicable
4.1 Restated Certificate of Incorporation of the Company as of October 28,
1997 (incorporated herein by reference to Exhibit 3(i) of the
Company's Form 10-Q for the quarter ended September 30, 1997)
4.2 By-Laws of the Company, as amended effective September 26, 1997
(incorporated herein by reference to Exhibit 3(ii) of the Company's
Form 10-Q for the quarter ended September 30, 1997)
4.3 Rights Agreement, dated as of January 26, 1990 between the Company and
First Chicago Trust Company as successor to the First National Bank of
Boston (incorporated herein by reference to the Company's Form 8-A
filed on January 31, 1990)
4.4 Form of Indenture dated as of [______], 1998 between the Company and
The Chase Manhattan Bank as Trustee, providing for Issuance of
Senior Debt Securities in Series
4.5 Form of Indenture dated as of [______], 1998 between the Company and
[________] as Trustee, providing for Issuance of Subordinated Debt
Securities in Series
4.6 Form of Deposit Agreement dated as of [_______], 1998 between the
Company, [__________] and the Holders from Time to Time of the
Depositary Shares Described Therein
4.7 Form of Certificate of Designations of the [___]% Series [___]
[Convertible] Preferred Stock (Par Value $.01 Per Share) of the
Company
4.8 Form of Warrant Agreement between the Company and [__________], as
Warrant Agent
4.9 Form of Purchase Contract Agreement between the Company and
[________], as Purchase Contract Agent
4.10 Form of Pledge Agreement among the Company, [___________], as
Collateral Agent and [________], as Purchase Contract Agent
5 Opinion of Winston & Strawn
8 Not Applicable
12 Computation of Ratios of Earnings to Fixed Charges (for last five
fiscal years)
15 Not Applicable
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Winston & Strawn (included in Exhibit 5)
24 Powers of Attorney
25 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank relating to the
Senior Debt Indenture
26 Not Applicable
27 Not Applicable
99 Not Applicable
<PAGE>
EXHIBIT 1
MONSANTO COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
----------------------
__________, 19___
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time Monsanto Company, a Delaware 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 (such firms constituting the "Underwriters"
with respect to such Pricing Agreement and the securities specified therein)
certain of its debt securities (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing Agreement, the "Designated
Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated 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 Designated Securities specified therein. Each
Pricing Agreement shall specify the aggregate principal amount of such
Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated
<PAGE>
Securities to be purchased by each Underwriter and shall set forth the date,
time and manner of delivery of such Designated Securities and payment therefor.
The Pricing Agreement shall also specify (to the extent not set forth in the
Indenture and the registration statement and prospectus with respect thereto)
the terms of such Designated 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 designed 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.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement in respect of the Securities has been
filed with the Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment thereto, each in
the form heretofore delivered or to be delivered to the Representatives
and, excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus contained therein, to
the Representatives for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) of the Securities
Act of 1933, as amended (the "Act"), which became effective upon filing, no
other document with respect to such registration statement or document
incorporated by reference therein has heretofore been filed or transmitted
for filing with the Commission; and no stop order suspending the
effectiveness of such registration statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act, being hereinafter called a
"Preliminary Prospectus"; the various parts of such registration statement,
any post-effective amendment thereto or the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the registration
statement at the time such part of the registration statement became
effective, but excluding Forms T-1, each as amended at the time such part
of the registration statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, being hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities, in the form in which
it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter
called the "Prospectus"; any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may
2
<PAGE>
be; any reference to an amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or the Prospectus, as the case may be; any reference
to any amendment to the Registration Statement shall be deemed to include
any annual report of the Company filed pursuant to Section 13(a) or 15(d)
of the Exchange Act after the effective date of the Registration Statement
that is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented in relation to the
applicable Designated Securities in the form in which it is filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section
5(a) hereof, including any documents incorporated by reference therein as
of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1933, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of
3
<PAGE>
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been any material
change in the capital stock (other than changes in treasury stock within
limits, or pursuant to employee plans, disclosed or incorporated by
reference in the Prospectus) or long-term debt of the Company and its
subsidiaries considered as a whole or any material adverse change, or any
development known to the Company involving a prospective material adverse
change, in or affecting the financial position, shareowners' equity or
results of operations of the Company and its subsidiaries considered as a
whole, 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 State of Delaware,
with power and authority to own its properties and conduct its business as
described in the 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 state of the United States except Rhode Island; and
G. D. Searle & Co. (Delaware) ("Searle"), Monsanto International Sales
Company, p.l.c. (Virgin Islands), Monsanto p.l.c. (England) and Monsanto
Europe S.A.N.V. (Belgium) (such corporations being referred to herein as
"Principal Subsidiaries") are each a corporation duly incorporated and
validly existing in good standing under the laws of its jurisdiction of
incorporation as set forth above;
(f) The Company has an authorized capitalization as set forth in the
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; and all of the issued equity securities of each Principal
Subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for shares necessary to
qualify directors or to maintain any minimum number of shareholders
required by law are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(g) The Securities have been duly authorized, and, when Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized by the Company and duly
qualified under the Trust Indenture Act and at each Time of Delivery for
such Designated Securities (as defined in Section 4 hereof), the Indenture
will constitute a valid and legally binding instrument of the Company,
enforceable in accordance with its terms except as the same may be limited
by bankruptcy, insolvency,
4
<PAGE>
reorganization or other laws relating to or affecting the enforcement of
creditors' rights; and the Indenture conforms, and the Designated
Securities will conform, to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such Designated
Securities;
(h) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, 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, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets of the
Company or any of its Principal Subsidiaries pursuant to the terms of, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Principal Subsidiaries is a
party or by which the Company or any of its Principal Subsidiaries is bound
or to which any of the property or assets of the Company or any of its
Principal Subsidiaries is subject, which would cause a current or
prospective material adverse change in or affecting the financial position,
shareowners' equity or results of operations of the Company and its
subsidiaries considered as a whole or affect the validity of the Securities
or the legal authority of the Company to comply with the Securities, the
Indenture, the Agreement or any Pricing Agreement; nor will such action
result in any violation of the provisions of the Certificate of
Incorporation, as amended, or the By-Laws of the Company, or in a violation
of any statute or any order, rule or regulation of any court or
governmental agency or body in the United States having jurisdiction over
the Company or any of its Principal Subsidiaries or any of their properties
which would cause current or prospective material adverse change in or
affecting the financial position, shareowners' equity or results of
operations of the Company and its subsidiaries considered as a whole or
affect the validity of the Securities or the legal authority of the Company
to comply with the Securities, the Indenture, this Agreement or any Pricing
Agreement (except to the extent that the issue and sale of the Securities
as contemplated by this Agreement and the distribution of the Securities by
the Underwriters may result in violations of state securities or Blue Sky
laws); and no consent, approval, authorization, order, registration or
qualification of or with any court or any such regulatory authority or
other governmental body in the United States having jurisdiction over the
Company is required for the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement or any Pricing Agreement or the Indenture, except such as have
been, or will have been prior to the Time of Delivery, obtained under the
Act and 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 as contemplated by this Agreement and any
Pricing Agreement and the distribution of the Securities by the
Underwriters;
(i) 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
5
<PAGE>
any of its subsidiaries is the subject, other than as set forth in the
Prospectus and other than those which in the aggregate will not have a
material adverse effect on the Company and its subsidiaries considered as a
whole; and, to the best of the Company's knowledge, no such proceedings are
contemplated by governmental authorities; and
(j) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its subsidiaries, are, to the best of the
Company's knowledge, independent public accountants as to the Company as
required by the Act and the rules and regulations of the Commission
thereunder.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in the form specified in the Pricing
Agreement, 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
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer or
certified or official bank check to the account specified by the Company by
written notice to the Representatives delivered at least forty-eight hours in
advance, all at the place and time and date specified in such Pricing Agreement
or at such other place and time and date as the Representatives and the Company
may agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to 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 Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statement or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities which
shall be reasonably disapproved by the Representatives for such Securities
promptly after reasonable notice thereof; to advise the Representatives
promptly of any such amendment or supplement after such Time of Delivery
and furnish the Representatives with copies thereof; to file promptly 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
6
<PAGE>
so long as the delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period to advise
the Representatives, promptly after it receives notice hereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed, or mailed for filing, of the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of the
qualification of such Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional information and, in
the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such United States
jurisdictions as the Representatives may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution
of such Securities, provided, that, in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction or to subject
itself to taxation for doing business in any jurisdiction, and provided
further that the expense of maintaining any such qualification more than
one year from the date of the Pricing Agreement relating to such Securities
shall be at the expense of the Representatives for such Securities;
(c) No later than the time agreed to by the Representatives, on the
New York business day next succeeding the date of the applicable Pricing
Agreement and from time to time, to furnish the Underwriters with copies of
the Prospectus as amended or supplemented in such quantities as the
Representatives may from time to time reasonably request, and, if the
delivery of a prospectus is required at any time prior to the expiration of
nine months after the date of the Pricing Agreement relating to the
Securities in connection with the offering or sale of such Securities and
if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made when such Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the
7
<PAGE>
Representatives and upon their request to file such document and to prepare
and furnish without charge to each Underwriter and to each other broker-
dealer participating with them in the distribution of such Securities as
many copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and if the
Representatives or any such other broker-dealer is required to deliver a
prospectus in connection with sales of any of such Securities at any time
nine months or more after the date of the Pricing Agreement relating to
such Securities, upon the request of the Representatives but at the expense
of the Underwriters or such other brokers, as the case may be, to prepare
and deliver to the Representatives or such other broker-dealer as many
copies as the Representatives may request of an amended Prospectus or
supplement to the Prospectus complying with Section 10 (a) (3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)),
an earning statement of the Company and its subsidiaries (which need not be
audited complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company Rule 158);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives or (ii) the
Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which mature more than one year after such Time of Delivery and which are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives; and
(f) If the Company elects to rely upon Rule 462(b), the Company shall
file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of the
Pricing Agreement relating to the Designated Securities, and the Company
shall at the time of filing either pay to the Commission the filing fee for
the Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act.
6. 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, and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
(except as otherwise expressly provided in
8
<PAGE>
Section 5(c) hereof) amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and any other broker-dealers
participating in the distribution of the Securities; (ii) the cost of printing
or producing any Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Blue Sky and 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 laws as provided in
Section 5(b) hereof, including the fees (not to exceed $18,000 per fiscal year
of the Company) and disbursements of counsel for the Underwriters in connection
with such qualifications and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of the Trustee and the fees and
disbursements of counsel for any Trustee in connection with any Indenture and
the Securities; and (viii) 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 8 and Section 11 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.
7. The obligations of the Underwriters of any Designated Securities
under the Pricing Agreement relating to such Designated Securities shall be
subject, in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct in all material respects, the condition that the
Company shall have performed in all material respects all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; if the Company has elected to rely upon Rule
462(b) under the Act, the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of the
applicable Pricing Agreement; no stop order suspending the effectiveness of
the Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of
the Commission shall have been complied with to the Representatives'
reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for
such
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Designated Securities, with respect to the incorporation of the Company,
the validity of the Indenture, the Designated Securities, the Registration
Statement, the Prospectus as amended or supplemented and other related
matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) General Counsel, or other counsel for the Company satisfactory to
the Representatives, shall have furnished to the Representatives such
counsel's written opinion, dated the Time of Delivery for such Designated
Securities, in form and substance satisfactory to the Representatives, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus as amended or
supplemented, 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 state of the United States except Rhode Island;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented 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;
(iii) Each of the Principal Subsidiaries is a corporation duly
incorporated and validly existing in good standing under the laws of
the jurisdiction of its incorporation;
(iv) The Company owns directly or indirectly through one or more
wholly-owned subsidiaries all of the issued and outstanding equity
securities of the Principal Subsidiaries (except as specified in
Section 2(f) of this Agreement), free and clear of liens,
encumbrances, equities and claims, and all such securities are validly
authorized, issued, fully paid and non-assessable, and neither the
Company nor any such subsidiary is subject to personal liability by
reason of being an owner thereof;
(v) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and
delivered by the Company;
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(vi) To the best of such counsel's knowledge, 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, other than as set forth in the
Prospectus and other than those which in the aggregate will not have a
material adverse effect on the Company and its subsidiaries considered
as a whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities;
(vii) The Designated Securities have been duly authorized by the
Company; assuming that the facsimile signatures of officers (specified
in such opinion) of the Company and the facsimile seal of the Company
have been imprinted on the Designated Securities and that the
Designated Securities have been duly authenticated by the Trustee
under the Indenture (which assumptions such counsel need not verify by
an inspection of the Designated Securities), the Designated Securities
have been duly executed, issued and delivered by the Company and
constitute valid and legally binding obligations of the Company
entitled to the benefits provided by the Indenture; and the Designated
Securities and the Indenture conform to the descriptions thereof in
the Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument of the Company enforceable in accordance with its terms
except as the same may be limited by bankruptcy, insolvency,
reorganization or other relating to or affecting the enforcement of
creditors' rights; the Indenture has been duly qualified under the
Trust Indenture Act; and no taxes or recording fees under Delaware,
Missouri or Federal law are required to be paid with respect to the
execution of the Indenture and the issuance of the Designated
Securities;
(ix) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to the Designated Securities and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute
or result in a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any of the property or assets
of the Company or any of its Principal
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Subsidiaries pursuant to the terms of, any indenture, mortgage, deed
of trust, loan agreement or other similar agreement or instrument
known to such counsel, after such reasonable investigation as such
counsel deems necessary, to which the Company or any of its Principal
Subsidiaries is a party or by which the Company or any of its
Principal Subsidiaries is bound or to which any of the property or
assets of the Company or any of its Principal Subsidiaries is subject
which would cause a current or prospective material adverse change in
or affecting the financial position, shareowners' equity or results of
operations of the Company and its subsidiaries considered as a whole
or affect the validity of the Designated Securities or the legal
authority of the Company to comply with the Designated Securities, the
Indenture, this Agreement or the Pricing Agreement; nor will such
actions result in a violation of the provisions of the Certificate of
Incorporation, as amended, or the By-laws of the Company, or in a
violation of any statute or any order, rule or regulation of any court
or governmental agency or body in the United States having
jurisdiction over the Company or any of its subsidiaries or any of
their properties which would cause a current or prospective material
adverse change in or affecting the financial position, shareowners'
equity or results of operations of the Company and its subsidiaries
considered as a whole or affect the validity of the Designated
Securities or the legal authority of the Company to comply with the
Designated Securities, the Indenture, this Agreement or the Pricing
Agreement (except to the extent that the issue and sale of the
Designated Securities as contemplated by this Agreement and the
Pricing Agreement and the distribution of the Designated Securities by
the Underwriters may result in violations of state securities or Blue
Sky laws); and no consent, approval, authorization, order,
registration or qualification of or with any court or any such
regulatory authority or other governmental body in the United States
having jurisdiction over the Company is required for the issue and
sale of the Designated Securities or the consummation of the Company
of the other transactions contemplated by this Agreement or the
Pricing Agreement or the Indenture, except such as have been obtained
under the Act and 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 Designated Securities by the
Underwriters;
(x) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial
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<PAGE>
statements and related schedules therein, as to which such counsel
need express no opinion), when they became effective or were filed
with the Commission, as the case may be, complied as to form in all
material respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and such counsel has no reason to believe that any of such
documents, when they became effective or were so filed, as the case
may be, contained in the case of a registration statement which became
effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(xi) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and other financial
data contained or incorporated by reference therein or omitted therein
as to which such counsel need express no opinion) appear on their face
to be appropriately responsive in all material respects with the
requirements of the Act and the Trust Indenture Act and the rules and
regulations thereunder; and the information included in the
Registration Statement in response to Item 10 (insofar as it relates
to such counsel) of Form S-3 is to the best of such counsel's
knowledge an accurate statement of the matter therein set forth and
fairly presents the information called for with respect to that matter
by the Act and the rules and regulations thereunder.
Such counsel may also state that he has not verified, and is not
passing upon and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Prospectus as amended or
supplemented, other than those mentioned in the last clause of
subparagraph (vii) above, but such counsel shall confirm that he or
she has, however, participated in reviews and discussions in
connection with the preparation of the Registration Statements, the
Prospectus and the Prospectus as amended or supplemented and any
further amendments and supplements thereto made by the Company
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<PAGE>
prior to the Time of Delivery, and that in the course of such reviews
and discussions no facts came to his or her attention which led him or
her to believe that the Registration Statement or the Prospectus on
the effective date of the Registration Statement, or the Prospectus as
amended or supplemented on the date of such amendment or supplement or
at and as of the Time of Delivery for the Designated Securities (in
each case, apart from the financial statements and other financial
data contained or incorporated by reference therein or omitted
therefrom and from any written information furnished to the Company by
any Underwriter of Designated Securities through the Representatives
expressly for use in the prospectus as amended or supplemented or any
omission therefrom) 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 such
counsel does not know of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated as reference to the
Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or
supplemented which are not filed or incorporated by reference or
described as required.
In rendering the foregoing opinion, such counsel may rely upon
opinions of local counsel (which may include counsel for the
Representatives) satisfactory in form and scope to counsel for the
Representatives.
(d) At the Time of Delivery for such Designated Securities, Deloitte &
Touche LLP shall have furnished to the Representatives a letter dated such
Time of Delivery, to the effect set forth in Annex 11 hereto, and as to
such other matters as the Representatives may reasonably request and in
form and substance satisfactory to the Representatives;
(e) Since the respective dates as of which information is given in the
Prospectus as amended or supplemented prior to the date of the Pricing
Agreement relating to the Designated Securities, there shall not have been
any material change in the capital stock (other than changes in treasury
stock within limits, or pursuant to employee plans, disclosed or
incorporated by reference in the Prospectus prior to the date of the
Pricing Agreement relating to the Designated Securities) or long-term debt
of the Company or any of its subsidiaries or any material change, or any
development involving a prospective material change, in or affecting the
financial position, shareowners' equity or results of operations of the
Company and its subsidiaries considered as a whole, otherwise than as set
forth or contemplated in the
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Prospectus as amended or supplemented prior to the date of the Pricing
Agreement relating to the Designated Securities, the effect of which is in
the reasonable judgment of the Representatives so material and adverse as
to make it impracticable or inadvisable to proceed with the public offering
or the delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as first amended or supplemented in
connection with the Designated Securities;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities no downgrading shall have occurred in the rating
accorded the Company's debt securities by any one of the following
statistical rating organizations: Standard & Poor's Corporation, Moody's
Investors Service, Inc. and Duff & Phelps;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following
events, the effect of which in each case, in the reasonable judgment of the
Representatives, is such as to make it impracticable for the Underwriters
to market the Designated Securities or enforce contracts for the sale of
the Designated Securities: (i) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of a
national emergency or war, (ii) a declaration of a banking moratorium by
either Federal or New York State authorities, (iii) a suspension or halt in
trading on the New York Stock Exchange in any securities of the Company
which adversely affects the marketing of the Designated Securities or (iv)
a suspension or limitation in trading in securities generally on the New
York Stock Exchange or the establishment of minimum prices on such
Exchange;
(h) If the Designated Securities are denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency, or if
the principal or interest of the Designated Securities is indexed to such
currency, currencies or composite currency, on or after the date of the
Pricing Agreement relating to such Designated Securities there shall not
have occurred any of the following events, the effect of which in each
case, in the reasonable judgment of the Representatives, is such as to make
it impracticable for the Underwriters to market the Designated Securities
or to enforce contracts for the sale of the Designated Securities; a
suspension or material limitation in foreign exchange trading in such
currency, currencies or composite currency by a major international bank; a
general moratorium on commercial banking activities in the country or
countries issuing such currency, currencies or composite currency; the
outbreak or escalation of hostilities involving the occurrence of any
material adverse change in the existing financial, political or economic
conditions of, or the declaration of war or a national emergency by, the
country or countries issuing such currency, currencies or composite
currency; or the imposition or proposal of exchange controls by any
governmental authority in the country or countries issuing such currency,
currencies or composite currency;
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(i) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy in all material respects of the
representations and warranties of the Company herein at and as of such Time
of Delivery and as to the performance by the Company in all material
respects of all of its obligations hereunder to be performed at or prior to
such Time of Delivery, and the Company also shall have furnished to the
Representatives a certificate of officers of the Company satisfactory to
the Representatives as to the matters set forth in subsection (a) of this
Section; and
(j) The Company shall have complied with the provisions of Section
5(c) hereof with respect to the furnishing of prospectuses on the New York
business day next succeeding the date of this Agreement.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any amendment or supplement
thereto, or arising 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 will reimburse
each Underwriter for any legal or other expenses reasonably incurred by
such Underwriter in connection with investigating or defending any such
action or claim; provided, however, that the Company shall 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 an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Securities, or any such amendment or supplement,
in reliance upon and in conformity with written information furnished to
the Company by any Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Securities; provided, further, that if any
Preliminary Prospectus, any preliminary prospectus supplement relating to
the Designated Securities, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the Designated Securities
contained any alleged untrue statement or allegedly omitted to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading and such statement or omission shall
have been corrected in a revised Preliminary Prospectus, preliminary
prospectus supplement relating to the Designated Securities, the
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Prospectus, the Prospectus as amended or supplemented, any other prospectus
relating to the Designated Securities or any amendment or supplement
thereto relating to the Designated Securities, the Company shall not be
liable to any Underwriter under this subsection (a) with respect to such
alleged untrue statement or alleged omission to the extent that any such
loss, claim, damage or liability of such Underwriter results from the fact
that such Underwriter sold Designated Securities to a person to whom there
was not sent or given, at or prior to the written confirmation of such
sale, a copy of a revised Preliminary Prospectus (excluding documents
incorporated by reference), preliminary prospectus supplement relating to
the Designated Securities (excluding documents incorporated by reference),
the Prospectus (excluding documents incorporated by reference), the
Prospectus as amended or supplemented (excluding documents incorporated by
reference), any other amended prospectus relating to the Designated
Securities (excluding documents incorporated by reference) or any amendment
or supplement thereto relating to the Designated Securities (excluding
documents incorporated by reference), as the case may be, containing a
correction of such alleged misstatement or omission, if the Company has
made available copies thereof to such Underwriter prior to the confirmation
of such sale; and provided, further, that the Company shall not be liable
to any Underwriter under this subsection (a) to the extent that any such
loss, claim, damage or liability of such Underwriter results from the use
by such Underwriter of the Prospectus as amended or supplemented (excluding
documents incorporated by reference) or the Prospectus as amended or
supplemented as it may be further amended or supplemented (excluding
documents incorporated by reference), as the case may be (i) otherwise than
in connection with an offer or sale of the Designated Securities or (ii) at
any time nine months or more after the time of issue of the Prospectus as
amended or supplemented unless the Company has prior to such use amended or
supplemented the Prospectus as amended or supplemented to comply with
Section 10(a)(3) of the Act if required pursuant to Section 5(c) hereof and
such Underwriter uses the Prospectus as amended or supplemented as so
further amended or supplemented.
Each Underwriter acknowledges that the indemnity agreement in this
subsection (a) does not extend to any liability which such Underwriter
might have under Section 5(b) of the Act by reason of the fact that such
Underwriter sold Designated Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus (excluding documents incorporated by reference), the
Prospectus as amended or supplemented (excluding documents incorporated by
reference), any other prospectus relating to the Designated Securities
(excluding documents incorporated by reference) or any amendment or
supplement relating thereto (excluding documents incorporated by
reference), as the case may be, if the Company has made available copies
thereof to such Underwriter.
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For purposes of this subsection (a) the Prospectus (excluding
documents incorporated by reference), the Prospectus as amended or
supplemented (excluding documents incorporated by reference), any other
prospectus relating to the Designated Securities (excluding documents
incorporated by reference) or any amendment or supplement relating thereto
(excluding documents incorporated by reference), shall not be deemed to
have been made available to an Underwriter until (x) such Underwriter has
received the same or (y) such time after the receipt thereof by the
Representatives as would permit the Representatives with reasonable
diligence to deliver the same to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
amendment 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities, or any
such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives expressly for use therein; and will reimburse the
Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof, and in the event
that such indemnified party shall not so notify the indemnifying party
within 30 days following receipt of any such notice by such indemnified
party, the indemnifying party shall have no further liability under such
subsection to such indemnified party unless such indemnifying party shall
have received other notice addressed and delivered in the manner provided
in the second paragraph of Section 12 hereof of the commencement of such
action; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall
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notify the indemnifying party of the commencement thereof as provided
above, the indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation.
(d) If the indemnification provided for in this Section 8 is
unavailable to 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,
in lieu of indemnifying such indemnified party, 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 Designated
Securities on the other from the offering of the Designated 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 Designated Securities on the other in
connection with the statements or omission which resulted in such losses,
claims, damages or liabilities (or actions 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 Underwriters 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 just
and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which
does not take account
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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 Designated Securities underwritten 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.
The obligations of the Underwriters of Designated Securities in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under
the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriters the Representatives do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have
the right to postpone the Time of Delivery for such Designated Securities
for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Company agrees
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to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in the opinion of the Representatives may
thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters by
the Representatives and the Company as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount
of the Designated Securities, then the Company shall have the right to
require each non-defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase under the
Pricing Agreement relating to such Designated Securities and, in addition,
to require each non-defaulting Underwriter to purchase its pro rata share
(based on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement) of the
Designated Securities of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Designated Securities of a defaulting Underwriter or Underwriters made
by the Representatives or the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of the
Designated Securities, as referred to in subsection (b) above, or if the
Company shall not exercise the right described in subsection (d) above to
require non-defaulting Underwriters to purchase Designated Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without liability
on the part of any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters as provided in
Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
21
<PAGE>
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company shall be delivered or sent by mail,
telex or facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any notice
to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor or assign by reason merely of
such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used
herein, "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
22
<PAGE>
16. This Agreement and each Pricing Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
MONSANTO COMPANY
By: __________________________
Name: ____________________
Title: ___________________
23
<PAGE>
ANNEX I
PRICING AGREEMENT
-----------------
Name(s) of Representative(s)
As Representatives of the several
Underwriters named in Schedule I hereto,
[Address]
, 199
Ladies and Gentlemen:
MONSANTO COMPANY, a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated __________________, 199__ (the "Underwriting Agreement"), 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 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 Section 12 of the Underwriting
Agreement and the address of the Representatives referred to in such Section 12
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.
<PAGE>
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 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 two 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, shall 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 the authority of the signers thereof.
Very truly yours,
MONSANTO COMPANY
By:
----------------------------------
Name:
Title:
Accepted as of the date hereof:
- --------------------------------------
([Name of Representative Partnership])
[Name of Representative
Corporation]
By:
-----------------------------------
Name:
Title:
On behalf of each of the Underwriters
-2-
<PAGE>
SCHEDULE I
Principal Amount of
Designated Securities
to be
Underwriter Purchased
----------- ---------------------
[Name(s) of Representative(s)]........................... $
[Names of other Underwriters]............................
--------
Total..................................... $
========
-3-
<PAGE>
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate Principal Amount:
$
Price to Public:
% of the principal amount of the Designated Securities, plus accrued
interest[, if any,] from to
[and accrued amortization[, if any,] from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued
interest from to [and accrued amortization[, if any,]
from to ]
Specified Funds for Payment of Purchase Price:
[wire transfer] [certified or official bank check]
Form of Designated Securities:
[Book-entry only form represented by one or more global securities
deposited with The Depository Trust Company or its designated custodian, to
be made available for checking by the Representatives at least twenty-four
hours prior to the Time of Delivery.]
Indenture:
Indenture, dated , 19 , between the Company and , as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions], accruing from_______.
-4-
<PAGE>
Interest Payment Dates:
[months and dates], commencing___________________________________.
Record Dates:
Denominations:
[Amount Payable Upon Acceleration (if other than principal amount)]
Redemption Provisions:
[No provisions for redemption]
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the
amount of [$ ] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before , %, and
if] redeemed during the 12-month period beginning ,
Redemption
Year Price
---- ----------
and thereafter at 100% of their principal amount, together in each case
with accrued interest to the redemption date.]
[on any interest payment date falling in or after , , at the election
of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
-5-
<PAGE>
Sinking Fund Provisions:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$ ] principal amount of Designated Securities on in
each of the years through at 100% of their principal amount plus
accrued interest] [, together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an additional [$ ]
principal amount of Designated Securities in the years through at 100% of
their principal amount plus accrued interest].
[If the Designated Securities are extendable debt Securities, insert--
Extendible Provisions:
The Designated Securities are repayable on , [insert date and years),
at the option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be %, and thereafter annual interest rate
will be adjusted on , and to a rate not less than % of the effective
annual interest rate on U.S. Treasury obligations with - year maturities
as of the [insert date 15 days prior to maturity date] prior to such [insert
maturity date].]
[If the Designated Securities are Floating Rate debt Securities,
insert--
Floating Rate Provisions
Initial annual interest rate will be % through
[and thereafter will be adjusted [monthly] [on each , , and
] [to an annual rate of % above the average rate for -year
[month] [securities] [certificates of deposit] issued by and [insert
names of banks].][and the annual interest rate [thereafter] [from through
] will be the interest yield equivalent of the weekly average per annum market
discount rate for -month Treasury bills plus % of Interest Differential
(the excess, if any, of (i) then current weekly average per annum secondary
market yield for -month certificates of deposit over (ii) then current
interest yield equivalent of the weekly average per annum market discount rate
for -month Treasury bills); [from and thereafter the rate will be the
then current interest yield equivalent plus % of Interest Differential].]
Defeasance Provisions:
Time of Delivery:
-6-
<PAGE>
Closing Location:
Names and Addresses of Representatives
Designated Representatives:
Address for Notices, etc.:
[Other Terms]:
-7-
<PAGE>
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, Deloitte & Touche
LLP shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect
to the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules examined by them and
included or incorporated by reference in the Registration Statement or the
Prospectus comply as to form in all material respects with the applicable
accounting requirements of the Act or the Exchange Act, as applicable, and
the related published rules and regulations thereunder and, if applicable,
they have made a review and issued a report in accordance with standards
established by the American Institute of Certified Public Accountants of
the consolidated interim financial statements, selected financial data, pro
forma financial information and/or condensed financial statements derived
from audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, if any, and copies
of any such report have been furnished to the Representatives;
(iii) On the basis of limited procedures, not constituting an audit
in accordance with generally accepted auditing standards, consisting of a
reading of the unaudited financial statements and other information
referred to below, a reading of the latest available interim consolidated
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Board of Directors and the Executive and Finance
Committees of the Board of Directors of the Company since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company responsible for
financial and accounting matters and such other inquiries and procedures as
may be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) the unaudited condensed consolidated statements of income,
financial position and cash flow included or incorporated by
reference in the Company's Quarterly Reports on Form 10-Q
incorporated by reference in the Prospectus do not comply as to form
in all material respects with the applicable accounting requirements
of the Exchange Act as it applies to Form 10-Q and the related
published rules and regulations thereunder or are not in conformity
with generally accepted accounting principles applied on a basis
substantially consistent with the basis for the audited consolidated
statements of income, financial position and cash flow included or
incorporated by reference in the Company's Annual Report on Form 10-K
for the most recent fiscal year;
-8-
<PAGE>
(B) any other unaudited income statement data and statement of
financial position items included in the Prospectus do not agree with
the corresponding items in the unaudited consolidated financial
statements from which such data and items were derived, and any such
unaudited data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in the audited
consolidated financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the most
recent fiscal year;
(C) the unaudited financial statements which were not included
in the Prospectus but from which were derived the unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and statement of financial position items
included in the Prospectus and referred to in Clause (B) were not
determined on a basis substantially consistent with the basis for the
audited financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma condensed consolidated financial
statements included or incorporated by reference in the Prospectus do
not comply as to form in all material respects with the applicable
accounting requirements of the Act and the published rules and
regulations thereunder or the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five calendar days
prior to the date of such letter, there have been any changes in the
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest statement of
financial position included or incorporated by reference in the
Prospectus) or any increase, excluding those changes due solely to
fluctuations in foreign currency exchange rates, in the consolidated
long-term debt or guaranteed obligations of the Company and its
subsidiaries or any decreases in consolidated net current assets or
net assets, in each case as compared with amounts shown in the latest
statement of consolidated financial position included or incorporated
by reference in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or as a result of any dispositions of assets which the
Prospectus specifically discloses have occurred or may occur, or, in
the case of consolidated long-term debt or guaranteed obligations,
consolidated net current assets or net assets, for changes decreases
or increases, as the case may be, which are less than $30,000,000, or
which are described in such letter; and
(iv) In addition to the audits referred to in their opinions included
or incorporated by reference in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to in
paragraph (iii) above, they have carried out certain
-9-
<PAGE>
specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain references
to the Company's historical annual ratios of earnings to fixed charges
specified by the Representatives which references are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus (excluding documents incorporated by reference),
or in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents incorporated by
reference in the Prospectus specified by the Representatives, and have
compared certain of the amounts, percentages and financial information
contained in such references with the accounting records of the Company and
its subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
deemed in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such letter and to the
Prospectus as amended or supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated Securities for
purposes of the letter delivered at the Time of Delivery for such Designated
Securities.
-10-
<PAGE>
EXHIBIT 4.4
================================================================================
MONSANTO COMPANY
TO
THE CHASE MANHATTAN BANK
as Trustee
__________
INDENTURE
Dated as of ____________, 199__
Providing for Issuance of Senior
Debt Securities in Series
================================================================================
<PAGE>
MONSANTO COMPANY
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
(S) 310(a) (1)..............................................................609
(a) (2)................................................................609
(a) (3).....................................................Not Applicable
(a) (4).....................................................Not Applicable
(b)...............................................................608, 610
(S) 311(a)..................................................................613
(b)....................................................................613
(S) 312(a)..........................................................701, 702(a)
(b).................................................................702(b)
(c).................................................................702(c)
(S) 313(a)...............................................................703(a)
(b).................................................................703(a)
(c).................................................................703(a)
(d).................................................................703(b)
(S) 314(a)..................................................................704
(a)(4)............................................................101, 704
(b).........................................................Not Applicable
(c)(1).................................................................102
(c)(2).................................................................102
(c)(3)......................................................Not Applicable
(d).........................................................Not Applicable
(e)....................................................................102
(S) 315(a)..................................................................601
(b)....................................................................602
(c)....................................................................601
(d)....................................................................601
(e)....................................................................514
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <C>
(S) 316(a)..................................................................101
(a)(1)(A).........................................................502, 512
(a)(1)(B)..............................................................513
(a)(2)......................................................Not Applicable
(b)....................................................................508
(c).................................................................104(c)
(S) 317(a)(1)...............................................................503
(a)(2).................................................................504
(b)...................................................................1003
(S) 318(a)..................................................................107
</TABLE>
- --------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
-ii-
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE ONE
Definitions and Other Provisions of General Application...................1
Section 101. Definitions................................................1
Section 102. Compliance Certificates and Opinions.......................8
Section 103. Form of Documents Delivered to Trustee.....................9
Section 104. Acts of Holders; Record Dates..............................9
Section 105. Notices, Etc., to Trustee and Company.....................10
Section 106. Notice to Holders; Waiver.................................11
Section 107. Conflict with Trust Indenture Act.........................11
Section 108. Effect of Headings and Table of Contents..................11
Section 109. Successors and Assigns....................................11
Section 110. Separability Clause.......................................11
Section 111. Benefits of Indenture.....................................12
Section 112. Governing Law.............................................12
Section 113. Legal Holidays............................................12
ARTICLE TWO
Security Forms...........................................................12
Section 201. Forms Generally...........................................12
Section 202. Form of Face of Security..................................13
Section 203. Form of Reverse of Security...............................15
Section 204. Additional Provisions Required in Book-Entry Security.....18
Section 205. Form of Trustee's Certificate of Authentication...........19
ARTICLE THREE
The Securities...........................................................19
Section 301. Amount Unlimited; Issuable in Series......................19
Section 302. Denominations.............................................22
Section 303. Execution, Authentication, Delivery and Dating............22
Section 304. Temporary Securities......................................24
Section 305. Registration, Registration of Transfer and Exchange.......25
Section 306. Mutilated, Destroyed, Lost and Stolen Securities..........26
Section 307. Payment of Interest; Interest Rights Preserved............27
Section 308. Persons Deemed Owners.....................................28
Section 309. Cancellation..............................................28
Section 310. Computation of Interest...................................29
Section 311. CUSIP Numbers.............................................29
</TABLE>
-iii-
<PAGE>
<TABLE>
<CAPTION>
ARTICLE FOUR
<S> <C>
Satisfaction and Discharge..................................................................29
Section 401. Satisfaction and Discharge of Indenture......................................29
Section 402. Application of Trust Money...................................................30
ARTICLE FIVE
Remedies....................................................................................31
Section 501. Events of Default............................................................31
Section 502. Acceleration of Maturity; Rescission and Annulment...........................32
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee..............33
Section 504. Trustee May File Proofs of Claim.............................................33
Section 505. Trustee May Enforce Claims Without Possession of Securities..................34
Section 506. Application of Money Collected...............................................34
Section 507. Limitation on Suits..........................................................35
Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest....35
Section 509. Restoration of Rights and Remedies...........................................35
Section 510. Rights and Remedies Cumulative...............................................36
Section 511. Delay or Omission Not Waiver.................................................36
Section 512. Control by Holders...........................................................36
Section 513. Waiver of Past Defaults......................................................37
Section 514. Undertaking for Costs........................................................37
ARTICLE SIX
The Trustee.................................................................................37
Section 601. Certain Duties and Responsibilities..........................................37
Section 602. Notice of Defaults...........................................................38
Section 603. Certain Rights of Trustee....................................................38
Section 604. Not Responsible for Recitals or Issuance of Securities.......................39
Section 605. May Hold Securities and Serve as Trustee Under Other Indentures..............39
Section 606. Money Held in Trust..........................................................39
Section 607. Compensation and Reimbursement...............................................39
Section 608. Disqualification; Conflicting Interests......................................40
Section 609. Corporate Trustee Required; Eligibility......................................41
Section 610. Resignation and Removal; Appointment of Successor............................41
Section 611. Acceptance of Appointment by Successor.......................................42
Section 612. Merger, Conversion, Consolidation or Succession to Business..................44
Section 613. Preferential Collection of Claims Against Company............................44
Section 614. Investment of Certain Payments Held by the Trustee...........................44
</TABLE>
-iv-
<PAGE>
<TABLE>
<S> <C> <C>
Section 615. Appointment of Authenticating Agent..............................44
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company..............................46
Section 701. Company to Furnish Trustee Names and Addresses of Holders........46
Section 702. Preservation of Information; Communications to Holders...........47
Section 703. Reports by Trustee...............................................47
Section 704. Reports by Company...............................................47
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease...........................48
Section 801. Company May Consolidate, Etc., Only on Certain Terms.............48
Section 802. Successor Substituted............................................48
Section 803. Officers' Certificate and Opinion of Counsel.....................48
ARTICLE NINE
Supplemental Indentures........................................................49
Section 901. Supplemental Indentures Without Consent of Holders...............49
Section 902. Supplemental Indentures with Consent of Holders..................50
Section 903. Execution of Supplemental Indentures.............................51
Section 904. Effect of Supplemental Indentures................................51
Section 905. Conformity with Trust Indenture Act..............................51
Section 906. Reference in Securities to Supplemental Indentures...............51
ARTICLE TEN
Covenants......................................................................52
Section 1001. Payment of Principal, Premium and Interest.......................52
Section 1002. Maintenance of Office or Agency..................................52
Section 1003. Money for Securities Payments to Be Held in Trust................52
Section 1004. Payment of Taxes and Other Claims................................54
Section 1005. Maintenance of Operating Properties..............................54
Section 1006. Corporate Existence..............................................54
Section 1007. Limitation upon Liens............................................55
Section 1008. Limitation upon Sales and Leasebacks.............................57
Section 1009. Waiver of Certain Covenants......................................58
Section 1010. Compliance Certificate...........................................58
</TABLE>
-v-
<PAGE>
<TABLE>
<S> <C> <C>
ARTICLE ELEVEN
Redemption of Securities........................................................................59
Section 1101. Applicability of Article..........................................................59
Section 1102. Election to Redeem: Notice to Trustee.............................................59
Section 1103. Selection by Trustee of Securities to Be Redeemed.................................59
Section 1104. Notice of Redemption..............................................................60
Section 1105. Deposit of Redemption Price.......................................................61
Section 1106. Securities Payable on Redemption Date.............................................61
Section 1107. Securities Redeemed in Part.......................................................61
ARTICLE TWELVE
Sinking Funds...................................................................................62
Section 1201. Applicability of Article..........................................................62
Section 1202. Satisfaction of Sinking Fund Payments with Securities.............................62
Section 1203. Redemption of Securities for Sinking Fund.........................................62
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance..............................................................63
Section 1301. Applicability of Article; Company's Option to Effect Defeasance or Covenant
Defeasance........................................................................63
Section 1302. Defeasance and Discharge..........................................................63
Section 1303. Covenant Defeasance...............................................................64
Section 1304. Conditions to Defeasance or Covenant Defeasance...................................64
Section 1305. Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions....................................................66
Section 1306. Reinstatement.....................................................................67
Section 1307. Qualifying Trustee................................................................67
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers, Directors and Employees......................67
Section 1401. Exemption from Individual Liability...............................................67
</TABLE>
- ---------------
NOTE: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
-vi-
<PAGE>
INDENTURE, dated as of _______________, 199__, between Monsanto
Company, a corporation duly organized and existing under the laws of the State
of Delaware (herein called the "Company"), having its principal office at 800
North Lindbergh Boulevard, St. Louis, Missouri 63167, and The Chase Manhattan
Bank, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior
unsubordinated unsecured debentures, notes or other evidences of indebtedness
(herein called the "Securities"), to be issued in one or more series as provided
in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation in the United States of
America; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
<PAGE>
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt," in respect of any Sale and Leaseback Transaction,
means, as of the time of determination, the total obligation (discounted to
present value at the rate per annum equal to the discount rate which would be
applicable to a capital lease obligation with like term in accordance with
generally accepted accounting principles) of the lessee for rental payments
(other than amounts required to be paid on account of property taxes,
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining portion of the
initial term of the lease included in such Sale and Leaseback Transaction.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 615 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in
Section 204 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or such nominee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution
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of this instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Financial Officer, a Vice Chairman
of the Board, a Vice Chairman or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Assets" means the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom all current liabilities (excluding any indebtedness for money borrowed
having a maturity of less than 12 months from the date of the most recent
consolidated balance sheet of the Company but which by its terms is renewable or
extendable beyond 12 months from such date at the option of the borrower) all as
set forth on the most recent consolidated balance sheet of the Company and
computed in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of original execution of this Indenture
is located at 450 West 33rd Street, New York, New York 10001, except that, with
respect to presentation of the Securities for payment or registration of
transfers or exchanges and the location of the register, such term means the
office or agency of the Trustee at which at any particular time its corporate
agency business shall be conducted.
"Debt" has the meaning specified in Section 1007.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 301, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934; and if at any time there is more than
one such Person, "Depositary" as used with respect to the Securities of any
series shall mean the Depositary with respect to the Securities of such series.
"Event of Default" has the meaning specified in Section 501.
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"Funded Debt" means all Debt having a maturity of more than 12 months
from the date as of which the determination is made or having a maturity of 12
months or less but by its terms being renewable or extendable beyond 12 months
from such date at the option of the borrower, but excluding any such Debt owed
to the Company or a Restricted Subsidiary.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the forms and terms of
particular series of Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer, a Vice Chairman of the Board, a Vice Chairman or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Operating Property" means any real property or equipment located
within the United States and used primarily for manufacturing by the Company or
any of its Subsidiaries that has a net book value (after deduction of
accumulated depreciation) in excess of 2.0% of Consolidated Net Assets, other
than any such real property or equipment (i) which is financed by obligations
issued by a State, Commonwealth, Territory or possession of the United States of
America, or any political subdivision or governmental authority of any of the
foregoing, or the District of Columbia
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or (ii) which, in the opinion of the Board of Directors of the Company, is not
of material importance to the total business conducted by the Company and its
Restricted Subsidiaries taken as a whole.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the Holders
of such Securities; provided, that if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to Section 1104 of this
Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1302 and
1303, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Thirteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calculations required
by Section 313 of the Trust Indenture Act, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner
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provided as contemplated by Section 301 on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
(iii) the principal amount of any Indexed Security that may be counted in making
such determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the principal face amount of such Indexed
Security at original issuance, unless otherwise provided with respect to such
Security pursuant to Section 301, and (iv) except for the purpose of making the
calculations required by Section 313 of the Trust Indenture Act, Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
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"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer, any senior
trust officer, any trust officer or assistant trust officer, or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Restricted Subsidiary" means any Subsidiary of the Company that owns
any Operating Property.
"Sale and Leaseback Transaction" means any arrangement with any bank,
insurance company or other lender or investor (other than the Company or another
Restricted Subsidiary) providing for the leasing by the Company or any
Restricted Subsidiary of any Operating Property (except a lease for a temporary
period not to exceed three years by the end of which it is intended that the use
of such Operating Property by the lessee will be discontinued), which was or is
owned or leased by the Company or a Restricted Subsidiary and which has been or
is to be sold or transferred, more than 120 days after the acquisition or the
completion of construction and commencement of full operation thereof, by the
Company or such Restricted Subsidiary to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
on the security of such Operating Property.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power for the
election of directors of such corporation (irrespective of whether or not at the
time stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned by the Company, or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions
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of this Indenture, and thereafter "Trustee" shall mean or include each Person
who is then a Trustee hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means any Subsidiary other than a Restricted
Subsidiary.
"U.S. Government Obligations" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein 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 each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or representations by
counsel or an opinion of counsel, unless such officer knows, or in the exercise
of reasonable care should know, that the certificate, representations or opinion
with respect to the matters upon which such officer's certificate or opinion is
based are erroneous. Any such certificate or representations of counsel or
opinion of counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate
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or affidavit shall also constitute sufficient proof of his authority. The fact
and date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The Company may fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any Person
in respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Global Trust
Services, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company, Attention: Treasurer.
Section 106. Notice to Holders; Waiver.
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Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, the Redemption Date, or at the Stated Maturity or
Maturity; provided, that no interest shall accrue for the intervening period.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by, or by action taken pursuant to, a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
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The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange on which the Securities may be listed, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202. Form of Face of Security.
[insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
MONSANTO COMPANY
----------------
No. $
----------- -------------
CUSIP No.
--------------------------
Monsanto Company, a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to _______, or registered assigns, the principal sum of
___________ Dollars on _________[if the Security is to bear interest prior to
Maturity, insert --, and to pay interest thereon from _____________ or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on _______ and ______ in each year, commencing
__________________________, at the rate of % per annum, until the principal
hereof is paid or made available for payment [if applicable, insert -- and (to
the extent that the payment of such interest shall be legally enforceable) at
the rate of % per annum on any overdue principal and premium and on any overdue
installment of interest]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the _______ or _______ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this
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Security shall bear interest at the rate of % per annum (to the extent that the
payment of such interest shall be legally enforceable), which shall accrue from
the date of such default in payment to the date payment of such principal has
been made or duly provided for. Interest on any overdue principal shall be
payable on demand. [Any such interest on any overdue principal that is not so
paid on demand shall bear interest at the rate of _______% per annum (to the
extent that the payment of such interest shall be legally enforceable), which
shall accrue from the date of such demand for payment to the date payment of
such interest has been made or duly provided for, and such interest shall also
be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in , in such coin or currency
of [the United States of America] as at the time of payment is legal tender for
payment of public and private debts [if applicable, insert -- ; provided,
however, that at the option of the Company payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by wire transfer to an account maintained by
the Person entitled thereto as specified in the Security Register, provided that
such Person shall have given the Trustee written wire instructions at least five
Business Days prior to the applicable Interest Payment Date.]
[If the Security is payable in a foreign currency, insert -- the
appropriate provision.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
MONSANTO COMPANY
By
------------------------------
Title:
Attest:
- ------------------------------
Title:
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<PAGE>
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of , 199__ (herein called the "Indenture"),
between the Company and The Chase Manhattan Bank, as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof[, limited in aggregate principal amount to $..........].
[If applicable, insert --The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, such 30
or 60 days, as the case may be, to be counted from the date notice is mailed,
[if applicable, insert --(1) _______ in any year commencing with the year _____
and ending with the year _____ through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2) at
any time [or after _____________,199__], as a whole or in part, at the election
of the Company,. [at Redemption Prices determined as follows:] at the following
Redemption Prices (expressed as percentages of the principal amount)[: If
redeemed [on or before________, ____%, and percentages of the principal
amount)]: If redeemed [on or before ________, _____%, and if redeemed] during
the 12-month period beginning __________ of the years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ______% of the principal amount,]
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates or Special Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, such 30
or 60 days, as the case may be, to be counted from the date notice is mailed,
(1) on __________in any year commencing with the year __________ and ending with
the year ______ through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [on
or after
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<PAGE>
___________________], as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the
table below: If redeemed during the 12-month period beginning of the years
indicated,
<TABLE>
<CAPTION>
Redemption Price
Redemption Price for Redemption
For Redemption Otherwise Than
Through Operation Through Operation
Year of the Sinking Fund of the Sinking Fund
- ---- ------------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to ________% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof, all
as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
_______________, redeem any Securities of this series as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than ______% per annum.]
[The sinking fund for this series provides for the redemption on
__________________ in each year beginning with the year ________ and ending with
the year _______of [not less than $___________________ ("mandatory sinking
fund") and not more than] $ aggregate principal amount of Securities of this
series. Securities of this series acquired or redeemed by the Company otherwise
than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made [in
the inverse order in which they become due].]
[If the Securities do not have a sinking fund, then insert -- the
Securities do not have the benefit of any sinking fund obligations.]
[If the Security is subject to redemption, insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If the Security is not subject to redemption, insert -- The
Securities of this series are not redeemable prior to Stated Maturity.]
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<PAGE>
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [and/or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
[If the Security is an Indexed Security, insert -- the appropriate
provision.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
adversely affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be adversely affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a
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<PAGE>
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $__________ [and any integral multiple
thereof]. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past, present or future, of
the Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes (subject to Section 307 of the Indenture), whether or
not this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of laws principles thereof.
Section 204. Additional Provisions Required in Book-Entry Security.
Any Book-Entry Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203 and in addition to any legend
required by the Depositary, bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary.
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<PAGE>
This Security is exchangeable for Securities registered in the name of a Person
other than the Depositary or its nominee only in the limited circumstances
described in the Indenture and may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary."
Section 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
------------
The Chase Manhattan Bank,
As Trustee
By
---------------------------
Authorized Officer
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the
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<PAGE>
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(4) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(5) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method of determination
thereof;
(6) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the method
by which such date or dates shall be determined, the Interest Payment Dates on
which any such interest shall be payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(7) the rights, if any, to defer payments of interest on any
Securities of the series by extending the interest payment period, and the
duration of such extensions;
(8) if other than the Corporate Trust Office of the Trustee, the
place or places where the principal of and any premium and interest on
Securities of the series shall be payable;
(9) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the series
shall be payable if other than the currency of the United States of America and
the manner of determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in Section
101;
(10) the period or periods within which, the price or prices at which,
the currency or currencies (including currency units) in which and the other
terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(11) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or those in
which the Securities are stated to be payable, the currency, currencies or
currency units in which payment of the principal of and any premium and interest
on Securities of such series as to which such election is made shall be payable,
and the periods within which and the other terms and conditions upon which such
election is to be made;
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<PAGE>
(12) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(13) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods (or the methods of
determination of such a period or periods) within which, the price or prices at
which and the other terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(14) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference to an
index, formula or other method, the index, formula or other method by which such
amounts shall be determined;
(15) if the amount Outstanding of an Indexed Security for purposes of
the definition of "Outstanding" is to be other than the principal face amount at
original issuance, the method of determination of such amount;
(16) if either or both of Section 1302 or 1303 does not apply to the
Securities of any series;
(17) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Book-Entry Securities and, in such case, the
Depositary with respect to such Book-Entry Security or Securities and the
circumstances under which any Book-Entry Security may be registered for transfer
or exchange, or authenticated and delivered, in the name of a Person other than
such Depositary or its nominee, if other than as set forth in Section 305;
(18) any additional, modified or different covenants or Events of
Default applicable to one or more particular series of Securities; and
(19) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above 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, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an
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<PAGE>
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth, or providing the manner
for determining, the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver or make available for
delivery such Securities; provided, however, that in the case of Securities of a
series that are not to be originally issued at one time, the Trustee shall
authenticate and deliver or make available for delivery such Securities from
time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. If the form or forms or terms of the Securities of
the series have been established in or pursuant to one or more Board Resolutions
as permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form or forms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 201, that such form or
forms have been established in conformity with the provisions of this Indenture;
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<PAGE>
(b) if the terms of such Securities have been, or in the case of
Securities of a series that are not to be originally issued at one time, will be
established by or pursuant to Board Resolution as permitted by Section 301, that
such terms have been, or in the case of Securities of a series that are not to
be originally issued at one time, will be established in conformity with the
provisions of this Indenture, subject, in the case of Securities of a series
that are not to be originally issued at one time, to any conditions specified in
such Opinion of Counsel; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; provided, that such Opinion of Counsel need
express no opinion as to whether a court in the United States would render a
money judgment in currency other than that of the United States.
If such form or forms or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which the Trustee determines would expose it to personal liability.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Book-Entry Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such series, authenticate and deliver or make available for delivery one or more
Securities in such form that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Book-Entry Security or Securities, (ii)
shall be registered in the name of the Depositary for such Book-Entry Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear the legend set forth in Section 204.
Unless otherwise established pursuant to Section 301, each Depositary
designated pursuant to Section 301 for a Book-Entry Security must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange
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<PAGE>
Act of 1934 and any other applicable statute or regulation. The Trustee shall
have no responsibility to determine if the Depositary is so registered. Each
Depositary shall enter into an agreement with the Trustee governing the
respective duties and rights of such Depositary and the Trustee with regard to
Book-Entry Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer thereof,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver or make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver or make available for delivery in
exchange therefor one or more definitive Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series and tenor.
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<PAGE>
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Notwithstanding anything herein to the contrary, there shall be only
one Security Register with respect to each series of Securities.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver or make available for delivery, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver or make available for delivery, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Security Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
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<PAGE>
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 305 for Securities registered in the names
of Persons other than the Depositary for such Security or its nominee only if
(i) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Book-Entry Security or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended and the Company does not appoint a successor
Depositary within 90 days after receipt by it of such notice or after it becomes
aware of such cessation, (ii) the Company executes and delivers to the Trustee a
Company Order that such Book-Entry Security shall be so exchangeable or (iii)
there shall have occurred and be continuing an Event of Default with respect to
the Securities. Any Book-Entry Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such names
as such Depositary shall direct.
Notwithstanding any other provision in this Indenture, unless and
until it is exchanged in whole or in part for Securities that are not in the
form of a Book-Entry Security, a Book-Entry Security may not be transferred or
exchanged except as a whole by the Depositary with respect to such Book-Entry
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary.
None of the Company, the Trustee, 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 in a Book-Entry Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver or make available
for delivery in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency maintained for such purpose pursuant
to Section 1002; provided, however, that at the option of the Company, interest
on Securities of any series that bear interest may be paid (i) by check mailed
to the address of the Person entitled thereto as it shall appear on the Security
Register or (ii) by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register; provided, that such
Person shall have given the Trustee written wire instructions at least five
Business Days prior to the applicable Interest Payment Date.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and
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the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at his
address as it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities of
such series (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered and any Securities
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surrendered directly to the Trustee for any such purpose shall be promptly
canceled by the Trustee and such cancellation shall be noted conspicuously on
each such Security. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of as directed by a Company Order or after 90 days, if
not in receipt of such Company Order, shall be disposed of in accordance with
the Trustee's customary procedures.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 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 311. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer, exchange or replacement of such Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Securities, when
(1) either
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(A) all such Securities theretofore authenticated and delivered (other
than (i) such Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) such Securities
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation (i) have become due and payable, or (ii) will become due and
payable at their Stated Maturity within one year, or (iii) are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of (B)(i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount in the currency or currencies or currency
unit or units in which such Securities are payable sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered
to the Trustee for cancellation, for principal and any premium and interest to
the date of such deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and to any
Authenticating Agent under Section 615 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402, Article Six and the last paragraph
of Section 1003 shall survive.
Section 402. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
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ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body, unless
it is inapplicable to a particular series or is specifically deleted or modified
in the Board Resolution (or action taken pursuant thereto), Officers'
Certificate or supplemental indenture under which such series of Securities is
issued or has been modified in an indenture supplemental hereto):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series, and continuance of such default
for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture with respect to Securities of that
series (other than a covenant or warranty 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 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount
of the Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
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(6) the commencement by the Company of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default described in
clause 5 or 6 of Section 501) with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or, in the case of Original Issue Discount Securities or Indexed
Securities, such specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay (A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series
which have become due otherwise than by such declaration of acceleration and any
interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate or rates prescribed therefor in such Securities, and (D)
all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel; and
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(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default described in clause 5 or 6 of Section 501
occurs, the Outstanding Securities shall ipso facto become immediately due and
payable without need of any declaration or other act on the part of the Trustee
or any Holder.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by
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intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments directly to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and may be a member of a
creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
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Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee before or during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such
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case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306 and as otherwise provided in Section 507, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
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Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including counsel fees and expenses, against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an assessment in any
suit instituted by the Company, the Trustee or the Holders of 10% in aggregate
principal amount of the Outstanding Securities of any series.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
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Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall, within 90 days, give the Holders of Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document (whether in its
original or facsimile form) believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities and Serve as Trustee Under Other Indentures.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Subject to the provisions of Section 608, the Trustee may become and
act as trustee under other indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
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(1) to pay to the Trustee from time to time such reasonable
compensation as shall be agreed in writing between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, willful misconduct or bad
faith; and
(3) to indemnify each of the Trustee, or any predecessor Trustee, for,
and to hold it harmless against, any and all loss, liability, damage, claim or
expense incurred without negligence or willful misconduct on its part, arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities upon all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series, the indenture dated as of August 1, 1990
between the Company and The Chase Manhattan Bank (National Association)
(predecessor by merger to the Trustee) and the indenture dated as of November 1,
1991 among the Company, as Guarantor, Monsanto Defined Contribution and Employee
Stock Ownership Trust and The Chase Manhattan Bank (National Association)
(predecessor by merger to the Trustee).
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Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of any federal or state supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by any
such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public
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officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such
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retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; provided, however, that to the extent that such
property and money is not held by the Trustee in trust for the benefit of the
Holders of particular Securities, such retiring Trustee shall transfer and
deliver to such successor Trustee such property and money upon payment of its
charges hereunder.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
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Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Investment of Certain Payments Held by the Trustee.
Any amounts held by the Trustee hereunder, other than pursuant to
Article Thirteen hereof, shall be invested by the Trustee from time to time at
the direction of the Company in such investments as may be specified by the
Company and reasonably agreed to by the Trustee from time to time; provided,
that in investing trust funds pursuant to the terms of this Section and
liquidating any investments held in trust hereunder, the Trustee may, to the
extent permitted by law, purchase securities (including for the purposes of this
paragraph securities as to which the Trustee or a Trustee Affiliate (as defined
below) is the issuer or guarantor) from, and sell securities to, itself or any
Trustee Affiliate and purchase securities underwritten by, or in which a market
is made by, the Trustee or a Trustee Affiliate. For the purposes hereof, a
"Trustee Affiliate" shall mean an entity that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Trustee. Any income or gain realized as a result of any such
investment shall be promptly distributed (in no event later than the next
Business Day) to the Company after any intended amounts have been paid to the
Holders entitled thereto, except after the occurrence and during the continuance
of an Event of Default. The Trustee shall have no liability to the Company for
any loss resulting from any investment made in accordance with this Section, and
shall bear no expense in connection with any investment pursuant to this
Section. Any such investment may be sold (without regard to maturity date) by
the Trustee whenever necessary to make any distribution required by this
Indenture. Nothing herein shall require the Trustee to invest funds held by it
pursuant to the last paragraph of Section 1003.
Section 615. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate
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Securities of such series issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
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If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:
--------------
The Chase Manhattan Bank, As Trustee
By
-----------------------------------
As Authenticating Agent
By
-----------------------------------
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee (a)
semi-annually, not later than ________ and _________ in each year, a list, in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders as of the preceding _______ or _________, as the case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list in similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
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Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each May 15 following the date of the first issuance of
Securities hereunder deliver to Holders a brief report, dated as of such May 15,
which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
promptly will notify the Trustee when any Securities are listed on any stock
exchange or delisted therefrom.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided, that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance, transfer or lease the
properties and assets of the Company substantially as an entirety shall be a
corporation, partnership or trust organized and validly existing under the laws
of the United States of America, any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on all
the Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
This Section shall not apply to any merger or consolidation in which
the Company is the surviving corporation.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease 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
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
Section 803. Officers' Certificate and Opinion of Counsel.
The Trustee, subject to the provisions of Sections 601 and 603, shall
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, conveyance, transfer or lease, and
any such assumption, complies with the provisions of this Article before the
Trustee shall execute any supplemental indenture required pursuant to this
Article.
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ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and
with or without interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form or in the form of Book-Entry Securities; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration
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of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) if allowed, without penalty under applicable laws and regulations,
to permit payment in the United States (including any of the States thereof and
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction of principal, premium, if any, or interest, if any,
on Securities in bearer form or coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein or
to make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (10) other
than with respect to a defective provision, shall not adversely affect the
interests of the Holders of Securities of any series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or adversely
affect the right of the Holder of any Security to require the Company to
repurchase such Securities, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1009, except to increase any percentage set forth in such Sections or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each
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Outstanding Security affected thereby; provided, however, that this clause shall
not be deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section and
Section 1009, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to
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conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of the series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Trustee is hereby initially appointed Paying Agent, and the
Corporate Trust Office of the Trustee is initially designated as the office or
agency for the foregoing purposes. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the
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Persons entitled thereto a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit with
a Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest 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 (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest 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.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or received
by the Trustee in respect of obligations deposited with the Trustee pursuant to
Article Thirteen, or then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium, if any) or
interest has become due and payable shall be paid to the Company on Company
Request (unless otherwise required by mandatory provisions of applicable escheat
or abandoned or unclaimed property law), 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
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payment thereof (unless the Company has remitted required moneys or property to
the appropriate governmental authority under any applicable escheat or abandoned
or unclaimed property laws, or has otherwise been discharged under such laws or
laws of similar applicability, in which case such Holder shall look solely to
its remedies (if any) under such laws and not to the Company), and all liability
of the Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published on
each Business Day and of general circulation in the City of New York, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 1004. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or any Operating Property of the Company
or any Restricted Subsidiary, and (2) all lawful claims for labor materials and
supplies which, if unpaid, might by law become a lien upon any Operating
Property of the Company or any Restricted Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim (a) whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings or (b) which is not of material importance to the business,
operations, financial condition or results of operations of the Company and its
Restricted Subsidiaries taken as a whole.
Section 1005. Maintenance of Operating Properties.
The Company will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements to the Operating Properties, as in
the judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company or any
Restricted Subsidiary from discontinuing the operation and maintenance of any of
such Operating Properties or from omitting to make any repairs, renewals,
replacements, betterments or improvements thereof if such discontinuance or
omission is in the judgement of the Company, desirable in the conduct of the
business of the Company and its Restricted Subsidiaries taken as a whole.
Section 1006. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or
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franchise if the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company.
Section 1007. Limitation upon Liens.
The Company will not itself, and will not permit any Restricted
Subsidiary to, create, incur, issue, assume, guarantee or secure any notes,
bonds, debentures or other similar evidences of indebtedness for money borrowed
(notes, bonds, debentures or other similar evidences of indebtedness for money
borrowed being hereinafter in this Section and Section 1008 called "Debt"),
secured by any pledge of, or mortgage, lien, encumbrance or security interest on
(such pledges, mortgages, liens, encumbrances and security interests being
hereinafter in this Section, in Section 801 and in Section 1008 collectively
called "Liens"), any Operating Property owned or leased by the Company or any
Restricted Subsidiary, or on any shares of stock or Debt of any Restricted
Subsidiary owned or held by the Company or any other Restricted Subsidiary,
without effectively providing that the Securities (together with, if the Company
shall so determine, any other Debt of the Company or such Restricted Subsidiary
then existing or thereafter created which is not subordinate to the Securities)
shall be secured equally and ratably with (or prior to) such secured Debt (for
the purpose of providing such equal and ratable security, the principal amount
of any Securities shall mean the aggregate principal amount of such Securities
which are Outstanding and shall not be less than that principal amount which
could be declared to be due and payable pursuant to Section 502 on the date of
the making of such effective provision, and the extent of such equal and ratable
security shall be adjusted, to the extent permitted by law, as and when said
principal amount changes over time pursuant to Section 502 and any other
provision hereof), so long as such secured Debt shall be so secured, unless,
after giving effect thereto, the aggregate principal amount of all such secured
Debt then outstanding plus Attributable Debt of the Company and its Restricted
Subsidiaries in respect of Sale and Leaseback Transactions entered into after
the date of this Indenture (other than Sale and Leaseback Transactions permitted
by Section 1008(b)) would not exceed an amount equal to 10% of Consolidated Net
Assets; provided, however, that nothing contained in this Section shall prevent,
restrict or apply to, and there shall be excluded from secured Debt in any
computation under this Section, Debt secured by:
(a) Liens on any property or assets of the Company or any Restricted
Subsidiary or on any shares of stock or Debt existing as of the date of
this Indenture;
(b) Liens on all property or assets of, or on any shares of stock or
Debt of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(c) Liens on any property or assets or shares of stock or Debt
existing at the time of acquisition thereof (including acquisition through
merger or consolidation) or securing the payment of all or any part of the
purchase price or construction cost thereof or securing any Debt incurred
prior to, at the time of or within 120 days after the acquisition of such
property or assets or shares of stock or Debt or the completion of any such
construction, whichever is later, for the purpose of financing all or any
part of the purchase price or construction cost
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thereof (provided such Liens are limited to such shares of stock or Debt,
property or assets, improvements thereon and the land upon which such
property, assets and improvements are located and any other property or
assets not then constituting an Operating Property);
(d) Liens on any property or assets to secure all or any, part of the
cost of development, operation, construction, alteration, repair or
improvement of all or any part of such property, or assets, or to secure
Debt incurred prior to, at the time of or within 120 days after the
completion of such development, operation, construction, alteration, repair
or improvement, whichever is later, for the purpose of financing all or any
part of such cost (provided such Liens are limited to such property or
assets, improvements thereon and the land upon which such property, assets
and improvements are located and any other property or assets not then
constituting an Operating Property);
(e) Liens which secure Debt owing to the Company or another Restricted
Subsidiary by a Restricted Subsidiary;
(f) (i) Liens arising from the assignment of moneys due and to become
due under contracts between the Company or any Restricted Subsidiary and
the United States of America, any State, Territory, or possession thereof
or any agency, department, instrumentality or political subdivision of any,
thereof, (ii) Liens in favor of the United States of America, any State,
Commonwealth, Territory or possession thereof or any agency, department,
instrumentality or political subdivision of any thereof, pursuant to the
provisions of any contract not directly or indirectly in connection with
securing Debt or (iii) Liens arising in connection with obligations issued
by a State, Commonwealth, Territory or possession of the United States of
America, or any political subdivision or governmental authority of any of
the foregoing, or the District of Columbia;
(g) any deposit or pledge as security for the performance of any bid,
tender, contract, lease or undertaking not directly or indirectly in
connection with the securing of Debt; any deposit or pledge with any
governmental agency required or permitted to qualify the Company or any
Restricted Subsidiary to conduct business, to maintain self-insurance or to
obtain the benefits of any law pertaining to workmen's compensation,
unemployment insurance, old age pensions, social security or similar
matters, or to obtain any stay or discharge in any legal or administrative
proceedings; deposits or pledges to obtain the release of mechanics',
workmen's, repairmen's, materialmen's or warehousemen's liens or the
release of property in the possession of a common carrier; any security
interest created in connection with the sale, discount or guarantee of
notes, chattel mortgages, leases, accounts receivable, trade acceptances or
other paper, or contingent repurchase obligations, arising out of sales of
merchandise in the ordinary course of business; liens permitted by Section
1004; or other deposits or pledges similar to those referred to in this
subdivision (g);
(h) Liens arising by reason of any judgment, decree or order of any
court or other governmental authority, so long as any appropriate legal
proceedings which may have been
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initiated for the review of such judgment, decree or order shall not have
been finally terminated or so long as the period within which such
proceedings may be initiated shall not have expired; and
(i) any extension, renewal, substitution or replacement (or successive
extensions, renewals, substitutions or replacements), as a whole or in
part, of any of the Liens referred to in subdivisions (a) through (h) above
or the Debt secured thereby; provided that (1) such extension, renewal,
substitution or replacement Lien shall be limited to all or any part of the
same property or assets, shares of stock or Debt that secured the Lien
extended, renewed, substituted or replaced (plus improvements on such
property and any other property or assets not then constituting an
Operating Property) and (2) in the case of subdivisions (a) through (c)
above, the Debt secured by such Lien at such time is not increased.
Debt created by the Company or any Restricted Subsidiary shall not be
cumulated with a guarantee of the same Debt by the Company, or any other
Restricted Subsidiary for the same financial obligation.
SECTION 1008. Limitation upon Sales and Leasebacks.
The Company will not itself, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction after the date of
this Indenture, unless either:
(a) the Attributable Debt of the Company and its Restricted
Subsidiaries in respect of such Sale and Leaseback Transaction and all
other Sale and Leaseback Transactions entered into after the date of this
Indenture (other than Sale and Leaseback Transactions permitted by Section
1008(b)), plus the aggregate principal amount of Debt secured by Liens on
Operating Properties then outstanding (excluding any such Debt secured by
Liens covered in subdivisions (a) through (i) of the first paragraph of
Section 1007) without equally and ratably securing the Securities, would
not exceed 10% of Consolidated Net Assets, or
(b) the Company applies, within 120 days after the sale or transfer,
an amount equal to the fair market value of the Operating Property so sold
and leased back at the time of entering into such Sale and Leaseback
Transaction (as determined by any two of the following: the Chairman or
Vice Chairman of the Board, the President, any Vice Chairman, any Vice
President, the Treasurer and the Controller of the Company) to (i) the
purchase of any asset or any interest in an asset which would qualify,
after purchase, as an Operating Property or (ii) the retirement of Funded
Debt (including Securities of any series constituting Funded Debt) of the
Company (and any redemption of Securities of any series pursuant to this
provision shall, if provided in the terms of such particular series of
Securities, not be prohibited pursuant to any redemption provision of such
series otherwise prohibiting redemption when such would constitute a
refunding operation or anticipated refunding
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operation or similar refunding operation); provided, that the amount to be
applied to the retirement of Funded Debt of the Company shall be reduced by
(i) the principal amount of Securities delivered within 120 days after such
sale or transfer to the Trustee for redemption and cancellation, and (ii)
the principal amount of Funded Debt, other than Securities, voluntarily
retired by the Company within 120 days after such sale. For purposes of
clauses (i) and (ii) of the foregoing proviso, the principal amount of any
Securities shall mean the aggregate principal amount of such Securities
which are Outstanding and shall not be less than that principal amount
which could be declared to be due and payable pursuant to Section 502 at
the time of determination. Notwithstanding the foregoing, no retirement
referred to in this subdivision (b) may be effected by payment at maturity
or pursuant to any mandatory sinking fund payment or any mandatory
prepayment provision.
Notwithstanding the foregoing, where the Company or any Restricted
Subsidiary is the lessee in any Sale and Leaseback Transaction, Attributable
Debt shall not include any Debt resulting from the guarantee by the Company or
any other Restricted Subsidiary of the lessee's obligation thereunder.
SECTION 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004 to 1008, inclusive, with
respect to the Securities of any series if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
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.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive compliance with any
covenant or condition hereunder. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any such compliance, whether or not such Holders remain
Holders after such record date.
SECTION 1010. Compliance Certificate.
The Company will furnish to the Trustee on or before May 1 in each
year (beginning the first May 1 after the date of original issuance of
Securities hereunder) a brief certificate (which need not comply with Section
102) from the principal executive, financial or accounting officer of the
Company stating that in the course of the performance by the signer of his or
her duties as an officer of the Company he or she would normally have knowledge
of any default or non-compliance by the Company in the performance of any
covenants or conditions contained in this Indenture, stating whether or not he
or she has knowledge
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of any such default or non-compliance and, if so, specifying each such default
or non-compliance of which the signer has knowledge and the nature thereof. For
purposes of this Section 1010, non-compliance or default shall be determined
without regard to any grace period or requirement of notice provided pursuant to
the terms of this Indenture.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable in whole or in part
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
Section 1102. Election to Redeem: Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution or Officers' Certificate. In
case of any redemption at the election of the Company of the Securities of any
series, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities (a)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture or (b) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all of the Securities
of such series and of a specified tenor are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) in the case of partial redemption of any Securities, the principal
amounts of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, or portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
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Section 1105. Deposit of Redemption Price.
On or prior to the Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver or make available for delivery to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a Book-
Entry Security is so surrendered, such new Security so issued shall be a new
Book-Entry Security.
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ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. 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 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and stating the basis for such credit and that such
Securities have not been previously so credited and will also deliver to the
Trustee any Securities to be so delivered. 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
1103 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner
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provided in Section 1104. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 1106 and 1107.
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.
Unless, pursuant to Section 301, provision is made that either or both
of (a) defeasance of the Securities of a series under Section 1302 or (b)
covenant defeasance of the Securities of a series under Section 1303 shall not
apply to the Securities of a series, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
Thirteen, with such modifications thereto as may be specified pursuant to
Section 301 with respect to any Securities, shall be applicable to the
Securities of such series, and the Company may at its option by Board
Resolution, at any time, with respect to the Securities of such series, elect to
have either Section 1302 (if applicable) or Section 1303 (if applicable) applied
to the Outstanding Securities of such series upon compliance with the conditions
set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option to have this Section applied
to any series of Securities, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of such series
on and after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series which shall thereafter
be deemed to be "Outstanding" only for the purposes of the Sections of this
Indenture referred to in clauses (A) and (B) of this Section, and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of such series to
receive, solely from the trust fund described in Section 1304 as more fully set
forth in such Section, payments of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003 and such obligations as shall be ancillary thereto, (C) the rights, powers,
trusts, duties, immunities and other provisions in respect of the Trustee
hereunder and (D) this Article Thirteen. Subject to compliance with this Article
Thirteen, the Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under Section 1303 with respect
to the Securities of such series. Following a defeasance, payment of such
Securities may not be accelerated because of an Event of Default.
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<PAGE>
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this
Section applied to any series of Securities, the Company shall be released from
its obligations under Sections 801, 1007 and 1008 (and any covenant made
applicable to such Securities pursuant to Section 301) and the occurrence of an
event specified in Section 501(4) (with respect to any of Section 801, 1007 or
1008 or any such covenant) (and any other Event of Default applicable to such
Securities that are determined pursuant to Section 301 to be subject to this
provision) shall not be deemed to be an Event of Default with respect to the
Outstanding Securities of such series on and after the date the conditions set
forth below are satisfied (hereinafter, "covenant defeasance"), and such
Securities shall thereafter be deemed not to be "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 801, 1007 and 1008 (and
any other covenant made applicable to such Security pursuant to Section 301) and
any such Events of Default, but shall continue to be deemed "Outstanding" for
all other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to the Outstanding Securities of such series, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant
whether directly or indirectly by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of any reference in any
such Section or such other covenant to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby. Notwithstanding the defeasance by the Company of its
obligations under Section 801, any successor shall be required to assume the
Company's obligations under Section 607 as a condition to such succession.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent to application of
either Section 1302 or Section 1303 to the Outstanding Securities of or within
such series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 609 who shall agree to comply with the provisions of this Article
Thirteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (A) money in an amount (in
such currency, currencies or currency units in which such Securities are then
specified as payable at Maturity), or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (C) a combination thereof in an
amount, sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Maturity of such principal,
premium, if any, or interest and (ii) any mandatory sinking fund payments
applicable
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<PAGE>
to such Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities. Before such a
deposit the Company may make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in accordance with Article
Eleven, which shall be given effect in applying the foregoing. For this
purpose, "U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such 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 U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depositary receipt.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing (A) on the date of such deposit or
(B) insofar as subsections 501(5) and (6) are concerned, at any time during the
period ending on the 91st day after the date of such deposit or, if longer,
ending on the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest as
defined in Section 608 or for purposes of the Trust Indenture Act with respect
to any Securities of the Company or (B) result in the trust arising from such
deposit to constitute, unless it is qualified as, a regulated investment company
under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(5) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (y) since the date of this Indenture there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of
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<PAGE>
such defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(6) In the case of an election under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1302 or
the covenant defeasance under Section 1303 (as the case may be) have been
complied with.
Section 1305. Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (collectively, for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1304 which in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
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<PAGE>
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment or any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Thirteen until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1305; provided,
however, that if the Company makes any payment of principal of (and premium, if
any) or interest on any such Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
Section 1307. Qualifying Trustee.
Any trustee appointed pursuant to Section 1304 for the purpose of
holding trust funds deposited pursuant to that Section shall be appointed under
an agreement in form acceptable to the Trustee and shall provide to the Trustee
a certificate of such trustee, upon which certificate the Trustee shall be
entitled to conclusively rely, that all conditions precedent provided for herein
to the related defeasance or covenant defeasance have been complied with. In no
event shall the Trustee be liable for any acts or omissions of said trustee.
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 1401. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer,
director, or employee, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers,
directors, or employees, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer, director, or employee,
as such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in
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<PAGE>
this Indenture or in any of the Securities or implied therefrom, are hereby
expressly waived and released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of such Securities.
*****
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
MONSANTO COMPANY
By:
-------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
-------------------------
Name:
Title:
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<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On ___________, 199_, before me, ____________, Notary Public,
personally appeared __________________, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity and that by his/her
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
- --------------------------------------
Notary Public
-70-
<PAGE>
STATE OF _____________)
) ss.:
COUNTY OF ____________)
On the _____ day of _________, 199_, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he/she is _____________ of _______________________________, one of the companies
described in and which executed the foregoing instrument; that it was so affixed
by authority of the Board of Directors of said corporation, and that he/she
signed his/her name thereto by like authority of the Board of Directors of said
corporation.
- --------------------------------
Notary Public
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<PAGE>
EXHIBIT 4.5
================================================================================
MONSANTO COMPANY
TO
[NAME OF TRUSTEE]
as Trustee
__________
INDENTURE
Dated as of ________, 199__
Providing for Issuance of Subordinated
Debt Securities in Series
================================================================================
<PAGE>
MONSANTO COMPANY
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
(S) 310(a)(1)................................................................609
(a)(2)................................................................609
(a)(3).....................................................Not Applicable
(a)(4).....................................................Not Applicable
(b)..............................................................608, 610
(S) 311(a)...................................................................613
(b)...................................................................613
(S) 312(a)...................................................................701
702(a)
(b)................................................................702(b)
(c)................................................................702(c)
(S) 313(a)................................................................703(a)
(b)................................................................703(a)
(c)................................................................703(a)
(d)................................................................703(b)
(S) 314(a)...................................................................704
(a)(4)...........................................................101, 704
(b)........................................................Not Applicable
(c)(1)................................................................102
(c)(2)................................................................102
(c)(3).....................................................Not Applicable
(d)........................................................Not Applicable
(e)...................................................................102
(S) 315(a)...................................................................601
(b)...................................................................602
(c)...................................................................601
(d)...................................................................601
(e)...................................................................514
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(S) 316(a)...................................................................101
(a)(1)(A)........................................................502, 512
(a)(1)(B).............................................................513
(a)(2).....................................................Not Applicable
(b)...................................................................508
(c)................................................................104(c)
(S) 317(a)(1)................................................................503
(a)(2)................................................................504
(b)..................................................................1003
(S) 318(a)...................................................................107
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
Definitions and Other Provisions of General Application................ 1
Section 101. Definitions............................................. 1
Section 102. Compliance Certificates and Opinions.................... 8
Section 103. Form of Documents Delivered to Trustee.................. 9
Section 104. Acts of Holders; Record Dates........................... 9
Section 105. Notices, Etc., to Trustee and Company................... 10
Section 106. Notice to Holders; Waiver............................... 11
Section 107. Conflict with Trust Indenture Act....................... 11
Section 108. Effect of Headings and Table of Contents................ 11
Section 109. Successors and Assigns.................................. 11
Section 110. Separability Clause..................................... 11
Section 111. Benefits of Indenture................................... 12
Section 112. Governing Law........................................... 12
Section 113. Legal Holidays.......................................... 12
ARTICLE TWO
Security Forms......................................................... 12
Section 201. Forms Generally......................................... 12
Section 202. Form of Face of Security................................ 13
Section 203. Form of Reverse of Security............................. 15
Section 204. Additional Provisions Required in Book-Entry Security... 20
Section 205. Form of Trustee's Certificate of Authentication......... 20
ARTICLE THREE
The Securities......................................................... 20
Section 301. Amount Unlimited; Issuable in Series.................... 20
Section 302. Denominations........................................... 23
Section 303. Execution, Authentication, Delivery and Dating.......... 23
Section 304. Temporary Securities.................................... 25
Section 305. Registration, Registration of Transfer and Exchange..... 26
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........ 27
Section 307. Payment of Interest; Interest Rights Preserved.......... 28
Section 308. Persons Deemed Owners................................... 29
Section 309. Cancellation............................................ 30
Section 310. Computation of Interest................................. 30
Section 311. CUSIP Numbers........................................... 30
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ARTICLE FOUR
Satisfaction and Discharge............................................. 31
Section 401. Satisfaction and Discharge of Indenture................. 31
Section 402. Application of Trust Money.............................. 32
ARTICLE FIVE
Remedies............................................................... 32
Section 501. Events of Default....................................... 32
Section 502. Acceleration of Maturity; Rescission and Annulment...... 33
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.............................................. 34
Section 504. Trustee May File Proofs of Claim........................ 35
Section 505. Trustee May Enforce Claims Without Possession of
Securities.............................................. 35
Section 506. Application of Money Collected.......................... 36
Section 507. Limitation on Suits..................................... 36
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.................................... 37
Section 509. Restoration of Rights and Remedies...................... 37
Section 510. Rights and Remedies Cumulative.......................... 37
Section 511. Delay or Omission Not Waiver............................ 37
Section 512. Control by Holders...................................... 38
Section 513. Waiver of Past Defaults................................. 38
Section 514. Undertaking for Costs................................... 38
ARTICLE SIX
The Trustee............................................................ 39
Section 601. Certain Duties and Responsibilities..................... 39
Section 602. Notice of Defaults...................................... 39
Section 603. Certain Rights of Trustee............................... 39
Section 604. Not Responsible for Recitals or Issuance of Securities.. 40
Section 605. May Hold Securities and Serve as Trustee Under Other
Indentures.............................................. 40
Section 606. Money Held in Trust..................................... 41
Section 607. Compensation and Reimbursement.......................... 41
Section 608. Disqualification; Conflicting Interests................. 42
Section 609. Corporate Trustee Required; Eligibility................. 42
Section 610. Resignation and Removal; Appointment of Successor....... 42
Section 611. Acceptance of Appointment by Successor.................. 44
Section 612. Merger, Conversion, Consolidation or Succession to
Business................................................ 45
Section 613. Preferential Collection of Claims Against Company....... 45
Section 614. Investment of Certain Payments Held by the Trustee...... 45
Section 615. Appointment of Authenticating Agent..................... 46
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<PAGE>
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company...................... 47
Section 701. Company to Furnish Trustee Names and Addresses of
Holders................................................. 47
Section 702. Preservation of Information; Communications to Holders.. 48
Section 703. Reports by Trustee...................................... 48
Section 704. Reports by Company...................................... 48
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease................... 49
Section 801. Company May Consolidate, Etc., Only on Certain Terms.... 49
Section 802. Successor Substituted................................... 49
Section 803. Officers' Certificate and Opinion of Counsel............ 50
ARTICLE NINE
Supplemental Indentures................................................ 50
Section 901. Supplemental Indentures Without Consent of Holders...... 50
Section 902. Supplemental Indentures with Consent of Holders......... 51
Section 903. Execution of Supplemental Indentures.................... 52
Section 904. Effect of Supplemental Indentures....................... 52
Section 905. Conformity with Trust Indenture Act..................... 52
Section 906. Reference in Securities to Supplemental Indentures...... 53
ARTICLE TEN
Covenants.............................................................. 53
Section 1001. Payment of Principal, Premium and Interest.............. 53
Section 1002. Maintenance of Office or Agency......................... 53
Section 1003. Money for Securities Payments to Be Held in Trust....... 54
Section 1004. Payment of Taxes and Other Claims....................... 55
Section 1005. Maintenance of Operating Properties..................... 55
Section 1006. Corporate Existence..................................... 56
Section 1007. Waiver of Certain Covenants............................. 56
Section 1008. Compliance Certificate.................................. 56
ARTICLE ELEVEN
Redemption of Securities............................................... 56
Section 1101. Applicability of Article................................ 56
Section 1102. Election to Redeem: Notice to Trustee................... 57
Section 1103. Selection by Trustee of Securities to Be Redeemed....... 57
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Section 1104. Notice of Redemption.................................... 58
Section 1105. Deposit of Redemption Price............................. 58
Section 1106. Securities Payable on Redemption Date................... 59
Section 1107. Securities Redeemed in Part............................. 59
ARTICLE TWELVE
Sinking Funds.......................................................... 59
Section 1201. Applicability of Article................................ 59
Section 1202. Satisfaction of Sinking Fund Payments with Securities... 60
Section 1203. Redemption of Securities for Sinking Fund............... 60
ARTICLE THIRTEEN
Subordination of Securities............................................ 60
Section 1301. Securities Subordinate to Senior Debt................... 60
Section 1302. Payment Over of Proceeds Upon Dissolution, Etc.......... 61
Section 1303. No Payment When Senior Debt in Default.................. 62
Section 1304. Payment Permitted If No Default......................... 62
Section 1305. Subrogation to Rights of Holders of Senior Debt......... 63
Section 1306. Provisions Solely to Define Relative Rights............. 63
Section 1307. Trustee to Effectuate Subordination..................... 63
Section 1308. No Waiver of Subordination Provisions................... 64
Section 1309. Notice to Trustee....................................... 64
Section 1310. Reliance on Judicial Order or Certificate of
Liquidating Agent....................................... 65
Section 1311. Trustee Not Fiduciary for Holders of Senior Debt........ 65
Section 1312. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights........................ 65
Section 1313. Article Applicable to Paying Agents..................... 65
Section 1314. Defeasance of this Article Thirteen..................... 66
ARTICLE FOURTEEN
Conversion of Securities............................................... 66
Section 1401. Applicability of Article................................ 66
Section 1402. Conversion Privilege and Conversion Price............... 66
Section 1403. Exercise of Conversion Privilege........................ 67
Section 1404. Fractions of Shares..................................... 67
Section 1405. Adjustment of Conversion Price.......................... 68
Section 1406. Notice of Adjustments of Conversion Price............... 72
Section 1407. Notice of Certain Corporate Action...................... 72
Section 1408. Company to Reserve Common Stock......................... 73
Section 1409. Taxes on Conversions.................................... 73
Section 1410. Covenant as to Common Stock............................. 73
Section 1411. Cancellation of Converted Securities.................... 73
Section 1412. Provisions in Case of Consolidating Merger or Sale of
Assets.................................................. 73
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<PAGE>
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance..................................... 74
Section 1501. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance................ 74
Section 1502. Defeasance and Discharge................................ 75
Section 1503. Covenant Defeasance..................................... 75
Section 1504. Conditions to Defeasance or Covenant Defeasance......... 76
Section 1505. Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions........ 78
Section 1506. Reinstatement........................................... 78
Section 1507. Qualifying Trustee...................................... 79
ARTICLE SIXTEEN
Immunity of Incorporators, Stockholders, Officers,
Directors and Employees................................................ 79
Section 1601. Exemption from Individual Liability..................... 79
- ---------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
vii
<PAGE>
INDENTURE, dated as of _________ __, 199__, between Monsanto Company,
a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 800 North
Lindbergh Boulevard, St. Louis, Missouri 63167, and [Name of Trustee], as
Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
unsecured debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series as provided in this
Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation in the United States of
America; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
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<PAGE>
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 615 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in
Section 204 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or such nominee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. However, subject to the
provisions of Section 1411, shares issuable on conversion of Securities shall
include only shares of the class designated as Common Stock of the Company at
the date of this instrument or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable
2
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in the event of any voluntary or involuntary liquidation, dissolution or winding
up of the Company and which are not subject to redemption by the Company;
provided that if at any time there shall be more than one such resulting class,
the shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Financial Officer, a Vice Chairman
of the Board, a Vice Chairman or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Controller, an Assistant Controller, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Assets" means the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom all current liabilities (excluding any indebtedness for money borrowed
having a maturity of less than 12 months from the date of the most recent
consolidated balance sheet of the Company but which by its terms is renewable or
extendable beyond 12 months from such date at the option of the borrower), all
as set forth on the most recent consolidated balance sheet of the Company and
computed in accordance with generally accepted accounting principles.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of original execution of this Indenture
is located at ___________________________________________, except that, with
respect to presentation of the Securities for payment or registration of
transfers or exchanges and the location of the register, such term means the
office or agency of the Trustee at which at any particular time its corporate
agency business shall be conducted.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 301, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934; and if at any time there is more than
one such Person, "Depositary" as used with respect to the Securities of any
series shall mean the Depositary with respect to the Securities of such series.
"Event of Default" has the meaning specified in Section 501.
"Expiration Time" has the meaning specified in Section 1405.
3
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"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the forms and terms of
particular series of Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Financial
Officer, a Vice Chairman of the Board, a Vice Chairman or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Operating Property" means any real property or equipment located
within the United States and used primarily for manufacturing by the Company or
any of its Subsidiaries that has a net book value (after deduction of
accumulated depreciation) in excess of 2.0% of Consolidated Net Assets, other
than any such real property or equipment (i) which is financed by obligations
issued by a State, Commonwealth, Territory or possession of the United States of
America, or any political subdivision or governmental authority of any of the
foregoing, or the District of Columbia or (ii) which, in the opinion of the
Board of Directors of the Company, is not of material importance to the total
business conducted by the Company and its Restricted Subsidiaries taken as a
whole.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
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"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities; provided, that if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to Section 1104 of this Indenture
or provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1502
and 1503, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Fifteen; and
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calculations required
by Section 313 of the Trust Indenture Act, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 301 on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed to be Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to such Security pursuant to Section 301, and (iv) except for the
purpose of making the calculations required by Section 313 of the Trust
Indenture Act, Securities owned by the
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Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent, waiver
or other action, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Purchased Shares" has the meaning specified in Section 1405.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer, any senior
trust officer, any trust officer or assistant trust officer, or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his knowledge of and familiarity with the particular
subject.
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"Restricted Subsidiary" means any Subsidiary of the Company that owns
any Operating Property.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Securities Payment" has the meaning specified in Section 1302.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means, without duplication, the principal, premium (if
any) and unpaid interest on all present and future (i) indebtedness of the
Company for borrowed money, (ii) obligations of the Company evidenced by bonds,
debentures, notes or similar instruments, (iii) indebtedness incurred, assumed
or guaranteed by the Company in connection with the acquisition by it or a
Subsidiary of any business, properties or assets (except purchase-money
indebtedness classified as accounts payable under generally accepted accounting
principles), (iv) obligations of the Company as lessee under leases required to
be capitalized on the balance sheet of the lessee under generally accepted
accounting principles, (v) reimbursement obligations of the Company in respect
of letters of credit relating to indebtedness or other obligations of the
Company that qualify as indebtedness or obligations of the kind referred to in
clauses (i) through (iv) above, and (vi) obligations of the Company under direct
or indirect guarantees in respect of, and obligations (contingent or otherwise)
to purchase or otherwise acquire, or otherwise to assure a creditor against loss
in respect of, indebtedness or obligations of others of the kinds referred to in
clauses (i) through (v) above, in each case unless in the instrument creating or
evidencing the indebtedness or obligation or pursuant to which the same is
outstanding it is provided that such indebtedness or obligation is not superior
in right of payment to the Securities.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power for the
election of directors of such corporation (irrespective of whether or not at the
time stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned by the Company, or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries.
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"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the applicable
securities exchange or in the applicable securities market.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means any Subsidiary other than a Restricted
Subsidiary.
"U.S. Government Obligations" has the meaning specified in
Section 1504.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein 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 each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
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(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or representations
by counsel or an opinion of counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate, representations
or opinion with respect to the matters upon which such officer's certificate or
opinion is based are erroneous. Any such certificate or representations of
counsel or opinion of counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company stating that the information with respect to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary
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public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged
to him the execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The Company may fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to the
first solicitation of a Holder of Securities of such series made by any Person
in respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Global Trust
Services, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
instrument or at any other address previously furnished in writing to the
Trustee by the Company, Attention: Treasurer.
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Section 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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Section 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
Section 113. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, the Redemption Date, or at the Stated Maturity or
Maturity; provided, that no interest shall accrue for the intervening period.
ARTICLE TWO
Security Forms
Section 201. Forms Generally.
---------------
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by, or by action taken pursuant to, a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange
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on which the Securities may be listed, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
------------------------
[insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
MONSANTO COMPANY
----------------
No.____________ $______________
CUSIP No. __________________
Monsanto Company, a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ______________________________, or registered assigns, the
principal sum of _______________________ Dollars on ______________ [if the
Security is to bear interest prior to Maturity, insert, and to pay interest
thereon from ___________________ or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on
____________ and _____________in each year, commencing __________________, at
the rate of _____% per annum, until the principal hereof is paid or made
available for payment [if applicable, insert -- and (to the extent that the
payment of such interest shall be legally enforceable) at the rate of _______%
per annum on any overdue principal and premium and on any overdue installment of
interest]. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the __________ or ________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand.
[Any such interest on any overdue principal that is not so paid
13
<PAGE>
on demand shall bear interest at the rate of ___% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in __________________, in such
coin or currency of [the United States of America] as at the time of payment is
legal tender for payment of public and private debts [if applicable, insert --;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register,
provided that such Person shall have given the Trustee written wire instructions
at least five Business Days prior to the applicable Interest Payment Date.]
[If the Security is payable in a foreign currency, insert -- the
appropriate provision.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
MONSANTO COMPANY
By_____________________________
Title:
Attest:
- ------------------------------
Title:
14
<PAGE>
Section 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of __________, 199___ (herein called the
"Indenture"), between the Company and [Name of Trustee], as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee, the holders of
Senior Debt and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [,limited in aggregate principal
amount to $_____________].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, such 30
or 60 days, as the case may be, to be counted from the date notice is mailed,
[if applicable, insert -- (1) on __________ in any year commencing with the year
_________ and ending with the year __________ through operation of the sinking
fund for this series at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after _____________, 19___], as a whole or
in part, at the election of the Company, [at Redemption Prices determined as
follows:] [at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed [on or before _____________%, and if redeemed]
during the 12-month period beginning ____________ of the years indicated,
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
and thereafter at a Redemption Price equal to _____% of the principal amount,]
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Regular Record Dates or Special Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, such 30
or 60 days, as the case may be, to be counted from the date notice is mailed,
(1) on __________ in any year commencing with the year _____ and ending with the
year ______ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ______________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth
15
<PAGE>
in the table below: If redeemed during the 12-month period beginning ___________
of the years indicated,
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
- ---- ------------------- ----------------------
and thereafter at a Redemption Price equal to _________% of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof, all
as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to
_____________ redeem any Securities of this series as contemplated by [Clause
(2) of] the preceding paragraph as a part of, or in anticipation of, any
refunding operation by the application, directly or indirectly, of moneys
borrowed having an interest cost to the Company (calculated in accordance with
generally accepted financial practice) of less than _____% per annum.]
[The sinking fund for this series provides for the redemption on
_____________ in each year beginning with the year ________________ and ending
with the year of ___________ [not less than $_____________ ("mandatory sinking
fund") and not more than] $_________________ aggregate principal amount of
Securities of this series. Securities of this series acquired or redeemed by the
Company otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made [in the inverse order in which they become due].]
[If the Securities do not have a sinking fund, then insert -- the
Securities do not have the benefit of any sinking fund obligations.]
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Debt, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effect the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes.
16
<PAGE>
[If the Security is subject to redemption, insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If the Security is not subject to redemption, insert -- The
Securities of this series are not redeemable prior to Stated Maturity.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [and/or]
[certain restrictive covenants and Events of Default with respect to this
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to - insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
[If the Security is an Indexed Security, insert -- the appropriate
provision.]
[If the Security is convertible, insert -- Subject to and upon
compliance with the provisions of the Indenture, the Holder of this Security is
entitled, at its option, at any time on or after the opening of business on
__________, 199__ and on or before the close of business on __________, or in
case this Security or a portion hereof is called for redemption, then in respect
of this Security or such portion hereof until and including, but (unless the
Company defaults in making the payment due upon redemption) not after, the close
of business on the Redemption Date, to convert this Security (or any portion of
the principal amount hereof which is $ __________or an integral multiple
thereof), at the principal amount hereof, or of such portion, into fully paid
and nonassessable shares (calculated as to each conversion to the nearest 1/100
of a share) of [Common Stock] [Preferred Stock] of the Company at a conversion
price equal to $_________ aggregate principal amount of Securities for each
share of [Common Stock] [Preferred Stock] (or at the current adjusted conversion
price if an adjustment has been made as provided in the Indenture) by surrender
of this Security, duly endorsed or assigned to the Company or in blank, to the
Company at its office or agency in ______________________, accompanied by
written notice to the Company that the Holder hereof elects to convert this
Security, of if less than the entire principal amount hereof is to be converted,
the portion hereof to be converted, and, in case such surrender shall be made
during
17
<PAGE>
the period from the close of business on any Regular Record Date next preceding
any Interest Payment Date to the opening of business on such Interest Payment
Date (unless this Security of the portion hereof being converted has been called
for redemption on a Redemption Date within such period), also accompanied by
payment in immediately available funds or other funds acceptable to the Company
of an amount equal to the interest payable on such Interest Payment Date on the
principal amount of this Security then being converted. Subject to the aforesaid
requirement for payment and, in the case of a conversion after the Regular
Record Date next preceding any Interest Payment Date and on or before such
Interest Payment Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to receive an
installment of interest (with certain exceptions provided in the Indenture), no
payment or adjustment is to be made on conversion for interest accrued hereon or
for dividends on the Common Stock issued on conversion. No fractions of shares
or scrip representing fractions of shares will be issued on conversion, but
instead of any fractional interest the Company shall pay a cash adjustment as
provided in the Indenture. The conversion price is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party or the
transfer of substantially all of the assets of the Company, the Indenture shall
be amended, without the consent of any Holders of Securities, so that this
Security, if then outstanding, will be convertible thereafter, during the period
this Security shall be convertible as specified above, only into the kind and
amount of securities, cash and other property receivable upon the consolidation,
merger or transfer by a holder of the number of shares of [Common Stock]
[Preferred Stock] into which this Security might have been converted immediately
prior to such consolidation, merger or transfer (assuming such holder of [Common
Stock] [Preferred Stock] failed to exercise any rights of election and received
per share the kind and amount received per share by a plurality of non-electing
shares), assuming, if such consolidation, merger or transfer is prior to [insert
date upon which the Securities first become convertible], that this Security was
convertible at the time of such consolidation, merger or transfer at the initial
conversion price specified above as adjusted from [date of issuance], to such
time pursuant to the Indenture.]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
adversely affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be adversely affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional,
18
<PAGE>
to pay the principal of and any premium and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $______________ [and any integral multiple
thereof]. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past, present or future, of
the Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes (subject to Section 307 of the Indenture), whether or
not this Security be overdue, and neither the Company, the Trustee nor any such
agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture. The Indenture and
this Security shall be governed by and construed in accordance with the laws of
the State of New York without regard to the conflicts of laws principles
thereof.
19
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Section 204. Additional Provisions Required in Book-Entry Security.
-----------------------------------------------------
Any Book-Entry Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203 and in addition to any legend
required by the Depositary, bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depositary
or a nominee of a Depositary. This Security is exchangeable for Securities
registered in the name of a Person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
Section 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated:________________________
[Name of Trustee],
As Trustee
By _______________________________
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined
20
<PAGE>
in the manner provided, in an Officers' Certificate, or established in one or
more indentures supplemental hereto, prior to the issuance of Securities of any
series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant
to Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) the Person to whom any interest on a Security of the series shall
be payable, if other than the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest;
(4) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method of determination
thereof;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method of calculating such rate or rates of interest,
the date or dates from which such interest shall accrue or the method by which
such date or dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for any interest
payable on any Interest Payment Date;
(6) if other than the Corporate Trust Office of the Trustee, the place
or places where the principal of and any premium and interest on Securities of
the series shall be payable;
(7) the period or periods within which, the price or prices at which,
the currency or currencies (including currency units) in which and the other
terms and conditions upon which Securities of the series may be redeemed, in
whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods (or the methods of
determination of such a period or periods) within which, the price or prices at
which and the other terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the series
shall be payable if other than the currency of the United States of America and
the manner of determining the equivalent thereof in
21
<PAGE>
the currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference to an
index, formula or other method, the index, formula or other method by which such
amounts shall be determined;
(12) if the amount Outstanding of an Indexed Security for purposes of
the definition of "Outstanding" is to be other than the principal face amount at
original issuance, the method of determination of such amount;
(13) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or a Holder
thereof, in one or more currencies or currency units other than that or those in
which the Securities are stated to be payable, the currency, currencies or
currency units in which payment of the principal of and any premium and interest
on Securities of such series as to which such election is made shall be payable,
and the periods within which and the other terms and conditions upon which such
election is to be made;
(14) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion shall be determined;
(15) if either or both of Section 1502 or 1503 does not apply to the
Securities of any series;
(16) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Book-Entry Securities and, in such case, the
Depositary with respect to such Book-Entry Security or Securities and the
circumstances under which any Book-Entry Security may be registered for transfer
or exchange, or authenticated and delivered, in the name of a Person other than
such Depositary or its nominee, if other than as set forth in Section 305;
(17) the rights, if any, to defer payments of interest on any
Securities of the series by extending the interest payment period, and the
duration of such extensions;
(18) any additional, modified or different covenants or Events of
Default applicable to one or more particular series of Securities;
(19) the application, if any, of Article Fourteen to the Securities of
any Series; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution
22
<PAGE>
referred to above and (subject to Section 303) set forth, or determined in the
manner provided, in the Officers' Certificate referred to above 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, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President, its Chief
Financial Officer or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver or make available for
delivery such Securities; provided, however, that in the case of Securities of a
series that are not to be originally issued at one time, the Trustee shall
authenticate and deliver or make available for delivery such Securities from
time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. If the form or forms or terms of the Securities of
the series have been established in or pursuant to one or more Board Resolutions
as permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities
23
<PAGE>
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form or forms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 201, that such form or
forms have been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been, or in the case of
Securities of a series that are not to be originally issued at one time, will be
established by or pursuant to Board Resolution as permitted by Section 301, that
such terms have been, or in the case of Securities of a series that are not to
be originally issued at one time, will be established in conformity with the
provisions of this Indenture, subject, in the case of Securities of a series
that are not to be originally issued at one time, to any conditions specified in
such Opinion of Counsel; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles; provided, that such Opinion of Counsel need
express no opinion as to whether a court in the United States would render a
money judgment in currency other than that of the United States.
If such form or forms or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which the Trustee determines would expose it to personal liability.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the time
of authentication of each Security of such series if such documents, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Book-Entry Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such series, authenticate and deliver or make available for delivery one or more
Securities in such form that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Book-Entry Security or Securities, (ii)
shall be registered in the name of the Depositary for such Book-Entry Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
24
<PAGE>
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear the legend set forth in Section 204.
Unless otherwise established pursuant to Section 301, each Depositary
designated pursuant to Section 301 for a Book-Entry Security must, at the time
of its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Securities Exchange Act of 1934 and any other
applicable statute or regulation. The Trustee shall have no responsibility to
determine if the Depositary is so registered. Each Depositary shall enter into
an agreement with the Trustee governing the respective duties and rights of such
Depositary and the Trustee with regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized officer thereof,
and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, for all purposes of this Indenture such Security shall
be deemed never to have been authenticated and delivered hereunder and shall
never be entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver or make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver or make available for delivery in
exchange therefor one or more definitive Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and tenor.
Until so exchanged the temporary
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Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series and tenor.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Notwithstanding anything herein to the contrary, there shall be only
one Security Register with respect to each series of Securities.
Upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company in a Place of Payment for that
series, the Company shall execute, and the Trustee shall authenticate and
deliver or make available for delivery, in the name of the designated transferee
or transferees, one or more new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver or make available for delivery, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Security Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
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The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 305 for Securities registered in the names
of Persons other than the Depositary for such Security or its nominee only if
(i) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Book-Entry Security or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended and the Company does not appoint a successor
Depositary within 90 days after receipt by it of such notice or after it becomes
aware of such cessation, (ii) the Company executes and delivers to the Trustee a
Company Order that such Book-Entry Security shall be so exchangeable or (iii)
there shall have occurred and be continuing an Event of Default with respect to
the Securities. Any Book-Entry Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such names
as such Depositary shall direct.
Notwithstanding any other provision in this Indenture, unless and
until it is exchanged in whole or in part for Securities that are not in the
form of a Book-Entry Security, a Book-Entry Security may not be transferred or
exchanged except as a whole by the Depositary with respect to such Book-Entry
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary.
None of the Company, the Trustee, 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 in a Book-Entry Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver or make available
for delivery in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency maintained for such purpose pursuant
to Section 1002; provided, however, that at the option of the Company, interest
on Securities of any series that bear interest may be paid (i) by check mailed
to the address of the Person entitled thereto as it shall appear on the Security
Register or (ii) by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register; provided, that such
Person shall have given the Trustee written wire instructions at least five
Business Days prior to the applicable Interest Payment Date.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such
series and the date of the proposed payment, and at the same time the Company
shall deposit with the Trustee
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an amount of money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
In the case of any Security which is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date (other
than any Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest
(whether or not punctually paid or duly provided for) shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest whose Stated Maturity is after the
date of conversion of such Security shall not be payable.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
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purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 309. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered and any Securities surrendered directly to the
Trustee for any such purpose shall be promptly canceled by the Trustee and such
cancellation shall be noted conspicuously on each such Security. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly canceled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture. All
canceled Securities held by the Trustee shall be disposed of as directed by a
Company Order or after 90 days, if not in receipt of such Company Order, shall
be disposed of in accordance with the Trustee's customary procedures.
Section 310. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 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 311. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
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ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer, exchange or replacement of such Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Securities, including, but not limited to,
Article Thirteen hereof, when
(1) either
(A) all such Securities theretofore authenticated and delivered (other
than (i) such Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306 and (ii) such Securities
for whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company, and the Company,
in the case of (B)(i), (ii) or (iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an amount in
the currency or currencies or currency unit or units in which such Securities
are payable sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture with
respect to such Securities have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and to any
Authenticating Agent under Section 615 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402, Article Six and the last paragraph
of Section 1003 shall survive.
Section 402. Application of Trust Money.
--------------------------
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
-----------------
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body, unless
it is inapplicable to a particular series or is specifically deleted or modified
in the Board Resolution (or action taken pursuant thereto), Officers'
Certificate or supplemental indenture under which such series of Securities is
issued or has been modified in an indenture supplemental hereto):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series and continuance of such default
for a period of 30 days; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to Securities of that series
(other than a covenant or warranty 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 90 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the Company
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written
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notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or of any other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the entry of a decree or order
for relief in respect of the Company in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case or
proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the Company
in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default described in
clause 5 or 6 of Section 501) with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or, in the case of Original Issue Discount Securities or Indexed
Securities, such specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been
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obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration of
acceleration and any interest thereon at the rate or rates prescribed therefor
in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed therefor in such
Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default described in clause 5 or 6 of Section 501
occurs, the Outstanding Securities shall ipso facto become immediately due and
payable without need of any declaration or other act on the part of the Trustee
or any Holder.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
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the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments directly to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due it
for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and may be a member of a
creditors' or other similar committee.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and
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<PAGE>
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable on
such Securities for principal and any premium and interest, respectively;
and
THIRD: The balance, if any, to the Company.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee before or during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
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<PAGE>
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
----------------------------------------------------------------
Interest.
--------
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306 and as otherwise provided in Section 507, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
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Section 512. Control by Holders.
------------------
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good faith
shall, by a Responsible Officer or Officers of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
Section 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including counsel fees and expenses, against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided, that
neither this Section nor the Trust Indenture Act shall be deemed to authorize
any court to require such an undertaking or to make such an
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assessment in any suit instituted by the Company, the Trustee or the Holders of
10% in aggregate principal amount of the Outstanding Securities of any series.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
-----------------------------------
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
------------------
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall, within 90 days, give the Holders of Securities of
such series notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event which is, or after notice or lapse of time or both would become, an
Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document (whether in its
original or facsimile form) believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities. Neither
the Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities and Serve as Trustee Under Other Indentures.
---------------------------------------------------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company
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with the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
Subject to the provisions of Section 608, the Trustee may become and
act as trustee under other indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee.
Section 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time such reasonable
compensation as shall be agreed in writing between the Company and the Trustee
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, willful misconduct or bad
faith; and
(3) to indemnify each of the Trustee, or any predecessor Trustee, for,
and to hold it harmless against, any and all loss, liability, damage, claim or
expense incurred without negligence or willful misconduct on its part, arising
out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
The Trustee shall have a lien prior to the Securities upon all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
Without limiting any rights available to the Trustee under applicable
law, when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(6) or Section 501(7), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
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The provisions of this Section shall survive the satisfaction and
discharge of this Indenture and the resignation or removal of the Trustee.
Section 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of any federal or state supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
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(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
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Section 611. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; provided, however, that to the extent that such
property and money is not held by the Trustee in trust for the benefit of the
Holders of particular Securities, such retiring Trustee shall transfer and
deliver to such successor Trustee such property and money upon payment of its
charges hereunder.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee
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all such rights, powers and trusts referred to in paragraph (a) and (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Investment of Certain Payments Held by the Trustee.
--------------------------------------------------
Any amounts held by the Trustee hereunder, other than pursuant to
Article Thirteen hereof, shall be invested by the Trustee from time to time at
the direction of the Company in such investments as may be specified by the
Company and reasonably agreed to by the Trustee from time to time; provided that
in investing trust funds pursuant to the terms of this Section and liquidating
any investments held in trust hereunder, the Trustee may, to the extent
permitted by law, purchase securities (including for the purposes of this
paragraph securities as to which the Trustee or a Trustee Affiliate (as defined
below) is the issuer or guarantor) from, and sell securities to, itself or any
Trustee Affiliate and purchase securities underwritten by, or in which a market
is made by, the Trustee or a Trustee Affiliate. For the purposes hereof, a
"Trustee Affiliate" shall mean an entity that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, the Trustee. Any income or gain realized as a result of any such
investment shall be promptly distributed (in no event later than the next
Business Day) to the Company after any intended amounts have been paid to the
Holders entitled thereto, except after the occurrence and during the continuance
of an Event of Default. The Trustee shall have no liability to the Company for
any loss resulting from any investment made in accordance with this Section, and
shall bear no expense in connection with any investment pursuant to this
Section. Any such investment may be sold (without regard to maturity date) by
the Trustee whenever necessary to make any distribution
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required by this Indenture. Nothing herein shall require the Trustee to invest
funds held by it pursuant to the last paragraph of Section 1003.
Section 615. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and
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duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: ______________________
[Name of Trustee]
As Trustee
By____________________________
As Authenticating Agent
By____________________________
Authorized Signatory
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee (a)
semi-annually, not later than ___________ and ___________ in each year, a list,
in such form as the Trustee may reasonably require, of the names and addresses
of the Holders as of the preceding ___________ or ___________ , as the case may
be, and (b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list in similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; excluding from any such list names and addresses received by the
Trustee in its capacity as Security Registrar.
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Section 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
sixty days after each May 15 following the date of the first issuance of
Securities hereunder deliver to Holders a brief report, dated as of such May 15,
which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
promptly will notify the Trustee when any Securities are listed on any stock
exchange or delisted therefrom.
Section 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided, that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance, transfer or lease the
properties and assets of the Company substantially as an entirety shall be a
corporation, partnership or trust organized and validly existing under the laws
of the United States of America, any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on all
the Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
This Section shall not apply to any merger or consolidation in which
the Company is the surviving corporation.
Sction 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease 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
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
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Section 803. Officers' Certificate and Opinion of Counsel.
--------------------------------------------
The Trustee, subject to the provisions of Sections 601 and 603, shall
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, conveyance, transfer or lease, and
any such assumption, complies with the provisions of this Article before the
Trustee shall execute any supplemental indenture required pursuant to this
Article.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and
with or without interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form or in the form of Book-Entry Securities; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding; or
(6) to secure the Securities; or
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(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) if allowed, without penalty under applicable laws and regulations,
to permit payment in the United States (including any of the States thereof and
the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction of principal, premium, if any, or interest, if any,
on Securities in bearer form or coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein or
to make any other provisions with respect to matters or questions arising under
this Indenture, provided that such action pursuant to this clause (10), other
than with respect to a defective provision, shall not adversely affect the
interests of the Holders of Securities of any series in any material respect.
Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series adversely affected
by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change any
Place of Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or adversely
affect any right of the Holder of any Security to require the Company to
repurchase such Security, or adversely affect the right to convert any Security
as contemplated by Article Fourteen or modify the provisions of Article Thirteen
or the definition of "Senior Debt" in a manner adverse to the Holder of any
Security in any material respect, or
51
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(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1007, except to increase any percentage set forth in such Sections or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 1007, or the deletion of
this proviso, in accordance with the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
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Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
------------------------------------------
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of the series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Trustee is hereby initially appointed Paying Agent, and the
Corporate Trust Office of the Trustee is initially designated as the office or
agency for the foregoing purposes. The Company will give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
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Section 1003. Money for Securities Payments to Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit with
a Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest 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 (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest 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.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or received
by the Trustee in respect of obligations deposited with the Trustee pursuant to
Article Fifteen, or then held by the Company, in trust for the payment of the
principal of (and premium, if any) or interest on any Security of any series and
remaining unclaimed for two years after such principal (and premium, if
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any) or interest has become due and payable shall be paid to the Company on
Company Request (unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, 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 (unless the Company has remitted required moneys or other
property to the appropriate governmental authority under any applicable escheat
or abandoned or unclaimed property laws, or has otherwise been discharged under
such laws or laws of similar applicability, in which case such Holder shall look
solely to its remedies (if any) under such laws and not to the Company), and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
Section 1004. Payment of Taxes and Other Claims.
---------------------------------
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Restricted
Subsidiary or upon the income, profits or any Operating Property of the Company
or any Restricted Subsidiary, and (2) all lawful claims for labor materials and
supplies which, if unpaid, might by law become a lien upon any Operating
Property of the Company or any Restricted Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim (a) whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings or (b) which is not of material importance to the business,
operations, financial condition or results of operations of the Company and its
Restricted Subsidiaries taken as a whole.
Section 1005. Maintenance of Operating Properties.
-----------------------------------
The Company will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements to the Operating Properties as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company or any
Restricted Subsidiary from discontinuing the operation and maintenance of any of
such Operating Properties or from omitting to make any repairs, renewals,
replacements, betterments or improvements thereof if such discontinuance or
omission is in the judgement of the Company, desirable in the conduct of the
business of the Company and its Restricted Subsidiaries taken as a whole.
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Section 1006. Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company.
Section 1007. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004 to 1006, inclusive, with
respect to the Securities of any series if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
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.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive compliance with any
covenant or condition hereunder. If a record date is fixed, the Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to waive any such compliance, whether or not such Holders remain
Holders after such record date.
Section 1008. Compliance Certificate.
----------------------
The Company will furnish to the Trustee on or before May 1 in each
year (beginning the first May 1 after the date of original issuance of
Securities hereunder) a brief certificate (which need not comply with Section
102) from the principal executive, financial or accounting officer of the
Company stating that in the course of the performance by the signer of his or
her duties as an officer of the Company he or she would normally have knowledge
of any default or non-compliance by the Company in the performance of any
covenants or conditions contained in this Indenture, stating whether or not he
or she has knowledge of any such default or non-compliance and, if so,
specifying each such default or non-compliance of which the signer has knowledge
and the nature thereof. For purposes of this Section 1008, non-compliance or
default shall be determined without regard to any grace period or requirement of
notice provided pursuant to the terms of this Indenture.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable in whole or in part
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
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Section 1102. Election to Redeem: Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution or Officers' Certificate. In
case of any redemption at the election of the Company of the Securities of any
series, the Company shall, at least 60 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date, of the principal amount of
Securities of such series to be redeemed and, if applicable, of the tenor of the
Securities to be redeemed. In the case of any redemption of Securities (a) prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture or (b) pursuant to an election of
the Company which is subject to a condition specified in the terms of such
Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officers' Certificate evidencing compliance with such restriction or
condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed or unless such redemption affects only a single Security), the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of a portion of the principal amount of any Security of such series,
provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Security. If less than all of the Securities
of such series and of a specified tenor are to be redeemed (unless such
redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
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Section 1104. Notice of Redemption.
--------------------
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) in the case of partial redemption of any Securities, the principal
amounts of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, or portion thereof, to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) that there exists a conversion privilege.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
---------------------------
On or prior to the Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on
that date.
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Section 1106. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver or make available for delivery to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. If a Book-
Entry Security is so surrendered, such new Security so issued shall be a new
Book-Entry Security.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
------------------------
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities
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of any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. 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 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and stating the basis for such credit and that such
Securities have not been previously so credited and will also deliver to the
Trustee any Securities to be so delivered. 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
1103 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 1104. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
Subordination of Securities
Section 1301. Securities Subordinate to Senior Debt.
-------------------------------------
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article (subject to the provisions
of Article Four and Article Fifteen), the payment of the principal of (and
premium, if any) and interest on each and all of the Securities (including any
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amounts payable upon a purchase of the Securities) are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Debt.
Section 1302. Payment Over of Proceeds Upon Dissolution, Etc.
----------------------------------------------
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, or (b) any liquidation, dissolution or other
winding up of the Company, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (c) any assignment for the benefit of
creditors or any other marshaling of assets and liabilities of the Company, then
and in any such event specified in (a), (b) or (c) above (each such event, if
any, herein sometimes referred to as a "Proceeding") the holders of Senior Debt
shall be entitled to receive payment in full of all amounts due or to become due
on or in respect of all Senior Debt, or provision shall be made for such payment
in cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Senior Debt, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, whether in cash, property or
securities, on account of principal of (or premium, if any) or interest on or
other obligations in respect of the Securities or on account of any purchase or
other acquisition of Securities by the Company or any Subsidiary of the Company
(all such payments, distributions, purchases and acquisitions herein referred
to, individually and collectively, as a "Securities Payment"), and to that end
the holders of Senior Debt shall be entitled to receive, for application to the
payment thereof, any Securities Payment which may be payable or deliverable in
respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt is paid in full or payment thereof
provided for in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, and if such fact shall, at or prior to the time
of such Securities Payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such Securities Payment shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Company provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or readjustment which
stock or securities are subordinated in right of payment to all then outstanding
Senior Debt to substantially the same extent as the Securities are so
subordinated as provided in this Article. The consolidation of the Company with,
or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance or transfer of all or
substantially all of its properties and assets as an entirety to another
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Person upon the terms and conditions set forth in Article Eight shall not be
deemed a Proceeding for the purposes of this Section if the Person formed by
such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer such properties and assets as an entirety, as
the case may be, shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions set forth in Article Eight.
Section 1303. No Payment When Senior Debt in Default.
--------------------------------------
In the event that any Securities are declared due and payable before
their Stated Maturity, then in such event the holders of the Senior Debt
outstanding at the time of such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Debt, or provision shall be made for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of such
Senior Debt, before the Holders of the Securities are entitled to receive any
Securities Payment.
In the event and during the continuation of any default in the payment
of principal of (or premium, if any) or interest on any Senior Debt beyond any
applicable grace period with respect thereto, or in the event that any event of
default with respect to any Senior Debt shall have occurred and be continuing
permitting the holders of such Senior Debt (or a trustee on behalf of the
holders thereof) to declare such Senior Debt due and payable prior to the date
on which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to exist
and such acceleration shall have been rescinded or annulled, or in the event any
judicial proceeding shall be pending with respect to any such default in payment
or event of default, then no Securities Payment shall be made; provided,
however, that nothing in this paragraph shall prevent the satisfaction of any
sinking fund payment in accordance with Article Twelve by delivering and
crediting, pursuant to Section 1202, Securities which have been acquired (upon
redemption or otherwise).
In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such Securities Payment, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such Securities Payment shall
be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 1302 would be applicable.
Section 1304. Payment Permitted If No Default.
-------------------------------
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 1302 or under the
conditions described in Section 1303, from making Securities Payments, or (b)
the application by the Trustee of any money deposited with it hereunder to
Securities Payments or the retention of such Securities Payment by the Holders,
if, at the time of
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such application by the Trustee, it did not have knowledge that such Securities
Payment would have been prohibited by the provisions of this Article.
Section 1305. Subrogation to Rights of Holders of Senior Debt.
-----------------------------------------------
Subject to the payment in full of all amounts due or to become due on
or in respect of Senior Debt, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt,
the Holders of the Securities shall be subrogated to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of (and premium, if
any) and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders of the Securities or the
Trustee would be entitled except for the provisions of this Article, and no
payments over pursuant to the provisions of this Article to the holders of
Senior Debt by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
Section 1306. Provisions Solely to Define Relative Rights.
-------------------------------------------
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall (a)
impair, as among the Company, its creditors other than holders of Senior Debt
and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Securities
and creditors of the Company other than the holders of Senior Debt; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Debt to
receive cash, property and securities otherwise payable or deliverable to the
Trustee or such Holder.
Section 1307. Trustee to Effectuate Subordination.
-----------------------------------
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
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Section 1308. No Waiver of Subordination Provisions.
-------------------------------------
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any manner
for the collection of Senior Debt; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 1309. Notice to Trustee.
-----------------
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium, if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Debt (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Debt (or a
trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Debt to participate in any payment or
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distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
Section 1310. Reliance on Judicial Order or Certificate of Liquidating Agent.
--------------------------------------------------------------
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 601, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
Section 1311. Trustee Not Fiduciary for Holders of Senior Debt.
------------------------------------------------
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to Holders of Securities or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article or otherwise.
Section 1312. Rights of Trustee as Holder of Senior Debt; Preservation of
-----------------------------------------------------------
Trustee's Rights.
----------------
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 607.
Section 1313. Article Applicable to Paying Agents.
-----------------------------------
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 1312 shall
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not apply to the Company or any Affiliate of the Company if it or such Affiliate
acts as Paying Agent.
Section 1314. Defeasance of this Article Thirteen.
-----------------------------------
The subordination of the Securities provided by this Article Thirteen
is expressly made subject to the provisions for defeasance or covenant
defeasance in Article Fifteen hereof and, anything herein to the contrary
notwithstanding, upon the effectiveness of any such defeasance or covenant
defeasance, the Securities then outstanding shall thereupon cease to be
subordinated pursuant to this Article Thirteen.
ARTICLE FOURTEEN
Conversion of Securities
Section 1401. Applicability of Article.
------------------------
If pursuant to Section 301 provision is made for the conversion of
Securities pursuant to this Article Fourteen, then the provisions of this
Article Fourteen, with such modifications thereto as may be specified pursuant
to Section 301 with respect to any Securities, shall be applicable to the
Securities of such series.
Section 1402. Conversion Privilege and Conversion Price.
-----------------------------------------
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof which is $1,000 or an integral multiple of $1,000 may be
converted at the principal amount thereof, or of such portion thereof, into
fully paid and nonassessable shares (calculated as to each conversion to the
nearest 1/100 of a share) of Common Stock of the Company, at the conversion
price, determined as hereinafter provided, in effect at the time of conversion.
Such conversion right shall commence at the opening of business on the date
provided for with respect to such Securities and expire at the close of business
on the date provided for with respect to such Securities. In case a Security or
portion thereof is called for redemption, such conversion right in respect of
the Security or portion so called shall expire at the close of business on the
Redemption Date, unless the Company defaults in making the payment due upon
redemption.
The price at which shares of Common Stock shall be delivered upon
conversion is herein referred to as the "conversion price". The conversion
price shall be adjusted in certain instances as provided in Section 1405.
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Section 1403. Exercise of Conversion Privilege.
--------------------------------
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to Section 1002, accompanied by written
notice to the Company at such office or agency that the Holder elects to convert
such Security or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted. Securities surrendered for
conversion during the period from the close of business on any Regular Record
Date next preceding any Interest Payment Date to the opening of business on such
Interest Payment Date shall (except in the case of Securities or portions
thereof which have been called for redemption on a Redemption Date within such
period) be accompanied by payment in immediately available funds or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of Securities being surrendered
for conversion. Except as provided in the preceding sentence and subject to the
third paragraph of Section 307, no payment or adjustment shall be made upon any
conversion on account of any interest accrued on the Securities surrendered for
conversion or on account of any dividends on the Common Stock issued upon
conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 1404.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
Section 1404. Fractions of Shares.
-------------------
No fractional shares of Common Stock shall be issued upon conversion
of Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the market price per
share of Common Stock (as determined by the Board of Directors or in any manner
prescribed by the Board of Directors) at the close of business on the day of
conversion.
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Section 1405. Adjustment of Conversion Price.
------------------------------
(1) In case at any time after the date of the issuance of the
applicable Securities, the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company in Common Stock, the
conversion price in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such conversion
price by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (1), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.
(2) In case at any time after the date of the issuance of the
applicable Securities, the Company shall issue rights or warrants to all holders
of its Common Stock (not being available on an equivalent basis to Holders of
the Securities upon conversion) entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the current market price
per share (determined as provided in paragraph (8) of this Section) of the
Common Stock on the date fixed for the determination of stockholders entitled to
receive such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the conversion price in effect at the opening of business on
the day following the date fixed for such determination shall be reduced by
multiplying such conversion price by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such
current market price and the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not issue any rights or warrants in respect of shares of Common Stock held
in the treasury of the Company.
(3) In case at any time after the date of the issuance of the
applicable Securities, outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the conversion price in effect
at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and, conversely,
in case outstanding shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the conversion price in effect at the opening
of business on the
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day following the day upon which such combination becomes effective shall be
proportionately increased, such reduction or increase, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(4) In case at any time after the date of the issuance of the
applicable Securities, the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or distribution paid in cash out of
the retained earnings of the Company and any dividend or distribution referred
to in paragraph (1) of this Section), the conversion price shall be adjusted so
that the same shall equal the price determined by multiplying the conversion
price in effect immediately prior to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the current market price per share
(determined as provided in paragraph (8) of this Section) of the Common Stock on
the date fixed for such determination less the then fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution filed with the Trustee) of the portion of
the assets or evidences of indebtedness so distributed applicable to one share
of Common Stock and the denominator shall be such current market price per share
of the Common Stock, such adjustment to become effective immediately prior to
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution.
(5) In case at any time after the date of the issuance of the
applicable Securities, the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock cash (excluding any cash that is distributed
upon a merger or consolidation to which Section 1411 applies or as part of a
distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, combined together with (I) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in cash within
the 12 months preceding the date of payment of such distribution and in respect
of which no adjustment pursuant to this paragraph (5) has been made and (II) the
aggregate of any cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution) of any non-cash consideration payable in respect of any tender offer
by the Company or any of its subsidiaries for all or any portion of the Common
Stock concluded within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to paragraph (6) of
this Section has been made, exceeds 15% of the product of the current market
price per share of the Common Stock on the date for the determination of holders
of shares of Common Stock entitled to receive such distribution times the number
of shares of Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for determination, the
conversion price shall be decreased so that the same shall equal the price
determined by multiplying the conversion price in effect immediately prior to
the close of business on the date fixed for determination of the stockholders
entitled to receive such distribution by a fraction (i) the numerator of which
shall be equal to the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date fixed for such
determination less an amount equal to the quotient of (x) the excess of such
combined amount over such 15% and (y)
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the number of shares of Common Stock outstanding on such date for determination
and (ii) the denominator of which shall be equal to the current market price per
share (determined as provided in paragraph (8) of this Section) of the Common
Stock on such date for determination.
(6) In case at any time after the date of the issuance of the
applicable Securities, a tender offer made by the Company or any Subsidiary for
all or any portion of the Common Stock shall expire and such tender offer (as
amended upon the expiration thereof) shall require the payment to stockholders
of an aggregate consideration having a fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution) that combined together with (I) the aggregate of the cash plus
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution), as of
the expiration of such tender offer, of any non-cash consideration payable in
respect of any other tender offer, by the Company or any Subsidiary for all or
any portion of the Common Stock expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no adjustment pursuant
to this paragraph (6) has been made and (II) the aggregate amount of any
distributions to all holders of the Company's Common Stock made exclusively in
cash within 12 months preceding the expiration of such tender offer and in
respect of which no adjustment pursuant to paragraph (5) of this Section has
been made, exceeds 15% of the product of the current market price per share of
the Common Stock (determined as provided in paragraph (8) of this Section) as of
the last time (the "Expiration Time") tenders could have been made pursuant to
such tender offer (as it may be amended) times the number of shares of Common
Stock outstanding (including any tendered shares) on the Expiration Time, then,
and in each such case, immediately prior to the opening of business on the day
after the date of the Expiration Time, the conversion price shall be adjusted so
that the same shall equal the price determined by multiplying the conversion
price immediately prior to close of business on the date of the Expiration Time
by a fraction (i) the numerator of which shall be equal to (A) the product of
(I) the current market price per share of the Common Stock (determined as
provided in paragraph (8) of this Section) on the date of the Expiration Time
and (II) the number of shares of Common Stock outstanding (including any
tendered shares) on the Expiration Time less (B) the amount of cash plus the
fair market value (determined as aforesaid) of the aggregate non-cash
consideration payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares, and (ii) the
denominator of which shall be equal to the product of (A) the current market
price per share of the Common Stock (determined as provided in paragraph (8) of
this Section) as of the Expiration Time and (B) the number of shares of Common
Stock outstanding (including any tendered shares) as of the Expiration Time less
the number of all shares accepted for payment pursuant to such tender offer (the
shares deemed so accepted up to any such maximum, being referred to as the
"Purchased Shares").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 1412 applies) shall be deemed to
involve (a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of stockholders entitled
to receive such
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distribution" and "the date fixed for such determination" within the meaning of
paragraph (4) of this Section), and (b) a subdivision or combination, as the
case may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section).
(8) For the purpose of any computation under paragraphs (2), (4), (5)
and (6) of this Section, the current market price per share of Common Stock on
any date shall be deemed to be the average of the daily closing prices for the
five consecutive Trading Days selected by the Company commencing not more than
20 Trading Days before, and ending not later than the earlier of the day in
question and the day before the "ex" date with request to the issuance or
distribution requiring such computation. The closing price for each day shall
be the last reported sales price regular way or, in case no such reported sale
takes place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the New York Stock Exchange or, if the
Common Stock is not listed or admitted to trading on such Exchange, on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, on the National Association of Securities Dealers Automated
Quotations National Market System or, if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on such
National Market System, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose. For purposes of this
paragraph, the term "'ex' date", when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades regular way
on such exchange or in such market without the right to receive such issuance or
distribution.
(9) No adjustment in the conversion price shall be required unless
such adjustment (plus any adjustments not previously made by reason of this
paragraph (9)) would require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by reason of this paragraph
(9) are not required to be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under this paragraph (9) shall
be made to the nearest cent.
(10) The Company may make such reductions in the conversion price, in
addition to those required by this Section, as it considers to be advisable in
order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons. The Company shall have the
power to resolve any ambiguity or correct any error in this paragraph (10) and
its actions in so doing shall be final and conclusive.
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Section 1406. Notice of Adjustments of Conversion Price.
-----------------------------------------
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price in
accordance with Section 1405 and shall prepare a certificate signed by the
Treasurer of the Company setting forth the adjusted conversion price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 1002; and
(b) a notice stating that the conversion price has been adjusted and
setting forth the adjusted conversion price shall forthwith be required, and as
soon as practicable after it is required, such notice shall be mailed by the
Company to all Holders at their last addresses as they shall appear in the
Security Register.
Section 1407. Notice of Certain Corporate Action.
----------------------------------
In case at any time after the date 20 days prior to the date on which
the Securities first become convertible:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock payable otherwise than in cash out of its retained earnings;
or
(b) the Company shall authorize the granting to the holders of its
Common Stock of rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding shares of Common Stock), or
of any consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be mailed to all Holders at their last addresses as they shall appear
in the Security Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is to be
taken for the purpose of such dividend, distribution, rights or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution, rights or warrants are to
be determined, or (y) the date on which such reclassification, consolidation,
merger, share exchange, sale, transfer, dissolution, liquidation or winding up
is expected to become effective, and
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the date as of which it is expected that holders of Common Stock of record shall
be entitled to exchange their shares of Common Stock for securities, cash or
other property deliverable upon such reclassification, consolidation, merger,
share exchange, sale, transfer, dissolution, liquidation or winding up. Neither
the failure to give such notice nor any defect therein shall affect the legality
or validity of the proceedings described in clauses (a) through (d) of this
Section 1407. If at the time the Trustee shall not be the conversion agent, a
copy of such notice shall also forthwith be filed by the Company with the
Trustee.
Section 1408. Company to Reserve Common Stock.
-------------------------------
The Company shall at all times reserve and keep available, free from
pre-emptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all outstanding Securities.
Section 1409. Taxes on Conversions.
--------------------
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of Securities
pursuant hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that of the Holder of
the Security or Securities to be converted, and no such issue or delivery shall
be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.
Section 1410. Covenant as to Common Stock.
---------------------------
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable and, except as provided in Section 1409, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
Section 1411. Cancellation of Converted Securities.
------------------------------------
All Securities delivered for conversion shall be delivered to the
Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
Section 1412. Provisions in Case of Consolidation, Merger or Sale of Assets.
-------------------------------------------------------------
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company
(other than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company)
or any sale or transfer of all or substantially all of the assets of the
Company, the Person formed by such consolidation or resulting from such merger
or which acquires
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such assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 1402, to convert such Security only
into the kind and amount of securities, cash and other property receivable upon
such consolidation, merger, sale or transfer by a holder of the number of shares
of Common Stock of the Company into which such Security might have been
converted immediately prior to such consolidation, merger, sale or transfer,
assuming such holder of Common Stock of the Company (i) is not a Person with
which the Company consolidated or into which the Company merged or which merged
into the Company or to which such sale or transfer was made, as the case may be
("constituent Person"), or an Affiliate of a constituent Person and (ii) failed
to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer (provided that if the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer is
not the same for each share of Common Stock of the Company held immediately
prior to such consolidation, merger, sale or transfer by other than a
constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("non-electing share"), then for the
purpose of this Section the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, sale or transfer by each
non-electing share shall be deemed to be the kind and amount so receivable per
share by a plurality of the non-electing shares), and assuming, if such
consolidation, merger, sale or transfer is prior to the date upon which the
Securities first become convertible, that the Securities were convertible at the
time of such consolidation, merger, sale or transfer at the initial conversion
price specified in Section 1402 as adjusted from the date of the issuance of the
applicable Securities to such time pursuant to Section 1405. Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers, sales or transfers.
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
Section 1501. Applicability of Article; Company's Option to Effect Defeasance
---------------------------------------------------------------
or Covenant Defeasance.
----------------------
Unless, pursuant to Section 301, provision is made that either or both
of (a) defeasance of the Securities of a series under Section 1502 or (b)
covenant defeasance of the Securities of a series under Section 1503 shall not
apply to the Securities of a series, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
Fifteen, with such modifications thereto as may be specified pursuant to Section
301 with respect to any Securities, shall be applicable to the Securities of
such series, and the Company may at its option by Board Resolution, at any time,
with respect to the Securities of such series, elect to
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have either Section 1502 (if applicable) or Section 1503 (if applicable) applied
to the Outstanding Securities of such series upon compliance with the conditions
set forth below in this Article Fifteen.
Section 1502. Defeasance and Discharge.
------------------------
Upon the Company's exercise of its option to have this Section applied
to any series of Securities, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of such series,
and the provisions of Article Thirteen hereof shall cease to be effective, on
and after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series which shall thereafter
be deemed to be "Outstanding" only for the purposes of the Sections of this
Indenture referred to in clauses (A) and (B) of this Section, and to have
satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of such series to
receive, solely from the trust fund described in Section 1504 as more fully set
forth in such Section, payments of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 305, 306, 1002 and
1003 and such obligations as shall be ancillary thereto, (C) the rights, powers,
trusts, duties, immunities and other provisions in respect of the Trustee
hereunder and (D) this Article Fifteen. Subject to compliance with this Article
Fifteen, the Company may exercise its option under this Section 1502
notwithstanding the prior exercise of its option under Section 1503 with respect
to the Securities of such series. Following a defeasance, payment of such
Securities may not be accelerated because of an Event of Default.
Section 1503. Covenant Defeasance.
-------------------
Upon the Company's exercise of its option (if any) to have this
Section applied to any series of Securities, the Company shall be released from
its obligations under Section 801 (and any covenant made applicable to such
Securities pursuant to Section 301), the occurrence of an event specified in
Section 501(4) (with respect to Section 801 or any such covenant) (and any other
Event of Default applicable to such Securities that are determined pursuant to
Section 301 to be subject to this provision) shall not be deemed to be an Event
of Default with respect to the Outstanding Securities of such series and the
provisions of Article Thirteen hereof shall cease to be effective on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and such Securities shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with
Section 801 (and any other covenant made applicable to such Security pursuant to
Section 301 and any such Events of Default), but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of such
series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or
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limitation set forth in any such Section or such other covenant whether directly
or indirectly by reason of any reference elsewhere herein to any such Section or
such other covenant or by reason of any reference in any such Section or such
other covenant to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
Notwithstanding the defeasance by the Company of its obligations under Section
801, any successor shall be required to assume the Company's obligations under
Section 607 as a condition to such succession.
Section 1504. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions precedent to application of
either Section 1502 or Section 1503 to the Outstanding Securities of or within
such series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 609 who shall agree to comply with the provisions of this Article
Fifteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (A) money in an amount (in
such currency, currencies or currency units in which such Securities are then
specified as payable at Maturity), or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (C) a combination thereof in an
amount, sufficient, without reinvestment, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest on the
Outstanding Securities of such series on the Maturity of such principal,
premium, if any, or interest and (ii) any mandatory sinking fund payments
applicable to such Securities on the day on which such payments are due and
payable in accordance with the terms of this Indenture and such Securities.
Before such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in accordance
with Article Eleven, which shall be given effect in applying the foregoing. For
this purpose, "U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such 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 U.S. Government Obligation or the specific
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<PAGE>
payment of principal of or interest on the U.S. Government Obligation evidenced
by such depositary receipt.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of such
series shall have occurred and be continuing (A) on the date of such deposit or
(B) insofar as subsections 501(5) and (6) are concerned, at any time during the
period ending on the 91st day after the date of such deposit or, if longer,
ending on the day following the expiration of the longest preference period
applicable to the Company in respect of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such
period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest as
defined in Section 608 or for purposes of the Trust Indenture Act with respect
to any Securities of the Company or (B) result in the trust arising from such
deposit to constitute, unless it is qualified as, a regulated investment company
under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(5) In the case of an election under Section 1502, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (y) since the date of this Indenture there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for federal
income tax purposes as a result of such defeasance and will be subject to
federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred.
(6) In the case of an election under Section 1503, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant
defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the
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defeasance under Section 1502 or the covenant defeasance under Section 1503 (as
the case may be) have been complied with.
Section 1505. Deposited Money and U.S. Government Obligations to be Held in
-------------------------------------------------------------
Trust; Other Miscellaneous Provisions.
-------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee or other qualifying trustee (collectively, for purposes of this
Section 1505, the "Trustee") pursuant to Section 1504 in respect of the
Outstanding Securities of such series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest, but such
money need not be segregated from other funds except to the extent required by
law. Money so held in trust shall not be subject to the provisions of Article
Thirteen.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the money or U.S. Government
Obligations deposited pursuant to Section 1504 or the principal and interest
received in respect thereof.
Anything herein to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money
or U.S. Government Obligations held by it as provided in Section 1504 which in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent defeasance or covenant defeasance.
Section 1506. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1505 by reason of any order or judgment or any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Fifteen until such time as the Trustee or Paying Agent is permitted
to apply all such money in accordance with Section 1505; provided, however, that
if the Company makes any payment of principal of (and premium, if any) or
interest on any such Security following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or the Paying Agent.
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Section 1507. Qualifying Trustee.
------------------
Any trustee appointed pursuant to Section 1504 for the purpose of
holding trust funds deposited pursuant to that Section shall be appointed under
any agreement in form acceptable to the Trustee and shall provide to the Trustee
a certificate of such trustee, upon which certificate the Trustee shall be
entitled to conclusively rely, that all conditions precedent provided for herein
to the related defeasance or covenant defeasance have been complied with. If no
event shall the Trustee be liable for any acts or omissions of said trustee.
ARTICLE SIXTEEN
Immunity of Incorporators, Stockholders, Officers, Directors and
Employees
Section 1601. Exemption from Individual Liability.
-----------------------------------
No recourse under or upon any obligation, covenant or agreement of
this Indenture, or of any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer,
director, or employee, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, stockholders, officers,
directors, or employees, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Securities or implied therefrom;
and that any and all such personal liability, either at common law or in equity
or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer, director, or employee,
as such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom, are hereby expressly
waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of such Securities.
*****
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
MONSANTO COMPANY
By: _______________________________
Name:
Title:
[NAME OF TRUSTEE]
By: _______________________________
Name:
Title:
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<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On ____________, 199__, before me, ____________, Notary Public,
personally appeared __________________, personally known to me to be the person
whose name is subscribed to the within instrument and acknowledged to me that
he/she executed the same in his/her authorized capacity and that by his/her
signature on the instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
____________________________________
Notary Public
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<PAGE>
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On the _____ day of ___________, 199__, before me personally came
____________, to me known, who, being by me duly sworn, did depose and say that
he/she is _____________ of _______________________________, one of the companies
described in and which executed the foregoing instrument; that it was so affixed
by authority of the Board of Directors of said corporation, and that he/she
signed his/her name thereto by like authority of the Board of Directors of said
corporation.
____________________________________
Notary Public
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EXHIBIT 4.6
________________________________________________________________________________
DEPOSIT AGREEMENT
dated as of ________ __, ____
between
MONSANTO COMPANY
[NAME OF DEPOSITARY]
and
THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY SHARES DESCRIBED HEREIN
________________________________________________________________________________
<PAGE>
DEPOSIT AGREEMENT
WHEREAS it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of _____% Series ___ Preferred
Stock, par value $.01 per share, of MONSANTO COMPANY with the Depositary (as
hereinafter defined) for the purposes set forth in this Deposit Agreement and
for the issuance hereunder of Receipts (as hereinafter defined) evidencing
Depositary Shares (as hereinafter defined) in respect of the Stock (as
hereinafter defined) so deposited;
NOW, THEREFORE, in consideration of the premises contained herein and
such other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement and the
Receipts:
"Certificate" shall mean the certificate of designations filed with
the Secretary of State of Delaware establishing the Stock as a series of
preferred stock of the Company.
"Company" shall mean Monsanto Company, a Delaware corporation, and its
successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
"Depositary" shall mean __________, a _____________ , and any
successor as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing a
______ interest in a share of the Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary at
____________________, ____________________, ____________________, at which at
any particular time its depositary receipt business shall be administered.
-2-
<PAGE>
"Receipt" shall mean one of the depositary receipts issued hereunder,
whether in definitive or temporary form.
"Record Holder" as applied with respect to a Depositary Share shall
mean the person in whose name a Receipt evidencing such Depositary Share is
registered on the books of the Depositary maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean shares of the Company's _____% Series ___ Preferred
Stock, par value [no] per share.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF STOCK;
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
-----------------------------
shall be printed, lithographed, typewritten, mimeographed or engraved or
otherwise reproduced in any manner and shall be substantially in the form set
forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. As set forth in Section 2.09, all or a portion of
the Definitive Receipts may be represented by one or more book-entry receipts
(each, a "Book-Entry Receipt"). Pending the preparation of definitive Receipts,
the Depositary, upon the written order of the Company delivered in compliance
with Section 2.02, shall execute and deliver temporary Receipts which are
printed, litho graphed, typewritten, mimeographed or otherwise substantially of
the tenor of the definitive Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the persons executing such Receipts may determine, as evidenced by their
execution of such Receipts. If temporary Receipts are issued, the Company and
the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at an office described in the third paragraph of Section
2.02, without charge to the holder. Upon surrender for cancellation of any one
or more temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the
-3-
<PAGE>
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Deposit Agreement, and with respect to the Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary; provided, that such signature
--------
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly authorized
officer of the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by facsimile signature of a duly
authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Company or the Depositary or
required to comply with any applicable law or any regulation thereunder or with
the rules and regulations of any securities exchange upon which the Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Subject to any limitations set forth in a Receipt or in this Deposit
Agreement title to Depositary Shares evidenced by a Receipt which is properly
endorsed or accompanied by a properly executed instrument of transfer shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Depositary Share shall
-------- -------
be registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the Record
Holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions with respect to the Stock or to any notice provided for in this
Deposit Agreement and for all other purposes.
The Depositary shall not lend any Stock deposited hereunder.
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in
-------------------------------------------------------
Respect Thereof. Subject to the terms and conditions of this Deposit Agreement,
- ---------------
the Company may from time to time deposit shares of Stock under this Deposit
Agreement by delivery to the Depositary of a certificate or certificates
representing the Stock to be deposited. Such certificate or certificates
representing the Stock shall be properly endorsed or accompanied, if required by
the Depositary, by a duly executed instrument
-4-
<PAGE>
of transfer or endorsement, in form satisfactory to the Depositary, together
with all such certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement, and together with a written order
of the Company directing the Depositary to execute and deliver to, or upon the
written order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares relating to such deposited Stock.
All Stock deposited by the Company with the Depositary shall be held
by the Depositary at the Depositary's Office or at such other place or places as
the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates
representing the Stock deposited in accordance with the provisions of this
Section, together with the other documents required as above specified, and upon
recordation of the Stock so deposited on the books of the Company in the name of
the Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver, to or upon the
order of the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a Receipt or
Receipts for the number of Depositary Shares relating to the Stock so deposited
and registered in such name or names as may be requested by such person or
persons. The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
______ shares of Stock.
SECTION 2.03. Redemption of Stock. Whenever the Company shall elect
-------------------
to redeem shares of Stock in accordance with the provisions of the Certificate,
it shall (unless otherwise agreed in writing with the Depositary) mail notice to
the Depositary of such proposed redemption, by first class mail, postage
prepaid, not less than 40 or more than 70 days prior to the date fixed for
redemption of Stock in accordance with Section 3(b) of the Certificate. On the
date of such redemption, provided that the Company shall then have paid in full
to the Depositary the redemption price of the Stock to be redeemed, plus any
accrued and unpaid dividends thereon, the Depositary shall redeem the Depositary
Shares relating to such Stock. The Depositary shall mail notice of such
redemption and the proposed simultaneous redemption of the number of Depositary
Shares relating to the Stock to be redeemed, by first-class mail, postage
prepaid, not less than 30 and not more than 60 days prior to the date fixed for
redemption of such Stock and Depositary Shares (the "Redemption Date"), to the
Record Holders of the Depositary Shares to be so redeemed, at the addresses of
such holders as they appear on the records of the Depositary; provided, however,
-------- -------
neither failure to mail
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<PAGE>
any such notice to one or more such holders nor any defect in any notice to one
or more such holders shall affect the sufficiency of the proceedings for
redemption as to other holders. Each such notice shall state: (i) the Redemption
Date; (ii) the place or places where Receipts evidencing Depositary Shares are
to be surrendered for payment of the redemption price; (iii) the redemption
price; (iv) that dividends in respect of the Stock underlying the Depositary
Shares to be redeemed will cease to accrue and accumulate at the close of
business on such Redemption Date; (v) the number of Depositary Shares to be
redeemed and, if less than all the Depositary Shares held by any such holder are
to be redeemed, the number of such Depositary Shares held by such holder to be
so redeemed; and (vi) if a date other than the Redemption Date, the date from
and after which the Stock and Depositary Shares shall no longer be deemed to be
outstanding. In case less than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so redeemed shall be selected by lot, pro
rata or such other method as may be determined by the Depositary to be
equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
shares of Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the
Depositary Shares so called for redemption shall cease to accrue and accumulate,
the Depositary Shares being redeemed from such proceeds shall be deemed to be no
longer outstanding, all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall, to
the extent of such Depositary Shares, cease and terminate and, upon surrender in
accordance with such notice of the Receipts evidencing any such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed by the Depositary at a
redemption price per Depositary Share equal to the proportionate part of the
redemption price per share paid in respect of the shares of Stock plus all money
and other property, if any, paid with respect to such Depositary Shares,
including all amounts paid by the Company in respect of dividends which on the
Redemption Date have accumulated on the shares of Stock to be so redeemed and
have not theretofore been paid.
If less than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption; provided, however, that such Replacement Receipt
-------- -------
shall be issued only in denominations of whole Depositary Shares and cash will
be payable in respect of fractional interests.
SECTION 2.04. Registration of Transfer of Receipts. Subject to the
------------------------------------
terms and conditions of this Deposit Agreement, the Depositary shall register on
its books from time to time transfers of Depositary Shares upon any surrender of
the Receipt or Receipts evidencing such Depositary Shares by the holder in
person or by duly
-6-
<PAGE>
authorized attorney, properly endorsed or accompanied by a properly executed
instrument of transfer; provided, however, that except as otherwise provided
herein or in any Book-Entry Receipt, each Book-Entry Receipt may be transferred
only in whole and only to the Depositary, to another nominee of the Depositary,
to a successor depository, or to a nominee of a successor depository. Thereupon
the Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the Receipt or
Receipts surrendered and deliver such new Receipt or Receipts to or upon the
order of the person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of
----------------------------------------------------
Depositary Shares and Withdrawal of Stock. Upon surrender of a Receipt or
- -----------------------------------------
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
denominations requested, evidencing the aggregate number of Depositary Shares
evidenced by the Receipt or Receipts surrendered. The Depositary shall give
prompt notice of such action and the certificate numbers to the Registrar for
the purposes of recording such split-up or consolidation.
Unless the Depositary Shares have previously been called for
redemption, any holder of Depositary Shares may withdraw the number of whole
shares of Stock underlying such Depositary Shares and all money and other
property, if any, underlying such Depositary Shares by surrendering Receipts
evidencing such Depositary Shares at the Depositary's Office or at such other
offices as the Depositary may designate for such withdrawals. Thereafter,
without unreasonable delay, the Depositary shall deliver to such holder, or to
the person or persons designated by such holder as hereinafter provided, the
number of whole shares of Stock and all money and other property, if any,
underlying the Depositary Shares so surrendered for withdrawal, but holders of
such whole shares of Stock will not thereafter be entitled to deposit such Stock
hereunder or to receive Receipts evidencing Depositary Shares therefor. If a
Receipt or Receipts delivered by a holder to the Depositary in connection with
such withdrawal shall evidence in the aggregate a number of Depositary Shares in
excess of the number of Depositary Shares representing the number of whole
shares of Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of whole shares of Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Sections 2.04 and 3.02) upon his order, a new Receipt evidencing such excess
number of Depositary Shares. Delivery of the Stock and money and other property
being withdrawn may be made by delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate.
Stock delivered pursuant to the preceding paragraph may be endorsed
with or have incorporated in the text thereof such legend or recitals or changes
not inconsistent with the provisions of this Deposit Agreement as may be
required by the
-7-
<PAGE>
Depositary or required to comply with any applicable law or any regulation
thereunder or with the rules and regulations of any securities exchange upon
which the Stock may be listed or to conform with any usage with respect thereto,
or to indicate any special limitations or restrictions to which any particular
shares of Stock are subject.
If the Stock and the money and other property being withdrawn are to
be delivered to a person or persons other than the Record Holder of the
Depositary Shares evidenced by the Receipts being surrendered for withdrawal of
Stock, such holder shall execute and deliver to the Depositary a written order
so directing the Depositary and the Depositary may require that the Receipt or
Receipts surrendered by such holder for withdrawal of such shares of Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer in blank.
Delivery of the Stock and money and other property, if any, underlying
the Depositary Shares surrendered for withdrawal shall be made by the Depositary
at the Depositary's Office, except that, at the request, risk and expense of the
holder surrendering such Depositary Shares and for the account of such holder,
such delivery may be made at such other place as may be designated by such
holder.
SECTION 2.06. Limitations on Execution and Delivery, Transfer,
------------------------------------------------
Surrender and Exchange of Receipts. As a condition precedent to the execution
- ----------------------------------
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with the rules and regulations of any governmental body,
the New York Stock Exchange, any applicable self regulatory body or such
regulations, if any, as the Depositary or the Company may establish consistent
with the provisions of this Deposit Agreement.
The delivery of Receipts against Stock may be suspended, the
registration of transfer of Depositary Shares may be refused and the
registration of transfer, surrender or exchange of outstanding Depositary Shares
may be suspended (i) during any period when the register of stockholders of the
Company is closed or (ii) if any such action is deemed necessary or advisable by
the Depositary, any of the Depositary's Agents or the Company at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, New York Stock Exchange or under any provision
of this Deposit Agreement.
SECTION 2.07. Lost Receipts, etc. In case any Receipt shall be
-------------------
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and
-8-
<PAGE>
deliver a Receipt of like form and tenor in exchange and substitution for such
mutilated Receipt or in lieu of and in substitution for such destroyed, lost or
stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of
evidence satisfactory to the Depositary of such destruction or loss or theft of
such Receipt, of the authenticity thereof and of his or her ownership thereof
and (ii) the holder's furnishing of the Depositary with reasonable
indemnification satisfactory to such Depositary and the Company.
SECTION 2.08. Cancellation and Destruction of Surrendered Receipts.
----------------------------------------------------
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
canceled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so canceled.
SECTION 2.09. Book-Entry Receipts. (a) All or a portion of the
-------------------
Receipts may be represented by one or more Book-Entry Receipts deposited with
[the Depository Trust Company] (the "Depository") and registered in the name of
[Cede & Co.], a nominee of the Depository. Each Book-Entry Receipt shall bear
such legend or legends as may be required by the Depository in order for it to
accept the Depositary Shares for its book-entry settlement system. Except as
provided for in Section 2.09(b) hereof, no person acquiring Receipts with book-
entry settlement through the Depository shall receive or be entitled to receive
definitive Receipts. Ownership of beneficial interests in the Depositary Shares
shall be shown on, and the transfer of such ownership shall be affected through,
records maintained by (i) the Depository or its nominee for each Book-Entry
Receipt, or (ii) institutions that have accounts with the Depository (such
institution, with respect to a Depositary Share in its account, a
"Participant").
(b) If subsequently (i)(1) the Depository notifies the Company in
accordance with Section 7.04 that it is unwilling or unable to continue as a
depository for such Depositary Shares or (2) at any time the Depository ceases
to be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when the Depository is required to be so registered in order
to act as such depository and (ii) the Company does not appoint a successor
within 90 days, the Depositary shall provide written instructions to the
Depository to deliver to the Depositary for cancellation each Book-Entry
Receipt, and the Company shall instruct the Depository to deliver to the
Depositary definitive Receipts in physical form evidencing such Depositary
Shares. Such definitive Receipts shall be in the form amended hereto as Exhibit
A with appropriate insertions, modification and omissions, as provided above.
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<PAGE>
ARTICLE III
CERTAIN OBLIGATIONS OF THE HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
-------------------------------------------------
holder of a Depositary Share may be required from time to time to file such
proof of residence, or other matters or other information, to obtain such
guarantees of signature, to execute such certificates and to make such
representations and warranties as the Depositary or the Company may deem
reasonably necessary or proper. The Depositary or the Company may withhold the
delivery, or delay the registration of transfer, redemption or exchange, of any
Depositary Share or the withdrawal of any Stock underlying Depositary Shares or
the distribution of any dividend or other distribution or the sale of any rights
or of the proceeds thereof until such proof or other information is filed or
such certificates are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges. Holders
----------------------------------------------
of Depositary Shares shall be obligated to make payments to the Depositary of
certain charges and expenses as provided in Section 5.07. Registration of
transfer of any Depositary Share or any withdrawal of Stock and delivery of all
money or other property, if any, underlying such Depositary Share may be refused
until any such payment due is made, and any dividends or other distributions may
be withheld or all or any part of the Stock or other property relating to such
Depositary Shares and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder prior
to such sale), and such dividends or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Depositary Share remaining liable for any deficiency.
SECTION 3.03. Warranty as to Stock. The Company hereby represents
--------------------
and warrants to the Depositary that the Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Stock and the issuance of the Receipts.
SECTION 3.04. Warranty as to Receipts. The Depositary hereby
-----------------------
represents and warrants that the Receipts, when issued, will be legal, valid and
binding obligations of the Depositary, enforceable against the Depositary in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
Such representation and warranty shall survive the deposit of the Stock and the
issuance of the Receipts.
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<PAGE>
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
------------------
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to the Record
Holders of Depositary Shares on the record date fixed pursuant to Section 4.04
such amounts of such dividend or distribution as are, as nearly as practicable,
in proportion to the respective numbers of Depositary Shares held by such
holders; provided, however, that in case the Company or the Depositary shall be
-------- -------
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the amount
made available for distribution or distributed in respect of Depositary Shares
shall be reduced accordingly. The Depositary shall distribute or make available
for distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next succeeding distribution to record holders of Receipts.
SECTION 4.02. Distributions Other than Cash. Whenever the Depositary
-----------------------------
shall receive any distribution other than cash with respect to the Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to the Record
Holders of Depositary Shares on the record date fixed pursuant to Section 4.04
such amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares held
by such holders, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution. If in the opinion of the
Depositary such distribution cannot be made proportionately among such Record
Holders, or if for any other reason (including any requirement that the Company
or the Depositary withhold an amount on account of taxes or governmental
charges) the Depositary deems, after consultation with the Company, such
distribution not to be feasible, the Depositary may, with the approval of the
Company, adopt such method as it deems equitable and practicable for the purpose
of effecting such distribution, including the sale (at public or private) of the
securities or property thus received, or any part thereof, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall, subject to Sections 3.01 and 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to the Record Holders of
Depositary Shares entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any distribution of
such securities unless the Company shall have provided an opinion of counsel to
the effect that such securities have been registered under the Securities Act or
do not need to be registered.
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<PAGE>
SECTION 4.03. Subscription Rights, Preferences or Privileges. If the
----------------------------------------------
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the Record Holders of Depositary Shares in such manner as the Depositary may
determine, either by the issue to such Record Holders of warrants representing
such rights, preferences or privileges or by such other method as may be
approved by the Depositary in its discretion with the approval of the Company;
provided, however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Depositary Shares by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Depositary Shares who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is not feasible
to make such rights, preferences or privileges available), may, if applicable
laws or the terms of such rights, preferences or privileges permit such
transfer, sell such rights, preferences or privileges at public or private sale,
at such place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed by the Depositary to the Record Holders of Depositary Shares
entitled thereto as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of such rights,
preferences or privileges unless the Company shall have provided an opinion of
counsel to the effect that such rights, preferences or privileges have been
registered under the Securities Act or do not need to be registered.
If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders of
Depositary Shares to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Depositary Shares any right, preference or privilege to subscribe
for or to purchase any securities unless and until such a registration statement
shall have become effective, or unless the offering and sale of such securities
to such holders are exempt from registration under the provision of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights,
-12-
<PAGE>
preferences or privileges to be made available to the holders of Depositary
Shares, the Company agrees with the Depositary that the Company will use its
best efforts to take such action or obtain such authorization, consent or permit
sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
----------------------------------------------------
Holders of Depositary Shares. (i) Whenever any cash dividend or other cash
- ----------------------------
distribution shall become payable or any distribution other than cash shall be
made, (ii) if rights, preferences or privileges shall at any time be offered,
with respect to the Stock, (iii) whenever the Depositary shall receive notice of
(a) any meeting at which holders of Stock are entitled to vote or of which
holders of Stock are entitled to notice, or (b) any election by the Company to
redeem any shares of Stock, or (iv) whenever the Depositary and the Company
shall decide it is appropriate, the Depositary shall in each such instance fix a
record date (which shall be the same date as the record date fixed by the
Company with respect to the Stock) for the determination of the holders of
Depositary Shares who shall be entitled to receive a distribution in respect of
such dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, or to give instructions for the exercise of voting
rights at any such meeting, or who shall be entitled to receive notice of such
meeting.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
-------------
at which the holders of the Stock are entitled to vote, the Depositary shall, as
soon as practicable thereafter, mail to the Record Holders of Depositary Shares
a notice which shall contain (i) such information as is contained in such notice
of meeting and (ii) a statement informing holders of Depositary Shares that they
may instruct the Depositary as to the exercise of the voting rights pertaining
to the amount of Stock underlying their respective Depositary Shares and a brief
statement as to the manner in which such instructions may be given. Upon the
written request of the holders of Depositary Shares on the record date
established in accordance with Section 4.04, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of
Stock underlying the Depositary Shares as to which any particular voting or
consent instructions are received. The Company hereby agrees to take all action
which may be deemed necessary by the Depositary in order to enable the
Depositary to vote such Stock or cause such Stock to be voted. In the absence
of specific instructions from the holder of a Depositary Share, the Depositary
will abstain from voting (but, at its discretion, not from appearing at any
meeting held with respect to such Stock unless directed to the contrary by the
holders of all the Depositary Shares) to the extent of the Stock underlying the
Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
------------------------------------------
Reclassifications, Recapitalizations, etc. Upon any change in par or
- ------------------------------------------
liquidation value,
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<PAGE>
split-up, combination or any other reclassification of the Stock, or upon any
recapitalization, reorganization, merger, amalgamation or consolidation
affecting the Company or to which it is a party, the Depositary may in its
discretion, with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments in (a) the fraction of an interest in one
share of Stock underlying one Depositary Share and (b) the ratio of the
redemption price per Depositary Share to the redemption price of a share of the
Stock, in each case as may be necessary to reflect fully the effects of such
change in par or liquidation value, split-up, combination or other
reclassification of the Stock, or of such recapitalization, reorganization,
merger, amalgamation or consolidation and (ii) treat any securities which shall
be received by the Depositary in exchange for or upon conversion of or in
respect of the Stock as new deposited securities so received in exchange for or
upon conversion of or in respect of such Stock. In any such case the Depositary
may in its discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding Receipts
to be exchanged for new Receipts specifically describing such new deposited
securities.
Anything to the contrary herein or in the Receipt notwithstanding,
holders of Receipts shall have the right from and after the effective date or
any such change in par or stated value, split-up, combination or other
reclassification of the Stock or any such recapitalization, reorganization,
merger, amalgamation, consolidation or sale, to the extent that holders of Stock
had the right, prior to or on the applicable effective date, to convert,
exchange or surrender shares of Stock into or for other stock, securities,
property or cash, to surrender such Receipts to the Depositary with instructions
to convert, exchange or surrender the Stock represented thereby only into or
for, as the case may be, the kind and amount of shares of stock and other
securities and property and cash into which the Stock represented by such
Receipts has been converted or for which such Stock might have been exchanged or
surrendered immediately prior to the effective date of such transaction.
SECTION 4.07. Delivery of Reports. The Depositary will forward to
-------------------
Record Holders of Receipts, at their respective addresses appearing in the
Depositary's books, all notices, reports and communications received from the
Company which are delivered to the Depositary and which the Company is required
to furnish to the holders of Stock or Receipts.
SECTION 4.08. List of Holders. Promptly upon request from time to
---------------
time by the Company, the Depositary shall furnish to it a list, as of a recent
date, of the names, addresses and holdings of Depositary Shares of all persons
in whose names Depositary Shares are registered on the books of the Depositary
or Registrar, as the case may be.
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<PAGE>
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
------------------------------------------------------
the Depositary; Registrar. Upon execution of this Deposit Agreement, the
- -------------------------
Depositary shall maintain at the Depositary's Offices or at any Registrar's
Office, facilities for the execution and delivery, surrender and exchange of
Receipts and the registration and registration of transfer of Depositary Shares
and at the offices of the Depositary's Agents, if any, facilities for the
delivery, surrender and exchange of Receipts and the registration of transfer of
Depositary Shares, all in accordance with the provisions of this Deposit
Agreement. The Depositary shall have complete access to all books and records
maintained on the Company's behalf at such Depositary's Offices or at such
Registrar's Offices.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Depositary Shares, which books at
all reasonable times shall be open for inspection by the Record Holders of
Depositary Shares; provided, that any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a proper
purpose reasonably related to such person's interest as an owner of Depositary
Shares.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Stock underlying such Depositary Shares shall be listed on the New York Stock
Exchange, the Depositary may, with the approval of the Company, appoint a
Registrar for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substitute registrar appointed by the Depositary upon the request or with
the approval of the Company. If such Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at
the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
--------------------------------------------
Depositary, the Depositary's Agents, any Registrar or the Company. Neither the
- -----------------------------------------------------------------
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder Depositary Share if by reason of any provision
of any present
-15-
<PAGE>
or future law, or regulation thereunder, of the United States of America or of
any other governmental authority or, in the case of the Depositary, any
Depositary's Agent or any Registrar, by reason of any provision, present or
future, of the Company's Certificate of Incorporation (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, any Depositary's Agent, any
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing which the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary's Agent,
any Registrar or the Company incur any liability to any holder of a Depositary
Share (i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which the terms of this Deposit Agreement
provide shall or may be done or performed, or (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement
except, in the case of any such exercise or failure to exercise discretion not
caused as aforesaid, if caused by the gross negligence or willful misconduct of
the party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
-------------------------------------------------------
any Registrar and the Company. Neither the Depositary nor any Depositary's
- -----------------------------
Agent nor any Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Depositary
Shares other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of the Stock, the Depositary
Shares or the Receipts which in its opinion may involve it in expense or
liability unless indemnity satisfactory to it against all expense and liability
be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Stock for deposit, any holder of a Depositary Share
or any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote, as long as any such action or non-action is in good faith.
The Depositary undertakes and shall cause any Registrar to undertake, to perform
such duties and only such duties as are specifically set forth in this Deposit
Agreement using its reasonable best efforts and in good faith. The parties
hereto acknowledge that no implied covenants or obligations
-16-
<PAGE>
shall be read into this Deposit Agreement against the Depositary or any
Registrar. The Depositary will indemnify the Company against any liability which
may arise out of acts performed or omitted by the Depositary or its agents due
to its or their gross negligence or bad faith. The Depositary, any Depositary's
Agents, any Registrar and the Company may own and deal in any class of
securities of the Company and its affiliates and in Depositary Shares. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
------------------------------------------------------
of Successor Depositary. The Depositary may at any time resign as Depositary
- -----------------------
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case the Depositary acting hereunder shall at any time resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed within 60
days after delivery of such notice, the resigning or removed Depositary may
petition any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment of
all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Stock and any moneys or property held hereunder to
such successor and shall deliver to such successor a list of the Record Holders
of all outstanding Depositary Shares. Any successor Depositary shall promptly
mail notice of its appointment to the Record Holders of Depositary Shares.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act. Such successor
Depositary may authenticate
-17-
<PAGE>
the Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. Corporate Notices and Reports. The Company agrees that
-----------------------------
it will deliver to the Depositary and the Depositary will, promptly after
receipt thereof, transmit to the Record Holder of Depositary Shares, in each
case at the address furnished to it pursuant to Section 4.08, all notices,
reports and communications (including without limitation financial statements)
required by law, the rules of any national securities exchange upon which the
Stock, the Depositary Shares or the Receipts are listed or by the Company's
Certificate of Incorporation (including the Certificate) to be furnished by the
Company to holders of the Stock. Such transmission will be at the Company's
expense and the Company will provide the Depositary with such number of copies
of such documents as the Depositary may reasonably request.
SECTION 5.06. Indemnification by the Company. The Company shall
------------------------------
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with this Deposit Agreement and the
Depositary Shares (a) by the Depositary, any Registrar or any of their
respective agents (including any Depositary's Agent), except for any liability
arising out of negligence, willful misconduct or bad faith on the respective
parts of any such person or persons, or (b) by the Company or any of its agents,
or (ii) the offer, sale or registration of the Depositary Shares or the Stock
pursuant to the provisions hereof. The obligations of the Company set forth in
this Section 5.06 shall survive any succession of any Depositary, Registrar or
Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all
--------------------
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Stock and the
initial issuance of the Receipts, any redemption of the Stock at the option of
the Company and any withdrawals of Stock by holders of Depositary Shares. All
other transfer and other taxes and governmental charges shall be at the expense
of holders of Depositary Shares. The Depositary may refuse to effect any
transfer of a Receipt or any withdrawal of Stock evidenced hereby until all such
taxes and charges with respect to such receipt or stock are paid by the holders
thereof. If, at the request of a holder of a Depositary Share, the Depositary
incurs charges or expenses for which it is not otherwise liable hereunder, such
holder will be liable for such charges and expenses. All other charges and
expenses of the Depositary, any Depositary's Agent hereunder and any Registrar
(including, in each case, fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such charges and expenses. The Depositary
-18-
<PAGE>
shall present its statement for charges and expenses to the Company once every
three months or at such other intervals as the Company and the Depositary may
agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any provisions
---------
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
-------- -------
shall materially and adversely alter the rights of the existing holders of
Depositary Shares shall be effective unless such amendment shall have been
approved by the holders of at least a majority of the Depositary Shares then
outstanding. Every holder of an outstanding Depositary Share at the time any
such amendment becomes effective shall be deemed, by continuing to hold such
Depositary Share, to consent and agree to such amendment and to be bound by this
Deposit Agreement as amended thereby. In no event shall any amendment impair
the right, subject to the provisions of Sections 2.05 and 2.06 hereof, of any
owner of any Depositary Shares to surrender any Receipt evidencing such
Depositary Shares to the Depositary with instructions to deliver to the holder
the Stock and all money and other property, if any, represented thereby, except
in order to comply with mandatory provisions of applicable law or the rules and
regulations of any governmental body, agency or commission, the depository for
any Book-Entry Receipts, the New York Stock Exchange or any applicable stock
exchange.
SECTION 6.02. Termination. This Deposit Agreement may be terminated
-----------
by the Company or the Depositary only after (i) all outstanding Depositary
Shares shall have been redeemed and any accumulated and unpaid dividends on the
Stock represented by the Depositary Shares, together with all other moneys and
property, if any, to which holders of the related Receipts are entitled under
the terms of such Receipts or this Deposit Agreement, have been paid or
distributed as provided in this Deposit Agreement or provision therefor has been
duly made pursuant to Section 2.03, (ii) all the Stock has been withdrawn
pursuant to Section 2.05 or (iii) there shall have been made a final
distribution in respect of the Stock in connection with any liquidation,
dissolution or winding up of the Company and such distribution shall have been
distributed to the holders of Receipts pursuant to Section 4.01 or 4.02, as
applicable. Whenever the Deposit Agreement has been terminated pursuant to
(iii) above, the Depositary will mail notice of such termination to the record
holders of all Depositary Shares then outstanding at least 30 days prior to the
date fixed in that notice for termination of the Deposit Agreement. If any
Depositary Shares remain outstanding after the date of termination, the
Depositary thereafter will discontinue the transfer of Depositary Shares, will
suspend the distribution of dividends to the owners thereof, and will not give
any further notices
-19-
<PAGE>
(other than notice of such termination) or perform any further acts under this
Deposit Agreement, except that the Depositary will continue (i) to collect
dividends on the Stock and any other distributions with respect thereto and (ii)
to deliver or cause to be delivered shares of Stock, together with such
dividends and distributions, or principal and interest, and the net proceeds of
any sales of rights, preferences, privileges or other property (other than real
property) in exchange for Depositary Shares surrendered. At any time after the
expiration of three years from the date of termination, the Depositary may sell
the Stock then held by it at a public or private sale, at such place or places
and upon such terms as it deems proper and may thereafter hold the net proceeds
of such sale, without liability for interest, for the pro rata benefit of the
owners of the Depositary Shares which have not theretofore been surrendered.
Subject to applicable escheat laws, any monies set aside by the Company in
respect of any payment with respect to the Stock represented by the Depositary
Shares, or dividends thereon, and unclaimed at the end of three years from the
date upon which such payment is due and payable shall revert to the general
funds of the Company, after which reversion the holders of such Depositary
Shares shall look only to the general funds of the Company for payment thereof.
Upon the termination of this Deposit Agreement, the parties hereto
shall be discharged from all obligations under this Deposit Agreement except for
their respective obligations under Sections 5.03, 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Deposit Agreement may be executed
------------
in any number of counterparts and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit Agreement
----------------------------
is for the exclusive benefit of the parties hereto and their respective
successors hereunder and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of
------------------------
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
-20-
<PAGE>
SECTION 7.04. Notices. Any and all notices to be given to the
-------
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or telegram or
telex confirmed by letter, addressed to the Company at 800 North Lindbergh
Boulevard, St. Louis, Missouri 63167, telephone (314) __________, facsimile
(314) __________, Attention: ____________, or at any other address of which the
Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram, telecopy or telex confirmed
by letter, addressed to the Depositary at the Depositary's Office,
at________________________________, telephone (___) _____-_________, fascimile
(___) _____-_________, Attention: ___________, or at any other address and to
the attention of any other person of which the Depositary shall have notified
the Company in writing.
Any and all notices to be given to any Record Holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, telegram or telex (and
confirmed by letter in the case of a telegram or telex), to such Record Holder
at the address of such Record Holder as such address appears on the books of the
Depositary or if such holder shall have filed with the Depositary a written
request that notices intended for such holder be mailed to some other address,
at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it from
the other or from any holder of a Depositary Share, notwithstanding that such
telegram or telex message shall not subsequently be confirmed by letter or as
aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
-------------------
time, with the prior approval of the Company, appoint Depositary's Agents to act
in any respect for the Depositary for the purposes of this Deposit Agreement and
may at any time appoint additional Depositary's Agents and vary or terminate the
appointment of such Depositary's Agents. The Depositary will notify the Company
of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
-------------------------------
Depositary Shares from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the Receipts
evidencing such Depositary Shares by acceptance of delivery thereof.
-21-
<PAGE>
SECTION 7.07. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND EACH RECEIPT
-------------
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
-------------------------------
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agents, if any, by any holder of
a Depository Share.
SECTION 7.09. Headings. The headings of articles and sections in
--------
this Deposit Agreement and in the form of Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as part of
this Deposit Agreement or the Receipts or as having any bearing upon the meaning
or interpretation of any provision contained herein or in the Receipts.
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Depositary Shares shall become parties hereto by and upon acceptance
by them of delivery of Receipts evidencing such Depositary Shares and issued in
accordance with the terms hereof.
MONSANTO COMPANY
By________________________________
[Name and Title]
_________________________________,
As Depositary
By________________________________
Authorized Officer
-22-
<PAGE>
EXHIBIT A
FORM OF DEPOSITARY RECEIPT
FOR DEPOSITARY SHARES
[GENERAL FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING __% SERIES ____ PREFERRED STOCK
MONSANTO COMPANY
Incorporated under the laws of the State of Delaware
This Depositary Receipt is transferable
in New York, New York
______________________________, as Depositary, (the "Depositary"),
hereby certifies that ______________________________ is the registered owner of
____________________ Depositary Shares ("Depositary Shares"), each Depositary
Share representing an interest in one share of ____% Series ____ Preferred
Stock, par value $.01 per share (the "Stock"), of Monsanto Company, a Delaware
corporation (the "Company"), on deposit with the Depositary, subject to the
terms and entitled to the benefits of the Deposit Agreement dated as of
____________________, 199_ (the "Deposit Agreement"), between the Company, the
Depositary and all holders from time to time of Depositary Receipts. By
accepting this Depositary Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall have been
executed
A-1
<PAGE>
by the Depositary by the manual signature of a duly authorized officer or, if
executed in facsimile by the Depositary, countersigned by a Registrar in respect
of the Depositary Receipts by the manual signature of a duly authorized officer
thereof.
Dated: ______________ Depositary
By: ____________________________
Authorized Officer
Registrar
By: ____________________________
Authorized Officer
A-2
<PAGE>
[GENERAL FORM OF REVERSE OF RECEIPT]
MONSANTO COMPANY
MONSANTO COMPANY WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT HOLDER WHO SO
REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE PORTIONS
OF THE CERTIFICATE OF INCORPORATION ESTABLISHING THE POWERS, DESIGNATIONS,
PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL RIGHTS OF
EACH CLASS OF STOCK OR SERIES THEREOF WHICH MONSANTO COMPANY IS AUTHORIZED TO
ISSUE AND THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES
AND/OR RIGHTS OF SUCH CLASS. ANY SUCH REQUEST IS TO BE ADDRESSED TO MONSANTO
COMPANY, 800 NORTH LINDBERGH BOULEVARD, ST. LOUIS, MISSOURI 63167, ATTENTION:
______________.
The following abbreviations, when used in the inscription on the face
of this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _______________ Custodian ________________
(Cust) (Minor)
under the Uniform Gifts to Minors Act ___________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, ____________________ hereby sell(s), assign(s) and
transfer(s) unto ______________________________
(Please insert social security or other
identifying number of assignee)
________________________________________________________________________
Please print or typewrite name and address including postal zip code of assignee
A-3
<PAGE>
_____________________ Depositary Shares represented by the within receipt and
all rights thereunder, and do hereby irrevocably constitute and appoint
_________________ Attorney to transfer said Depositary Shares on the books of
the within-named Depositary with full power of substitution in the premises.
Dated: ____________________
______________________________
NOTICE. The signature(s) to this
assignment must correspond with the
name(s) as written upon the face of
this instrument in every
particular, without alteration or
enlargement or any change whatever.
A-4
<PAGE>
EXHIBIT 4.7
CERTIFICATE OF DESIGNATIONS
OF THE
____% SERIES __ [CONVERTIBLE] PREFERRED STOCK
(Par Value $.01 Per Share)
OF
MONSANTO COMPANY
------------
Pursuant to Section 151 of the
General Corporation Law of the State of Delaware
-----------
The undersigned duly authorized officer of Monsanto Company, a
corporation organized and existing under the General Corporation Law of the
State of Delaware (the "Company"), in accordance with the provisions of Section
103 thereof, and pursuant to Section 151 thereof, DOES HEREBY CERTIFY:
That the Certificate of Incorporation of the Company provides that the
Company is authorized to issue 10,000,000 shares of Preferred Stock, no par
value per share, issuable in series by the Board. The Company has authorized
and reserved for issuance ___________ shares of Series A Junior Participating
Preferred Stock ("Series A Preferred Stock"); and
That pursuant to the authority conferred upon the Board of Directors
(the "Board") by the Certificate of Incorporation of the Company, the Board on
_________ __, 199_, approved the creation, issuance and the voting powers of
shares of Preferred Stock to be issued in one or more series as determined by a
duly authorized committee of the Board, and, on _______________, 199_ such duly
authorized committee of the Board adopted the following resolution creating a
series of ________________ shares of Preferred Stock designated as set forth
below:
RESOLVED, that pursuant to the authority expressly granted to and
vested in the Board by provisions of the Certificate of Incorporation of the
Company[, as amended] (the "Certificate of Incorporation") and the General
Corporation Law of the State of Delaware, the issuance of a series of Preferred
Stock, which shall consist of ________________ shares of the ____________
shares of Preferred Stock which the Company now has authority to issue, be, and
the same hereby is, authorized, and this
<PAGE>
committee of the Board hereby fixes the powers, designations, preferences and
relative, participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, of the shares of such
series (in addition to the powers, designations, preferences and relative,
participating, optional or other special rights, and the qualifications,
limitations or restrictions thereof, set forth in the Certificate of
Incorporation which may be applicable to the Preferred Stock) authorized by this
resolution as follows:
1. Designation and Rank. The designation of such series of Preferred
Stock authorized by this resolution shall be ____% Series __ [Convertible]
Preferred Stock (the "Series __Preferred Stock"). The maximum number of shares
of Series __ Preferred Stock shall be _________________. Shares of the Series
__ Preferred Stock shall have a liquidation preference of $_____ per share. The
Series __Preferred Stock shall rank prior to the Company's Common Stock and to
all other classes and series of equity securities of the Company now or
hereafter authorized, issued or outstanding (the Common Stock and such other
classes and series of equity securities collectively may be referred to herein
as the "Junior Stock"), other than any classes or series of equity securities of
the Company ranking on a parity with (the "Parity Stock") or senior to (the
"Senior Stock") the Series __ Preferred Stock as to dividend rights and rights
upon liquidation, winding up or dissolution of the Company. The Series __
Preferred Stock shall be junior to all outstanding debt of the Company. The
Series __ Preferred Stock shall be [senior to] [on a parity with] the Series __
Preferred Stock as to both payments of dividends and distribution of assets upon
liquidation, dissolution and winding up of the Company. The Series __ Preferred
Stock shall be subject to creation of Senior Stock, Parity Stock and Junior
Stock to the extent not expressly prohibited by the Company's Certificate of
Incorporation.
2. Cumulative Dividends; Priority.
(a) Payment of Dividends. The holders of record of shares of
Series __ Preferred Stock shall be entitled to receive, when, as, and if
declared by the Board, out of funds legally available therefor, cumulative
cash dividends at the rate of _____% per annum per share, which shall
accrue from the original issue date and be payable quarterly in arrears on
the first day of [March, June, September and December] in each year,
commencing on _______________, ____, or, if such day is a non-business day,
on the next business day (each of such dates, a "Dividend Payment Date").
Each declared dividend shall be payable to holders of record as they appear
on the stock books of the Company at the close of business on such record
dates, not more than 60 calendar days preceding the payment dates therefor,
as are determined by the Board or a duly authorized committee thereof (each
of such dates, a "Record Date"). Quarterly dividend periods (each a
"Dividend Period") shall commence on and include the first day of [March,
June, September and December] of each year and shall end on and include the
date next preceding the next following Dividend Payment Date.
-2-
<PAGE>
The amount of dividends payable per share for each full Dividend
Period shall be computed by dividing by four the amount determined by
applying the _____% annual dividend rate to the $_____ liquidation
preference of such share. Dividends on the Series __ Preferred Stock shall
accrue day by day. Dividends shall be cumulative. The initial quarterly
dividend payable on _______________, ____ and the amount of any dividend
payable for any other period shorter than a full Dividend Period shall be
computed on the basis of a 360-day year composed of twelve 30-day months
and the actual number of days elapsed in such period.
(b) Priority as to Dividends. No full dividends shall be
declared or paid or set apart for payment on Preferred Stock of any series
ranking, as to dividends, on a parity with or junior to the Series __
Preferred Stock for any period unless full dividends for the immediately
preceding Dividend Period on the Series __ Preferred Stock (including any
accumulation in respect of unpaid dividends from prior Dividend Periods)
have been or contemporaneously are declared and paid (or declared and a sum
sufficient for the payment thereof set apart for such payment). When
dividends are not paid in full (or declared and a sum sufficient for such
full payment is not so set apart) upon the Series __ Preferred Stock and
any other Preferred Stock ranking on a parity as to dividends with the
Series __ Preferred Stock, dividends declared upon shares of Series __
Preferred Stock and such other Preferred Stock ranking on a parity as to
dividends shall be declared pro rata, so that the amount of dividends
declared per share on the Series __ Preferred Stock and such other
Preferred Stock shall bear in all cases to each other the same ratio that
accrued dividends for the then-current Dividend Period per share on the
shares of Series __ Preferred Stock (including any accumulation in respect
of unpaid dividends for prior Dividend Periods) and accrued dividends,
including required or permitted accumulations, if any, of such other
Preferred Stock, bear to each other.
Unless full dividends on the Series __ Preferred Stock have been
declared and paid or set apart for payment for the immediately preceding
Dividend Period (including any accumulation in respect of unpaid dividends
for prior Dividend Periods) (i) no cash dividend or other distribution
(other than in shares of Junior Stock) shall be declared or paid or set
aside for payment on the Junior Stock, (ii) the Company may not, directly
or indirectly, repurchase, redeem or otherwise acquire any shares of its
Junior Stock (or any moneys paid to or made available for a sinking fund
for the redemption of any shares except by conversion into or exchange for
Junior Stock) and (iii) the Company may not, directly or indirectly,
repurchase, redeem or otherwise acquire any shares of Series __ Preferred
Stock or Parity Stock (or any moneys paid to or made available for a
sinking fund for the redemption of any shares of any such stock) otherwise
than pursuant to a pro rata offer to purchase or a concurrent redemption
-3-
<PAGE>
of all, or a pro rata portion, of the outstanding shares of Series __
Preferred Stock and Parity Stock (except by conversion into or exchange for
Junior Stock).
The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of stock of the
Company if, under the preceding paragraph, the Company would be prohibited
from purchasing or otherwise acquiring such shares at such time and in such
manner.
3. Redemption.
(a) General. The shares of the Series __ Preferred Stock will
not be redeemable prior to ________________, 19__. At any time on or after
__________________, 19__, subject to the applicable restrictions set forth
in this Section 3 and applicable law, the shares of Series __ Preferred
Stock may be redeemed, in whole or in part, at the election of the Company,
upon notice as provided in Section 3(b) hereof, by resolution of its Board
of Directors, at any time or from time to time, at the redemption price of
$_____ per share, plus, in each case, an amount equal to all accrued and
unpaid dividends to the date fixed for redemption.
If less than all the outstanding shares of Series __ Preferred
Stock are to be redeemed, the Company will select those to be redeemed pro
rata, by lot or by a substantially equivalent method. On and after the
redemption date, dividends shall cease to accrue on the shares of Series __
Preferred Stock called for redemption, and they shall be deemed to cease to
be outstanding, provided that the redemption price (including any accrued
and unpaid dividends to the date fixed for redemption) has been duly paid
or provided for.
(b) Notice of Redemption. Notice of any redemption, setting
forth (i) the date and place fixed for said redemption, (ii) the redemption
price and (iii) a statement that dividends on the shares of Series __
Preferred Stock to be redeemed will cease to accrue and accumulate on such
redemption date shall be mailed, postage prepaid, at least 30 days but not
more than 60 days prior to said redemption date to each holder of record of
the Series __ Preferred Stock to be redeemed at his or her address as the
same shall appear on the books of the Company. If less than all the shares
of the Series __ Preferred Stock owned by such holder are then to be
redeemed, the notice shall specify the number of shares thereof which are
to be redeemed and the numbers of the certificates representing such
shares.
If such notice of redemption shall have been so mailed and if on
or before the redemption date specified in such notice all funds necessary
for such redemption shall have been set aside by the Company separate and
apart from its
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other funds in trust for the account of the holders of the shares of the
Series __ Preferred Stock so to be redeemed (so as to be and continue to be
available therefor), then, on and after said redemption date,
notwithstanding that any certificate for shares of the Series __ Preferred
Stock so called for redemption shall not have been surrendered for
cancellation, the shares of the Series __ Preferred Stock so called for
redemption shall be deemed to be no longer outstanding, the dividends
thereon shall cease to accrue, and all rights with respect to such shares
of the Series __ Preferred Stock so called for redemption shall forthwith
cease and terminate, except only the right of the holders thereof to
receive out of the funds so set aside in trust the amount payable on
redemption thereof, but without interest, upon surrender (and endorsement
or assignment for transfer, if required by the Company) of their
certificates.
However, if such notice of redemption shall have been so mailed,
and if prior to the date of redemption specified in such notice all said
funds necessary for such redemption shall have been irrevocably deposited
in trust for the account of the holders of the shares of the Series __
Preferred Stock to be redeemed (so as to be and continue to be available
therefor) with a bank or trust company named in such notice doing business
in the City of New York and having capital surplus and undivided profits of
at least $50,000,000, thereupon and without awaiting the redemption date,
all shares of the Series __ Preferred Stock with respect to which such
notice shall have been so mailed, and such deposit shall have been so made
shall be deemed to be no longer outstanding and all rights with respect to
such shares of the Series __ Preferred Stock shall forthwith upon such
deposit in trust cease and terminate, except only the right of the holders
thereof on or after the redemption date to receive from such deposit the
amount payable upon the redemption, but without interest, upon surrender
(and endorsement or assignment to transfer, if required by the Company) of
their certificates.
In case the holders of shares of the Series __ Preferred Stock
which shall have been redeemed shall not within two years (or any longer
period if required by law) after the redemption date claim any amount so
deposited in trust for the redemption of such shares, such bank or trust
company shall, upon demand and if permitted by applicable law, pay over to
the Company any such unclaimed amount so deposited with it, and shall
thereupon be relieved of all responsibility in respect thereof, and
thereafter the holders of such shares shall, subject to applicable escheat
laws, look only to the Company for payment of the redemption price thereof,
but without interest from the date of redemption.
(c) Status of Shares Redeemed. Shares of Series __ Preferred
Stock redeemed, purchased or otherwise acquired for value by the Company,
shall, after such acquisition, have the status of authorized and unissued
shares of
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Preferred Stock and may be reissued by the Company at any time as shares of
any series of Preferred Stock other than as shares of Series __ Preferred
Stock.
4. Voting Rights.
The voting rights of the Series __ Preferred Stock shall be as
follows:
[(a) General Voting Rights. Except as expressly provided
hereinafter in this Section, or as otherwise from time to time required by
applicable law, this Series of Preferred Stock shall have no voting rights.
(b) Voting Rights Upon Dividend Arrears.
(i) Right to Elect Directors. In the event that an amount
equal to six quarterly dividend payments on this Series of Preferred
Stock shall have accrued and be unpaid, the holders of this Series of
Preferred Stock shall have the right, voting separately as a class
together with holders of shares of any Parity Stock upon which like
voting rights have been conferred and are exercisable ("Voting Parity
Stock"), to elect two members of the Board of Directors, each member
to be in addition to the then authorized number of directors, at the
next annual meeting of stockholders and thereafter until dividends on
this Series of Preferred Stock have been paid in full for four
consecutive Dividend Periods, including the last preceding Dividend
Period.
(ii) Term of Office of Directors. Any director who shall
have been elected by holders of this Series of Preferred Stock and
Voting Parity Stock entitled to vote in accordance with this
subparagraph (b) shall hold office for a term expiring (subject to the
earlier payment, or declaration and setting aside for payment, of
dividends on this Series of Preferred Stock for four consecutive
Dividend Periods as described below) at the next annual meeting of
stockholders and during such term may be removed at any time, either
for or without cause, by, and only by, the affirmative vote of the
holders of record of a majority of the shares of this Series of
Preferred Stock and Voting Parity Stock present and voting, in person
or by proxy, at a special meeting of such stockholders called for such
purpose, and any vacancy created by such removal may also be filled at
such meeting. A meeting for the removal of a director elected by the
holders of this Series of Preferred Stock and Voting Parity Stock and
the filling of the vacancy created thereby shall be called by the
Secretary of the Company as promptly as possible and in any event
within 10 days after receipt of a request therefor signed by the
holders of not less than 25% of the outstanding shares of this Series
of Preferred Stock, subject to any applicable notice requirements
imposed by law or regulation. Such
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meeting shall be held at the earliest practicable date thereafter,
provided that no such meeting shall be required to be held during the
90-day period preceding the date fixed for the annual meeting of
stockholders.
Upon payment, or declaration and setting aside for payment,
of dividends on this Series of Preferred Stock for four consecutive
Dividend Periods the terms of office of all directors elected by the
holders of the shares of this Series of Preferred Stock and the Voting
Parity Stock pursuant thereto then in office shall, without further
action, thereupon terminate unless otherwise required by law. Upon
such termination the number of directors constituting the Board of
Directors of the Company shall, without further action, be reduced by
two, subject always to the increase of the number of directors
pursuant to the foregoing provisions in the case of the future right
of holders of the shares of this Series of Preferred Stock and Voting
Parity Stock to elect directors as provided above.
(iii) Vacancies. Any vacancy caused by the death or
resignation of a director who shall have been elected in accordance
with this subparagraph (b) may be filled by the remaining director so
elected or, if not so filled, by a vote of holders of a plurality of
the shares of this Series of Preferred Stock and Voting Parity Stock
present and voting, in person or by proxy, at a meeting called for
such purpose. Unless such vacancy shall have been filled by the
remaining director as aforesaid, such meeting shall be called by the
Secretary of the Company at the earliest practicable date after such
death or resignation, and in any event within 10 days after receipt of
a written request signed by the holders of record of at least 25% of
the outstanding shares of this Series of Preferred Stock, subject to
any applicable notice requirements imposed by law or regulation.
Notwithstanding the provisions of this paragraph, no such special
meeting shall be required to be held during the 90-day period
preceding the date fixed for the annual meeting of stockholders.
(iv) Stockholders' Right to Call Meeting. If any meeting
of the holders of this Series of Preferred Stock and Voting Parity
Stock required by this subparagraph (b) to be called shall not have
been called within 30 days after personal service of a written request
therefor upon the Secretary of the Company or within 30 days after
mailing the same within the United States of America by registered
mail addressed to the Secretary of the Company at its principal
executive offices, subject to any applicable notice requirements
imposed by law or regulation, then the holders of record of at least
25% of the outstanding shares of this Series of Preferred Stock may
designate in writing one of their number to call such meeting at the
expense of the Company, and such meeting may be called by such
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person so designated upon the notice required for annual meetings of
stockholders or such shorter notice (but in no event shorter than
permitted by law or regulation) as may be acceptable to the holders of
a majority of the total number of shares of this Series of Preferred
Stock. Any holder of this Series of Preferred Stock so designated
shall have access to the Preferred Stock books of the Company for this
Series of Preferred Stock for the purpose of causing such meeting to
be called pursuant to these provisions.
(v) Quorum. At any meeting of the holders of this Series
of Preferred Stock called in accordance with the provisions of this
subparagraph (b) for the election or removal of directors, the
presence in person or by proxy of the holders of a majority of the
total number of shares of this Series of Preferred Stock and Voting
Parity Stock shall be required to constitute a quorum; in the absence
of a quorum, a majority of the holders present in person or by proxy
shall have power to adjourn the meeting from time to time without
notice other than an announcement at the meeting, until a quorum shall
be present.
(c) Voting Rights on Extraordinary Matters. So long as any
shares of this Series of Preferred Stock shall be outstanding and unless
the consent or approval of a greater number of shares shall then be
required by law, without first obtaining the approval of the holders of at
least two-thirds of the number of shares of this Series of Preferred Stock
at the time outstanding (voting separately as a class together with the
holders of shares (on a one vote per share basis) of Voting Parity Stock)
given in person or by proxy at a meeting at which the holders of such
shares shall be entitled to vote separately as a class, the Company shall
not either directly or indirectly or through merger or consolidation with
any other company, (i) authorize, create or issue, or increase the
authorized or issued amount, of any class or series of stock ranking prior
to the shares of this Series of Preferred Stock in rights and preferences
or (ii) approve any amendment to (or otherwise alter or repeal) its
Certificate of Incorporation (or this resolution) which would materially
and adversely change the specific terms of this Series of Preferred Stock.
An amendment which increases the number of authorized shares of any class or
series of Preferred Stock or authorizes the creation or issuance of other
classes or series of Preferred Stock, in each case ranking junior to or on a
parity with this Series of Preferred Stock with respect to the payment of
dividends and distribution of assets upon liquidation, dissolution or winding
up, or substitutes the surviving entity in a merger or consolidation,
reorganization or other business combination for the Company, shall not be
considered to be such an adverse change.
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<PAGE>
(d) One Vote Per Share. In connection with any matter on which
holders of this Series of Preferred Stock are entitled to vote as provided
in paragraphs (b) and (c) of this Section, or any matter on which the
holders of this Series of Preferred Stock are entitled to vote as one class
or otherwise pursuant to law or the provisions of the Certificate of
Incorporation, each holder of this Series of Preferred Stock shall be
entitled to one vote for each share of this Series of Preferred Stock held
by such holder.]
[In connection with any matter on which holders of the Common
Stock, par value $.01 per share, are entitled to vote, each holder of this
Series of Preferred Stock shall be entitled to [one vote, voting together
with such Common Stock as a single class, for each share of this Series of
Preferred Stock held by such holder].]
5. No Sinking Fund. [No sinking fund will be established for the
retirement or redemption of shares of Series __ Preferred Stock.] [Insert any
applicable sinking fund provisions.]
[6. Conversion. [Insert any applicable conversion provisions.]]
[6.] [7.] Liquidation Rights; Priority.
(a) In the event of any liquidation, dissolution or winding up
of the affairs of the Company, whether voluntary or involuntary, after
payment or provision for payment of the debts and other liabilities of the
Company, the holders of shares of the Series __ Preferred Stock shall be
entitled to receive, out of the assets of the Company, whether such assets
are capital or surplus and whether or not any dividends as such are
declared, $_____ per share plus an amount equal to all accrued and unpaid
dividend for prior Dividend Periods, and no more, before any distribution
shall be made to the holders of the Common Stock or any other class of
stock or series thereof ranking junior to the Series __ Preferred Stock
with respect to the distribution of assets. After payment of the full
amount of the liquidation preference, the holders of shares of the Series
__ Preferred Stock shall not be entitled to any further participation.
(b) Nothing contained in this Section 6 shall be deemed to
prevent redemption of shares of the Series __ Preferred Stock by the
Company in the manner provided in Section 3. Neither the merger nor
consolidation of the Company into or with any other company, nor the merger
or consolidation of any other company into or with the Company, nor a sale,
transfer or lease of all or any part of the assets of the Company, shall be
deemed to be a liquidation, dissolution or winding up of the Company within
the meaning of this Section 6.
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<PAGE>
(c) Written notice of any voluntary or involuntary liquidation,
dissolution or winding up of the affairs of the Company, stating a payment
date and the place where the distributable amounts shall be payable, shall
be given by mail, postage prepaid, no less than 30 days prior to the
payment date stated therein, to the holders of record of the Series __
Preferred Stock at their respective addresses as the same shall appear on
the books of the Company.
(d) If the amounts available for distribution with respect to
the Series __ Preferred Stock and all other outstanding stock of the
Company ranking on a parity with the Series __ Preferred Stock upon
liquidation are not sufficient to satisfy the full liquidation rights of
all the outstanding Series __ Preferred Stock and stock ranking on a parity
therewith, then the holders of each series of such stock will share ratably
in any such distribution of assets in proportion to the full respective
preferential amount (which in the case of Preferred Stock may include
accumulated dividends) to which they are entitled.
IN WITNESS WHEREOF, Monsanto Company has caused this Certificate to be
signed by _________________, its [President], and attested by _________________,
its [Secretary], this ____ day of ________________, 199_.
MONSANTO COMPANY
By: _____________________________
[Name and Title]
Attest:
___________________
[Name and Title]
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EXHIBIT 4.8
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[DEBT SECURITIES] [SERIES __ PREFERRED STOCK] [COMMON STOCK]
[DEPOSITARY SHARES] WARRANT AGREEMENT
dated as of ________ __, ____
between
MONSANTO COMPANY
and
[NAME OF WARRANT AGENT], as Warrant Agent
__________________________________
[Debt Securities] [Series __ Preferred Stock] [Common Stock] [Depositary Shares]
Warrants
Expiring ________ __, ____
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<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
Page
<S> <C> <C>
PARTIES...................................................................... 1
RECITALS..................................................................... 1
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants.......................................... 2
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates.......... 2
SECTION 1.03. Transfer of Warrants.......................................... 4
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant Certificates..... 6
SECTION 1.05. Cancellation of Warrant Certificates.......................... 6
SECTION 1.06. Treatment of Holders [If Warrants are to be issued in
Book-Entry form: and Beneficial Owners] of Warrant
Certificates.................................................. 7
ARTICLE II
EXERCISE PRICE, DURATION, EXERCISE AND CALL OF WARRANTS
SECTION 2.01. Exercise Price................................................ 8
SECTION 2.02. Duration of Warrants.......................................... 8
SECTION 2.03. Exercise of Warrants.......................................... 8
SECTION 2.04. Adjustment Under Certain Circumstances........................10
SECTION 2.05. Call of the Warrants..........................................16
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
[IF WARRANTS ARE TO BE ISSUED IN BOOK-ENTRY FORM:
AND BENEFICIAL OWNERS] OF WARRANTS
SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by
Warrants or Warrant Certificates..............................17
SECTION 3.02. Holder [If Warrants are to be issued in Book-Entry form:
and Beneficial Owner] of Warrant May Enforce Rights...........17
</TABLE>
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ARTICLE IV
CONCERNING THE WARRANT AGENT
<TABLE>
<CAPTION>
<S> <C> <C>
SECTION 4.01. Warrant Agent.................................................17
SECTION 4.02. Limitations on Warrant Agent's Obligations....................17
SECTION 4.03. Compliance With Applicable Laws...............................19
SECTION 4.04. Resignation and Appointment of Successor......................19
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments....................................................21
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance...........22
SECTION 5.03. Notices and Demands to the Company and Warrant Agent..........23
SECTION 5.04. Addresses.....................................................23
SECTION 5.05. GOVERNING LAW.................................................23
SECTION 5.06. Delivery of Prospectus........................................23
SECTION 5.07. Obtaining of Governmental Approvals...........................23
SECTION 5.08. Payment of Taxes..............................................24
SECTION 5.09. Benefits of Warrant Agreement.................................24
SECTION 5.10. Headings......................................................24
SECTION 5.11. Severability..................................................24
SECTION 5.12. Counterparts..................................................24
SECTION 5.13. Inspection of Agreement.......................................24
SECTION 5.14. Board of Director Action; No Liability of Directors, Officers,
Employees or Shareholders.....................................24
SECTION 5.15. Warrant Holders Not Shareholders..............................25
EXHIBITS
EXHIBIT A. Form of Warrant Certificate
</TABLE>
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[DEBT SECURITIES] [SERIES __ PREFERRED STOCK] [COMMON STOCK]
[DEPOSITARY SHARES] WARRANT AGREEMENT
[DEBT SECURITIES] [[SERIES __ PREFERRED STOCK] [COMMON STOCK] [DEPOSITARY
SHARES] WARRANT AGREEMENT, dated as of ________ __, ____ (as modified, amended
or supplemented, this "Agreement"), between MONSANTO COMPANY, a Delaware
corporation (the "Company") and [NAME OF WARRANT AGENT], a _________________, as
Warrant Agent (the "Warrant Agent").
W I T N E S S E T H:
[If offer consists of Debt Securities with Warrants AND/OR Warrants to
Purchase Debt Securities: WHEREAS, the Company has entered into an indenture
(the "[Senior] [Subordinated] Indenture") dated as of ______________ between the
Company and [Name of Trustee], as trustee (the "[Senior] [Subordinated]
Trustee"), providing for the issuance from time to time of its unsecured
[senior] [subordinated] debentures, notes or other evidences of indebtedness
(the "[Senior] [Subordinated] Debt Securities"), to be issued in one or more
series as provided in the [Senior] [Subordinated] Indenture; [if Warrant
Securities are not under same Indenture as Debt Securities to which they are
attached: and an Indenture (the "[Senior] [Subordinated] Indenture," the Senior
and Subordinated Indentures being referred to collectively as the "Indentures")
dated as of _________________ between the Company and [Name of Trustee], as
trustee (the "[Senior] [Subordinated] Trustee," (the Senior and Subordinated
Trustees being referred to collectively, as the "Trustees"), providing for the
issuance from time to time of its [senior] [subordinated] debentures, notes or
other evidences of indebtedness (the "[Senior] [Subordinated] Debt Securities,"
the Senior and Subordinated Debt Securities being referred to collectively as
the "Debt Securities"), to be issued in one or more series as provided in the
[Senior] [Subordinated] Indenture]; and
[If Securities and Warrants are to be offered together: WHEREAS, the
Company proposes to sell [title of Securities being offered] (the "Securities")
together with warrants (each, a "Warrant") representing the right to purchase
[title of Securities purchasable upon exercise of Warrants] [If Warrants for
Depositary Shares are to be offered: , each representing a 1/__th interest in a
share of [title of securities represented by Depositary Shares]] (the "Warrant
Securities" [If Warrants for Depositary Shares are to be offered: , which term
shall also refer, as appropriate, to such [title of securities represented by
Depositary Shares]), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Warrant
Certificates"; and]
[If Warrants are to be offered separately: WHEREAS, the Company proposes to
sell warrants (each, a "Warrant") representing the right to purchase [title of
Securities
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purchasable upon exercise of Warrants] [If Warrants for Depositary Shares are to
be offered: , each representing a 1/__th interest in a share of [title of
securities represented by the Depositary Shares]] (the "Warrant Securities" [If
Warrants for Depositary Shares are to be offered: , which term shall also refer,
as appropriate, to such [title of securities represented by the Depositary
Shares]), such warrant certificates and other warrant certificates issued
pursuant to this Agreement being herein called the "Warrant Certificates"; and]
WHEREAS, the Company desires the Warrant Agent to act on behalf of the
Company, and the Warrant Agent is willing so to act, in connection with the
issuance, transfer, exchange, exercise and cancellation of the Warrants, and the
Company wishes to set forth in this Agreement, among other things, the
provisions of the Warrants, the form of the Warrant Certificates evidencing the
Warrants and the terms and conditions upon which the Warrants may be issued,
transferred, exchanged, exercised and canceled;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF WARRANTS AND FORM, EXECUTION,
DELIVERY AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Issuance of Warrants. Each Warrant shall represent the right,
subject to the provisions contained herein and therein, to purchase [________]
Warrant Securities [in the aggregate principal amount of $_____] at the Exercise
Price set forth in Section 2.01. [If Securities and Warrants are to be offered
together: Warrants shall be issued in units with the Securities [If Warrants are
not immediately detachable: and shall not be separately transferable [Unless
Warrants are not detachable: before ________ __, ____ (the "Detachment
Date")]].] [If Warrants are to be offered separately: Warrants shall be issued
as a separate security and shall be transferable from and after the date of
issuance.] [If Warrants are to be offered in Book-Entry form: [All] [A portion]
of the Warrants shall initially be represented by one or more Book-Entry
certificates (each, a "Book-Entry Warrant Certificate").] [If Securities and
Warrants are to be offered together and in definitive form: Each Warrant
Certificate included in such a unit shall evidence [_______] Warrants for each
[$_____ principal amount of] [_______] Securities included in such unit.] [If
Warrants are to be offered separately and in definitive form: Each Warrant
Certificate shall evidence [_______] Warrants.]
SECTION 1.02. Form, Execution and Delivery of Warrant Certificates.
(a) One or more Warrant Certificates evidencing Warrants to purchase not
more than [____] [$_______ in aggregate principal amount of] Warrant Securities
(except as
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provided in Sections 1.03, 1.04 and 2.03(e)) may be executed by the Company and
delivered to the Warrant Agent upon the execution of this Warrant Agreement or
from time to time thereafter.
(b) Each Warrant Certificate, whenever issued, shall be in registered form
substantially in the form set forth in Exhibit A hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement. [If Warrants are issued in Book-Entry form: Each
Book-Entry Warrant Certificate shall bear such legend or legends as may be
required by the Depository in order for it to accept the Warrants for its book-
entry settlement system.] Each Warrant Certificate shall be printed,
lithographed, typewritten, mimeographed or engraved or otherwise reproduced in
any other manner as may be approved by the officers executing the same (such
execution to be conclusive evidence of such approval) and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements printed, lithographed or engraved thereon as the officers of the
Company executing the same may approve (such execution to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto, or with any regulation of any stock exchange
on which the Warrants [If Securities and Warrants are to be offered together: ,
the Securities] or the Warrant Securities may be listed, or to conform to usage.
Each Warrant Certificate shall be signed on behalf of the Company by its
Chairman of the Board, Chief Executive Officer, President, Chief Financial
Officer, Vice Chairman of the Board, Vice Chairman or any Vice President. The
signature of any such officer on any Warrant Certificate may be manual or
facsimile. Each Warrant Certificate, when so signed on behalf of the Company,
shall be delivered to the Warrant Agent together with an order for the
countersignature and delivery of such Warrants.
(c) The Warrant Agent shall, upon receipt of any Warrant Certificate duly
executed on behalf of the Company, countersign such Warrant Certificate and
deliver such Warrant Certificate to or upon the order of the Company. Each
Warrant Certificate shall be dated the date of its countersignature.
(d) No Warrant Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose, and no Warrant evidenced
thereby may be exercised, unless such Warrant Certificate has been countersigned
by the manual signature of the Warrant Agent. Such signature by the Warrant
Agent upon any Warrant Certificate executed by the Company shall be conclusive
evidence that such Warrant Certificate has been duly issued under the terms of
this Agreement.
(e) If any officer of the Company who has signed any Warrant Certificate
either manually or by facsimile signature shall cease to be such officer before
such Warrant Certificate shall have been countersigned and delivered by the
Warrant Agent, such Warrant Certificate nevertheless may be countersigned and
delivered as though the
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person who signed such Warrant Certificate had not ceased to be such officer of
the Company; and any Warrant Certificate may be signed on behalf of the Company
by such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company as specified in this
Section 1.02, regardless of whether at the date of the execution of this
Agreement any such person was such officer.
(f) The Holders shall [If Warrants are to be issued in Book-Entry form: ,
except as stated below with respect to Warrants evidenced by a Book-Entry
Warrant Certificate,] be entitled to receive Warrants in physical, certificated
form.
[If Warrants are to be issued in Book-Entry form: (g) A Holder shall not be
entitled to receive Warrants in physical, certificated form unless (i) the
Depositary has notified the Company that it is unwilling or unable to continue
as Depositary for such Book-Entry Warrant Certificate or if at any time it has
ceased to be a clearing agency registered under the Securities Exchange Act of
1934, as amended and the Company does not appoint a successor within 90 days, or
(ii) the Company at any time shall determine to have the Warrants represented by
definitive Warrant Certificates and shall execute and deliver to the Warrant
Agent a written order signed in the name of the Company by its Chairman of the
Board, Chief Executive Officer, President, Chief Financial Officer, Vice
Chairman of the Board, Vice Chairman or Vice President, stating that the Company
wishes to issue Warrants in definitive form in exchange for such Book-Entry
Warrant Certificate. In any such instance, and in accordance with the provisions
of this Agreement, each Holder shall be entitled to have registered in its name
the number of Warrants in definitive form equivalent to such Holder's beneficial
interest in such Book-Entry Warrant Certificate and shall receive physical
delivery of definitive Warrant Certificates representing such Warrants from the
Depositary.
(h) A Book-Entry Warrant Certificate may be exchanged for a new Book-Entry
Warrant Certificate, or one or more new Book-Entry Warrant Certificates may be
issued, to reflect the issuance by the Company of additional Warrants. To effect
such an exchange, the Company shall deliver to the Warrant Agent one or more new
Book-Entry Warrant Certificates duly executed on behalf of the Company as
provided in Section 1.02. The Warrant Agent shall authenticate each new Book-
Entry Warrant Certificate as provided in Section 1.02 and shall deliver each new
Book-Entry Warrant Certificate to the Depository. The Warrant Agent shall cancel
each Book-Entry Warrant Certificate delivered to it by the Depository in
exchange therefor, if any.]
SECTION 1.03. Transfer of Warrants.
[If Warrants are to be issued in Book-Entry form: (a) [All] [A portion] of
the Warrants shall initially be represented by one or more Book-Entry Warrant
Certificates deposited with [the Depository Trust Company] (the "Depository")
and registered in the name of [Cede & Co.], a nominee of the Depository. Except
as provided for in Section 1.03(b) hereof, no person acquiring Warrants with
book-entry settlement through the
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Depository shall receive or be entitled to receive physical delivery of
definitive Warrant Certificates evidencing such Warrants. Ownership of
beneficial interests in the Warrants shall be shown on, and the transfer of such
ownership shall be effected through, records maintained by (i) the Depository or
its nominee for each Book-Entry Warrant Certificate, or (ii) institutions that
have accounts with the Depository (such institution, with respect to a Warrant
in its account, a "Participant").]
[If Warrants are to be issued in Book-Entry form: (b) If the Depository
subsequently ceases to make its book-entry settlement system available for the
Warrants, the Company may instruct the Warrant Agent regarding making other
arrangements for book-entry settlement. In the event that the Warrants are not
eligible for, or it is no longer necessary to have the Warrants available in,
book-entry form, the Warrant Agent shall provide written instructions to the
Depository to deliver to the Warrant Agent for cancellation each Book-Entry
Warrant Certificate, and the Company shall instruct the Warrant Agent to deliver
to the Depository definitive Warrant Certificates in physical form evidencing
such Warrants. Such definitive Warrant Certificates shall be in the form annexed
hereto as Exhibit A with appropriate insertions, modifications and omissions, as
provided above.]
[If Securities and Warrants are to be offered together: (c) [If Warrants
are not immediately detachable: Prior to the Detachment Date,] Warrants may be
transferred or exchanged only together with the Security to which such Warrant
is attached, and only for the purpose of effecting, or in conjunction with, a
transfer or exchange of such Security. Furthermore, [If Warrants are not
immediately detachable: on or prior to the Detachment Date,] each transfer of a
Security on the register relating to such Securities shall operate also to
transfer the Warrants to which such Security was initially attached. [If
Warrants are not immediately detachable: From and after the Detachment Date, the
above provisions shall be of no further force and effect.]
(d) A Warrant Certificate may be transferred at the option of the Holder
thereof upon surrender of such Warrant Certificate at the corporate trust office
of the Warrant Agent, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Warrant Agent [If Warrants are to be issued
in Book-Entry form: ; provided, however, that except as otherwise provided
herein or in any Book-Entry Warrant Certificate, each Book-Entry Warrant
Certificate may be transferred only in whole and only to the Depository, to
another nominee of the Depository, to a successor depository, or to a nominee of
a successor depository]. Upon any such registration of transfer, the Company
shall execute, and the Warrant Agent shall countersign and deliver, as provided
in Section 1.02, in the name of the designated transferee a new Warrant
Certificate or Warrant Certificates of any authorized denomination evidencing in
the aggregate a like number of unexercised Warrants.
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(e) [If Warrants are not immediately detachable: After the Detachment
Date,] Upon surrender at the corporate office of the Warrant Agent, properly
endorsed or accompanied by appropriate instruments of transfer and written
instructions for such exchange, all in form satisfactory to the Company and the
Warrant Agent, one or more Warrant Certificates may be exchanged for one or more
Warrant Certificates in any other authorized denominations; provided that such
new Warrant Certificate(s) evidence the same aggregate number of Warrants as the
Warrant Certificate(s) so surrendered. Upon any such surrender for exchange, the
Company shall execute, and the Warrant Agent shall countersign and deliver, as
provided in Section 1.02, in the name of the Holder of such Warrant
Certificates, the new Warrant Certificates.
(f) The Warrant Agent shall keep, at its corporate trust office, books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates in accordance with Section 1.02 and transfers,
exchanges, exercises and cancellations of outstanding Warrant Certificates.
Whenever any Warrant Certificates are surrendered for transfer or exchange in
accordance with this Section 1.03, an authorized officer of the Warrant Agent
shall manually countersign and deliver the Warrant Certificates which the Holder
making the transfer or exchange is entitled to receive.
(g) No service charge shall be made for any transfer or exchange of Warrant
Certificates, but the Company may require payment of a sum sufficient to cover
any stamp or other tax or other governmental charge that may be imposed in
connection with any such transfer or exchange.
SECTION 1.04. Lost, Stolen, Mutilated or Destroyed Warrant Certificates.
Upon receipt by the Company and the Warrant Agent of evidence satisfactory to
them of the ownership of and the loss, theft, destruction or mutilation of any
Warrant Certificate and of indemnity satisfactory to them and, in the case of
mutilation, upon surrender of such Warrant Certificate to the Warrant Agent for
cancellation, then, in the absence of notice to the Company or the Warrant Agent
that such Warrant Certificate has been acquired by a bona fide purchaser, the
Company shall execute, and an authorized officer of the Warrant Agent shall
manually countersign and deliver, in exchange for or in lieu of the lost,
stolen, destroyed or mutilated Warrant Certificate, a new Warrant Certificate of
the same tenor and for a like number of Warrants. No service charge shall be
made for any replacement of Warrant Certificates, but the Company may require
the payment of a sum sufficient to cover any stamp or other tax or other
governmental charge that may be imposed in connection with any such exchange. To
the extent permitted under applicable law, the provisions of this Section 1.04
are exclusive with respect to the replacement of mutilated, lost, stolen or
destroyed Warrant Certificates and shall preclude any and all other rights or
remedies.
SECTION 1.05. Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered to the Warrant Agent for transfer, exchange or exercise of the
Warrants
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evidenced thereby shall be promptly canceled by the Warrant Agent and shall not
be reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu thereof. The Warrant Agent shall
deliver to the Company from time to time or otherwise dispose of canceled
Warrant Certificates in a manner satisfactory to the Company. Any Warrant
Certificate surrendered to the Company for transfer, exchange or exercise of the
Warrants evidenced thereby shall be promptly delivered to the Warrant Agent and
such transfer, exchange or exercise shall not be effective until such Warrant
Certificate has been received by the Warrant Agent.
SECTION 1.06. Treatment of Holders [If Warrants are to be issued in Book-
Entry form: and Beneficial Owners] of Warrant Certificates. (a) The term
"Holder", as used herein, shall mean any person in whose name at the time any
Warrant Certificate shall be registered upon the books to be maintained by the
Warrant Agent for that purpose [If Warrants are not immediately detachable: or,
prior to the Detachment Date, the person in whose name the Security to which
such Warrant Certificate was initially attached is registered upon the register
relating to such Securities. At all times prior to the Detachment Date, the
Company will, or will cause the registrar of the Securities to, make available
to the Warrant Agent such information as to holders of the Securities as may be
necessary to keep the Warrant Agent's records current]. [If Warrants are to be
issued in Book-Entry form: The Holder of each Book-Entry Warrant Certificate
shall initially be [___________], a nominee of the Depository.]
[If Warrants are to be issued in Book-Entry Form: (b) The term "Beneficial
Owner" as used herein shall mean any person in whose name ownership of
beneficial interests in Warrants evidenced by a Book-Entry Warrant Certificate
is recorded in the records maintained by the Depository or its nominee, or by a
Participant [If Warrants are not immediately detachable: , or, prior to the
Detachment Date, the person in whose name the Security to which such Warrant
Certificate was initially attached is registered upon the register relating to
such Securities].]
(c) Every Holder [If Warrants are to be issued in Book-Entry form: and
every Beneficial Owner] consents and agrees with the Company, the Warrant Agent
and with every subsequent Holder [If Warrants are to be issued in Book-Entry
form: and Beneficial Owner] that until the Warrant Certificate is transferred on
the books of the Warrant Agent, the Company and the Warrant Agent may treat the
registered Holder of such Warrant Certificate as the absolute owner of the
Warrants evidenced thereby for any purpose and as the person entitled to
exercise the rights attaching to the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
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ARTICLE II
EXERCISE PRICE, DURATION, EXERCISE AND CALL OF WARRANTS
SECTION 2.01. Exercise Price. The exercise price of each Warrant shall be
$________ (the "Exercise Price") [modify as appropriate to reflect terms of
offered Warrants].
SECTION 2.02. Duration of Warrants. [Subject to the limitations set forth
herein,] Each Warrant may be exercised in whole but not in part [Unless Warrants
may be exercised on only one date: on any Business Day (as defined below)
occurring during the period (the "Exercise Period") commencing on [its date of
issuance] [_________ __, ____] and ending at 5:00 P.M., New York time,] on
__________ __, ____ (the "Expiration Date"). Each Warrant remaining unexercised
after 5:00 P.M., New York time, on the Expiration Date shall become void, and
all rights of the Holder under this Agreement shall cease.
As used herein, the term "Business Day" means any day which is not a
Saturday or Sunday and is not a legal holiday or a day on which banking
institutions generally are authorized or obligated by law or regulation to close
in New York [and _____].
SECTION 2.03. Exercise of Warrants.
(a) A Holder may exercise a Warrant by delivering, not later than 5:00
P.M., New York time, on [Unless Warrants may be exercised on only one date: any
Business Day during the Exercise Period (the "Exercise Date")] [If Warrants may
be exercised on only one date: the Expiration Date] to the Warrant Agent at its
corporate trust department (i) the Warrant Certificate evidencing the Warrants
to be exercised, [If Warrants are to be issued in Book-Entry form: and, in the
case of a Book-Entry Warrant Certificate, the Warrants to be exercised (the
"Book-Entry Warrants") on the records of the Depository to an account of the
Warrant Agent at the Depository designated for such purpose in writing by the
Warrant Agent to the Depository from time to time,] (ii) an election to purchase
the Warrant Securities ("Election to Purchase"), [For definitive Warrant
Certificates: properly completed and executed by the Holder on the reverse of
the Warrant Certificate] [If Warrants are to be issued in Book-Entry form: or,
in the case of a Book-Entry Warrant Certificate, properly executed by the
Participant and substantially in the form included on the reverse of each
Warrant Certificate,] and (iii) the Exercise Price for each Warrant to be
exercised in lawful money of the United States of America by a cashier's check
or by wire transfer in immediately available funds. If any of (a) the Warrant
Certificate [If Warrants are to be issued in Book-Entry form: or the Book-Entry
Warrants,] (b) the Election to Purchase, or (c) the Exercise Price therefor, is
received by the Warrant Agent after 5:00 P.M., New York time, on [Unless
Warrants may be exercised on only one date: the specified Exercise Date, the
Warrants will be deemed to be received and exercised on the Business Day next
succeeding the Exercise Date. If the date specified as the Exercise
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<PAGE>
Date is not a Business Day, the Warrants will be deemed to be received and
exercised on the next succeeding day which is a Business Day. If the Warrants
are received or deemed to be received after] the Expiration Date, the exercise
thereof will be null and void and any funds delivered to the Warrant Agent will
be returned to the Holder [If Warrants are to be issued in Book-Entry form: or
Participant, as the case may be,] as soon as practicable. In no event will
interest accrue on funds deposited with the Warrant Agent in respect of an
exercise or attempted exercise of Warrants. The validity of any exercise of
Warrants will be determined by the Warrant Agent in its sole discretion and such
determination will be final and binding upon the Holder and the Company. Neither
the Company nor the Warrant Agent shall have any obligation to inform a Holder
of the invalidity of any exercise of Warrants. The Warrant Agent shall deposit
all funds received by it in payment of the Exercise Price in the account of the
Company maintained with the Warrant Agent for such purpose and shall advise the
Company by telephone at the end of each day on which funds for the exercise of
the Warrants are received of the amount so deposited to its account. The Warrant
Agent shall promptly confirm such telephonic advice to the Company in writing.
(b) The Warrant Agent shall, by 11:00 A.M. on the Business Day following
the [Unless Warrants may be exercised on only one date: Exercise Date of any
Warrant] [If Warrants may be exercised on only one date: Expiration Date],
advise the Company and the [Trustee under the Indenture applicable to] [the
transfer agent and registrar in respect of] the Warrant Securities issuable upon
such exercise as to the number of Warrants exercised in accordance with the
terms and conditions of this Agreement, the instructions of each Holder [If
Warrants are to be issued in Book-Entry form: or Participant, as the case may
be,] with respect to delivery of the Warrant Securities issuable upon such
exercise, and the delivery of definitive Warrant Certificates [If Warrants are
to be issued in Book-Entry form: or one or more Book-Entry Warrant Certificates,
as appropriate,] evidencing the balance, if any, of the Warrants remaining after
such exercise, and such other information as the Company or such [Trustee]
[transfer agent and registrar] shall reasonably require.
(c) The Company shall, by 5:00 P.M., New York time, on the third Business
Day next succeeding the [Unless Warrants may be exercised on only one date:
Exercise Date of any Warrant] [If Warrants may be exercised on only one date:
Expiration Date], execute, issue and deliver to the Warrant Agent, [pursuant to
the Indenture applicable to the Warrant Securities, the Warrant Securities, duly
authenticated by the Trustee of such Indenture and in authorized denominations]
[the Warrant Securities] to which such Holder is entitled, in fully registered
form, registered in such name or names as may be directed by such Holder [If
Warrants are to be issued in Book-Entry form: or the Participant, as the case
may be]. Upon receipt of such Warrant Securities, the Warrant Agent shall, by
5:00 P.M., New York time, on the fifth Business Day next succeeding [Unless
Warrants may be exercised on only one date: such Exercise Date] [If Warrants may
be exercised on only one date: the Expiration Date], transmit such Warrant
Securities, to or upon the order of the Holder [If Warrants are to be issued in
Book-Entry
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<PAGE>
form: or Participant, as the case may be,] together with, or preceded by the
prospectus referred to in Section 5.06 hereof. The Company agrees that it will
provide such information and documents to the Warrant Agent as may be necessary
for the Warrant Agent to fulfill its obligations hereunder.
(d) The accrual of [interest] [dividends], if any, on the Warrant
Securities issued upon the valid exercise of any Warrant will be governed by the
terms of the applicable [Indenture] [certificate of designations] and such
Warrant Securities. From and after the issuance of such Warrant Securities, the
former Holder of the Warrants exercised will be entitled to the benefits of the
[Indenture] [certificate of designations] under which such Warrant Securities
are issued and such former Holder's right to receive payments of [principal of
(and premium, if any) and interest, if any, on] [dividends and any other amounts
payable in respect of] the Warrant Securities shall be governed by, and shall be
subject to, the terms and provisions of such [Indenture] [certificate of
designations] and the Warrant Securities.
(e) Warrants may be exercised only in whole numbers of Warrants. [Unless
Warrants may be exercised on only one date: If fewer than all of the Warrants
evidenced by a Warrant Certificate are exercised, a new Warrant Certificate for
the number of Warrants remaining unexercised shall be executed by the Company
and countersigned by the Warrant Agent as provided in Section 1.02 hereof, and
delivered to the Holder at the address specified on the books of the Warrant
Agent or as otherwise specified by such Holder.]
(f) The Company shall not be required to pay any stamp or other tax or
other governmental charge required to be paid in connection with any transfer
involved in the issue of the Warrant Securities; and in the event that any such
transfer is involved, the Company shall not be required to issue or deliver any
Warrant Securities until such tax or other charge shall have been paid or it has
been established to the Company's satisfaction that no such tax or other charge
is due.
[If Warrants for Common Stock are offered: SECTION 2.04. Adjustment Under
Certain Circumstances. The Exercise Price and the number of Warrant Securities
purchasable upon the exercise of each Warrant shall be subject to adjustment [as
shall be determined by the Warrant Agent, which determination shall be final and
binding upon the Holders and the Company.] as follows:
(i) If the Company at any time after the date of this Agreement (1)
declares a stock dividend or other distribution on Securities payable in
shares, (2) subdivides the outstanding Common Stock or Preferred Stock (for
the purposes of this Section only, "Shares") or (3) combines outstanding
Shares into a smaller number of Shares, the Exercise Price to be in effect
after the time of the record date for such dividend or distribution or of
the effective date of such subdivision or combination shall be determined
by multiplying the Exercise Price in effect
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immediately prior to such time by a fraction, the numerator of which shall
be the number of Shares outstanding immediately prior to such time and the
denominator of which shall be the number of Shares to be outstanding
immediately after giving effect to such dividend, distribution, subdivision
or combination, in each case excluding any Shares held in the treasury of
the Company ("Treasury Shares"). Such an adjustment shall be made
successively whenever any event listed above occurs.
(ii) If the Company fixes a record date for the issuance of rights or
warrants to all holders of Shares entitling them (for a period expiring
within __ days after such record date) to subscribe for or purchase Shares
(or securities convertible into Shares) at a price per Share (or having a
conversion price per share, if a security convertible into Shares) less
than the current market price per Share (as defined in subsection (iv)) on
such record date, the Exercise Price to be in effect after such record date
shall be determined by multiplying the Exercise Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be
the number of Shares outstanding on such record date plus the number of
Shares which the aggregate offering price of the total number of Shares so
to be offered (or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market price
(as defined in subsection (iv)) and the denominator of which shall be the
number of Shares outstanding on such record date plus the number of
additional Shares to be offered for subscription or purchase (or into which
the convertible securities so to be offered are initially convertible). If
such subscription price may be paid in consideration, part or all of which
shall be in a form other than cash, the value of such consideration shall
be as determined in good faith by the Board of Directors of the Company.
Shares owned by or held for the account of the Company or any majority-
owned subsidiary of the Company shall not be deemed outstanding for the
purpose of any such computation. Such an adjustment shall be made
successively whenever such a record date is fixed; and in the event that
such rights or warrants are not so issued and to the extent they are issued
but expire unexercised, the Exercise Price shall again be adjusted to be
the Exercise Price that would then be in effect if such record date had not
been fixed.
(iii) If the Company fixes a record date for the making of a
distribution to all holders of Shares (including any such distribution made
in connection with a consolidation or merger in which the Company is the
continuing corporation) of shares of its stock, evidences of its
indebtedness or assets (other than dividends or distributions in cash
payable out of consolidated earnings or earned surplus) or subscription
rights or warrants (excluding those referred to in subsection (ii), the
Exercise Price to be in effect after such record date shall be determined
by multiplying the Exercise Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the current
market price per Share (as defined in subsection (iv) on such record date,
less the fair market value (as
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determined in good faith by the Board of Directors of the Company) of the
portion of such shares, evidences of indebtedness, assets, subscription
rights or warrants applicable to one Share, and the denominator of which
shall be such current market price per Share. Such an adjustment shall be
made successively whenever such a record date is fixed; and if such
distribution is not so made, the Exercise Price shall again be adjusted to
be the Exercise Price which would then be in effect if such record date had
not been fixed.
(iv) For the purpose of any computation under subsections (ii) or
(iii), the current market price per Share on any record date shall be
deemed to be the average of the daily closing prices per share for the 30
consecutive NYSE trading days commencing 45 NYSE trading days before such
record date. For the purpose of all relevant provisions of this Agreement,
the closing price for each day shall be the last sale price regular way or,
in case no such sale takes place on such day, the average of the closing
bid and asked prices regular way, in either case on the NYSE, or, if the
Shares are not listed or admitted to trading on the NYSE, on the principal
national securities exchange on which the Shares are listed or admitted to
trading or, if the Shares are not listed or admitted to trading on any
national securities exchange, the average of the highest reported bid and
lowest reported asked prices as furnished by the National Association of
Securities Dealers, Inc. (the "NASD") through Nasdaq or a similar
organization if Nasdaq is no longer reporting such information (such
reported last sale price of, or such average of such bid and asked prices
for, the shares or any other securities is referred to herein as the
"Market Value" of the shares or such securities). If on any such trading
day the Shares are not quoted by any such organization, the current market
price of such Shares on such day, as determined by the Board of Directors
of the Company, shall be used.
(v) Not withstanding the foregoing, no adjustment in the Exercise
Price shall be required unless such adjustment would require an increase or
decrease of at least one percent in such price; provided, however, that any
adjustments which by reason of this subsection (v) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 2.04 shall be made to the
nearest cent or to the nearest one-hundredth of a Share, as the case may
be.
(vi) If at any time, as a result of an adjustment made pursuant to
this Section 2.04, the holder of any Warrant thereafter exercised becomes
entitled to receive any shares of the Company other than Shares, thereafter
the number of such other shares so receivable upon exercise of any Warrant
shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
Shares contained in this Section 2.04, and the provisions of this Section
2.04 and Sections 2.02, 2.03, 2.05, 5.08
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<PAGE>
and 5.14 with respect to the Shares shall apply on like terms to any such
other shares.
(vii) In any case in which this Section 2.04 shall require that an
adjustment in the Exercise Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Warrant exercised after such
record date, the Shares and other capital stock of the Company, if any,
issuable upon such exercise over and above the Shares and other capital
stock of the Company, if any, issuable upon such exercise on the basis of
the Exercise Price in effect prior to such adjustment; provided, however,
that the Company shall deliver to such holder a due bill or other
appropriate instrument evidencing, subject to the following proviso, such
holder's right to receive such additional Shares upon the occurrence of the
event requiring such adjustment and, provided further, to the extent such
event does not occur, the adjustment made in respect of such non-occurrence
shall be retroactive to such Record Date and affect all Warrants exercised
between such Record Date and the date of such non-occurrence.
(viii) Upon each adjustment of the Exercise Price pursuant to this
Section 2.04 each Warrant outstanding immediately prior to such adjustment
shall thereafter constitute the right to purchase, at the adjusted Exercise
Price per Share, an adjusted number of Shares determined (to the nearest
hundredth) by multiplying the number of Shares purchasable upon exercise of
a Warrant immediately prior to such adjustment by a fraction, the numerator
of which shall be the Exercise Price in effect immediately prior to such
adjustment and the denominator of which shall be the Exercise Price in
effect immediately after such adjustment; provided, however, that the
Company may elect, in substitution for the adjustment in the number of
Shares pursuant to this subsection (viii), to adjust the number of Warrants
pursuant to subsection (ix).
(ix) In substitution for any adjustment in the number of Shares
purchasable upon the exercise of a Warrant as provided in subsection
(viii), the Company may elect to adjust the number of Warrants so that each
Warrant outstanding after such adjustment in number of Warrants shall be
exercisable for one share. Each Warrant held of record immediately prior to
such adjustment of the number of Warrants shall become that number of
Warrants determined (to the nearest hundredth) by multiplying the number of
shares purchasable upon exercise of a Warrant immediately prior to such
adjustment by a fraction, the numerator of which shall be the Exercise
Price in effect immediately prior to such adjustment and the denominator of
which shall be the Exercise Price in effect immediately after such
adjustment. The Company shall make a public announcement (by news release
and by notice to any securities exchange on which the Warrants are then
listed) of its election to adjust the number of Warrants, indicating the
record date for the adjustment and, if known at the time,
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the amount of the adjustment to be made in the number of Warrants. This
record date may be the date on which the Exercise Price is adjusted or any
day thereafter, but shall be at least 10 days later than the date of the
public announcement. Upon each adjustment of the number of Warrants
pursuant to this subsection (ix) the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Warrant
Certificates on such record date Warrant Certificates evidencing the
additional Warrants to which such holders shall be entitled as a result of
such adjustment or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for
the Warrant Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof if required by the Company in its
sole discretion, new Warrant Certificates evidencing all the Warrants to
which such holders shall be entitled after such adjustment. Warrant
Certificates to be so distributed may, at the option of the Company, bear
the adjusted Exercise Price and shall be registered in the names of the
holders of record of Warrant Certificates on the record date specified in
the public announcement.
(x) In the case of any reclassification or change of outstanding
Shares (other than a change in par value, if any, as a result of a
subdivision or combination), or in case of any consolidation of the Company
with any other corporation or any merger of the Company into another
corporation or of another corporation into the Company (other than a
consolidation or merger in which the Company is the continuing corporation
and which does not result in any such reclassification or change of
outstanding Shares, but including a consolidation or merger in which the
Company is the continuing corporation and in which all or a majority of the
Shares outstanding immediately prior to such consolidation (excluding
Treasury Shares) or merger are converted into, or converted into the right
to receive, consideration other than capital stock), or in case of any sale
of the properties and assets of the Company as, or substantially as, an
entirety to any other person or entity, each Warrant shall, after such
reclassification or change of Shares, consolidation, merger or sale, be
exercisable at the then Exercise Price and upon the other terms and
conditions specified in this Agreement for the number of shares of stock or
other securities or assets (which may be cash) to which a holder of the
number of Shares purchasable (at the time of such reclassification or
change of Shares, consolidation, merger or sale) upon the exercise of such
Warrant would have been entitled (other than pursuant to any applicable
dissenters rights of appraisal) upon such reclassification or change of
Shares, consolidation, merger or sale; and in any such case, the provisions
set forth in this Section 2.04 with respect to the rights and interests
thereafter of the holders of the Warrants shall be appropriately adjusted
so as to be applicable, as nearly as may reasonably be, to any shares of
stock, other securities or property thereafter deliverable on the exercise
of the Warrants. The Company shall not effect any such consolidation,
merger or sale unless, prior to or simultaneously with the consummation
thereof, the successor person or entity (if other than the
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Company) resulting from such consolidation or merger or the corporation
purchasing such assets or other appropriate person or entity shall assume,
by written instrument executed and delivered to the Warrant Agent, the
obligation to deliver to the holder of each Warrant such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such
holders are entitled to receive and to assume the other obligations of the
Company under this Warrant Agreement. [Notwithstanding the foregoing, in
the event of any such consolidation, merger or sale in which holders of the
Company's Common Stock within two years of the date of this Agreement
receive any consideration other than common stock or rights, options or
warrants to acquire common stock, the holder of each Warrant so electing in
a writing filed with the Company prior thereto, shall be entitled to
receive cash, simultaneously with the consummation of such transaction, in
an amount equal to the average closing price of the Warrant (as determined
in the same manner as the average closing price per share is determined in
the second and third sentences of subsection (iv) for the 20 NYSE trading
days immediately preceding the public announcement of such merger,
consolidation or sale.]
(xi) Except as provided in this Section 2.04, no adjustment in respect
of any dividends on the Shares shall be made during the term of a Warrant
or upon the exercise of a Warrant.
(xii) Irrespective of any adjustments in the Exercise Price or the
number or kind of shares purchasable upon the exercise of the Warrants,
Warrant Certificates theretofore or thereafter issued may continue to
express the same Exercise Price per share and number and kind of shares as
are stated on the Warrant Certificates initially issuable pursuant to this
Agreement.
(xiii) Anything in this Section 2.04 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Exercise Price
or increase in the number of shares purchasable upon the exercise of each
Warrant, in addition to those adjustments required by this Section 2.04, as
it in its sole discretion shall determine to be advisable in order that any
consolidation or subdivision of the Shares, or any issuance wholly for cash
of any Shares at less than the current market price, or any issuance wholly
for cash of Shares or securities which by their terms are convertible into
or exchangeable for Shares, or any stock dividend, or any issuance of
rights, options or warrants referred to above in this Section 2.04, made by
the Company to its common shareholders shall not be taxable to them.
(xiv) Anything in this Section 2.04 to the contrary notwithstanding,
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the issuance of shares, or the granting of options to purchase shares, by
the Company or its subsidiaries to any of their employees under their
employee benefit, compensation or incentive plans, as well as the issuance
of shares under any dividend reinvestment plan of the Company, are not to
be taken into consideration for adjustments under this Section 2.04.
(xv) In addition to the foregoing adjustments and without duplication,
if (x) prior to the exercise of a Warrant an event ("Event") occurs which,
under the Certificate of Determination with respect to the shares, would
require an adjustment in the number of share(s) of Common Stock into which
the one share purchasable on exercise of such Warrant would have been
convertible if such Warrant had then been exercised, then (y) after the
Event such one share shall, when acquired on exercise of the Warrant, be
convertible into the same number of share(s) of Common Stock into which it
would have been convertible if such Warrant had been exercised prior to the
Event. The adjustment required by the foregoing sentence shall be made each
time there is an Event, provided that no adjustment shall be made under
this subsection (xv) unless that adjustment results in a change of one
percent, provided further that all adjustments not made by virtue of the
preceding "provided" clause shall be carried forward and made when the
aggregate of all such adjustments results in a change of at least one
percent.]*
SECTION 2.05. Call of the Warrants. If the closing price per share for the
Shares (determined as provided in the second sentence of Section 2.04(iv)) is
greater than ___% of the Exercise Price (as defined below) then in effect for
any ___ NYSE trading days within a period of __ consecutive NYSE trading days,
the Company may elect, by written notice given within __ days after the end of
such __-day period, to redeem the Warrants, at a price of $_________ per
Warrant, on a date not less than __ days after the giving of such notice (which
date shall not be prior to _________, _________) (such date is referred to below
as the "Warrant Call Date"). The notice of the Warrant Call Date shall be given
to the Warrant Agent as provided in Section and copies of such notice shall be
mailed to the registered holders of the Warrant Certificates as provided in
Section 5.04. If there is not at any relevant time a NYSE, then business days
rather than trading days on the NYSE will be used in the foregoing provisions.
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* This provision will be used, if at all, if the Warrants are exercisable
for Preferred Stock which is convertible into Common Stock.
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<PAGE>
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
[If Warrants are to be issued in Book-Entry Form:
AND BENEFICIAL OWNERS] OF WARRANTS
SECTION 3.01. No Rights as Holders of Warrant Securities Conferred by
Warrants or Warrant Certificates. No Warrant Certificate or Warrant evidenced
thereby shall entitle the Holder thereof to any of the rights of a holder of any
Warrant Securities, including, without limitation, [the right to receive the
payments of principal of (and premium, if any) and interest, if any, on Debt
Securities purchasable upon such exercise or to enforce any of the covenants in
the Indenture] [the right to receive dividends, if any, or payments upon the
liquidation, dissolution or winding up of the Company or to exercise voting
rights, if any].
SECTION 3.02. Holder [If Warrants are to be issued in Book-Entry form: and
Beneficial Owner] of Warrant May Enforce Rights. Notwithstanding any of the
provisions of this Agreement, any Holder [If Warrants are to be issued in Book-
Entry form: and any Beneficial Owner] of any Warrant, without the consent of the
Warrant Agent or the Holder of any Warrant, may, on such Holder's [If Warrants
are to be issued in Book-Entry form: or Beneficial Owner's] own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise in respect of, such
Holder's [If Warrants are to be issued in Book-Entry form: or Beneficial
Owner's] right to exercise the Warrants evidenced by any Warrant Certificate in
the manner provided in this Agreement and such Warrant Certificate.
ARTICLE IV
CONCERNING THE WARRANT AGENT
SECTION 4.01. Warrant Agent. The Company hereby appoints [Name of Warrant
Agent] as Warrant Agent of the Company in respect of the Warrants upon the terms
and subject to the conditions herein set forth, and [Name of Warrant Agent]
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it hereby and such further powers and
authority to act on behalf of the Company as the Company may hereafter grant to
or confer upon it.
SECTION 4.02. Limitations on Warrant Agent's Obligations. The Warrant Agent
accepts its obligations herein set forth upon the terms and conditions hereof,
including the following, to all of which the Company agrees and to all of which
the rights hereunder of the Holders from time to time shall be subject:
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(a) Compensation and Indemnification. The Company agrees to pay the
Warrant Agent compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent
for all reasonable out-of-pocket expenses (including reasonable counsel
fees) incurred by the Warrant Agent in connection with the services
rendered by it hereunder. The Company also agrees to indemnify the Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
incurred without negligence, bad faith or breach of this Agreement on the
part of the Warrant Agent, arising out of or in connection with its acting
as Warrant Agent hereunder.
(b) Agent for the Company. In acting in the capacity of Warrant Agent
under this Agreement, the Warrant Agent is acting solely as agent of the
Company and does not assume any obligation or relationship of agency or
trust with any of the owners or holders of the Warrants except as expressly
set forth herein.
(c) Counsel. The Warrant Agent may consult with counsel satisfactory
to it (which may be counsel to the Company), and the advice of such counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in
accordance with the advice of such counsel.
(d) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, and its officers,
directors and employees, may become the owner of, or acquire any interest
in, any Warrant, with the same rights that it or they would have were it
not the Warrant Agent hereunder, and, to the extent permitted by applicable
law, it or they may engage or be interested in any financial or other
transaction with the Company and may act on, or as a depositary, trustee or
agent for, any committee or body of holders of Warrants [If Securities and
Warrants are to be offered together: , Securities] or Warrant Securities,
or other securities or obligations of the Company as freely as if it were
not the Warrant Agent hereunder. Nothing in this Agreement shall be deemed
to prevent the Warrant Agent from acting as trustee under either Indenture.
(f) No Liability for Interest. The Warrant Agent shall not be under
any liability for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement.
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<PAGE>
(g) No Liability for Invalidity. The Warrant Agent shall not be under
any responsibility with respect to the validity or sufficiency of this
Agreement or the execution and delivery hereof (except the due execution
and delivery hereof by the Warrant Agent) or with respect to the validity
or execution of the Warrant Certificates (except its countersignature
thereon).
(h) No Responsibility for Recitals. The recitals contained herein and
in the Warrant Certificates (except as to the Warrant Agent's
countersignature thereon) shall be taken as the statements of the Company
and the Warrant Agent assumes no responsibility hereby for the correctness
of the same.
(i) No Implied Obligations. The Warrant Agent shall be obligated to
perform such duties as are specifically set forth herein and no implied
duties or obligations shall be read into this Agreement against the Warrant
Agent. The Warrant Agent shall not be under any obligation to take any
action hereunder which may tend to involve it in any expense or liability,
the payment of which within a reasonable time is not, in its opinion,
assured to it. The Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any Warrant Certificate
authenticated by the Warrant Agent and delivered by it to the Company
pursuant to this Agreement or for the application by the Company of the
proceeds of the issue and sale, or exercise, of the Warrants. The Warrant
Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein
or in any Warrant Certificate or in the case of the receipt of any written
demand from a Holder with respect to such default, including, without
limiting the generality of the foregoing, any duty or responsibility to
initiate or attempt to initiate any proceedings at law or otherwise or,
except as provided in Section 5.03 hereof, to make any demand upon the
Company.
SECTION 4.03. Compliance With Applicable Laws. The Warrant Agent agrees to
comply with all applicable federal and state laws imposing obligations on it in
respect of the services rendered by it under this Agreement and in connection
with the Warrants, including (but not limited to) the provisions of United
States federal income tax laws regarding information reporting and backup
withholding. The Warrant Agent expressly assumes all liability for its failure
to comply with any such laws imposing obligations on it, including (but not
limited to) any liability for its failure to comply with any applicable
provisions of United States federal income tax laws regarding information
reporting and backup withholding.
SECTION 4.04. Resignation and Appointment of Successor.
(a) The Company agrees, for the benefit of the Holders from time to time,
that there shall at all times be a Warrant Agent hereunder until all the
Warrants issued hereunder have been exercised or have expired in accordance with
their terms, which
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<PAGE>
Warrant Agent shall be a bank or trust company organized under the laws of the
United States of America or one of the states thereof, which is authorized under
the laws of the jurisdiction of its organization to exercise corporate trust
powers, has a combined capital and surplus of at least $50,000,000 and has an
office or an agent's office in the United States of America.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which it desires such resignation to become effective; provided that such
date shall not be less than three months after the date on which such notice is
given, unless the Company agrees to accept such notice less than three months
prior to such date of effectiveness. The Company may remove the Warrant Agent at
any time by giving written notice to the Warrant Agent of such removal,
specifying the date on which it desires such removal to become effective. Such
resignation or removal shall take effect upon the appointment by the Company, as
hereinafter provided, of a successor Warrant Agent (which shall be a bank or
trust company qualified as set forth in Section 4.04(a)) and the acceptance of
such appointment by such successor Warrant Agent. The obligation of the Company
under Section 4.02(a) shall continue to the extent set forth therein
notwithstanding the resignation or removal of the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall cease to be
qualified as set forth in Section 4.04(a), or shall be removed, or shall become
incapable of acting, or shall be adjudged a bankrupt or insolvent, or shall file
a petition seeking relief under any applicable Federal or State bankruptcy or
insolvency law or similar law, or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver, conservator or custodian
of all or any substantial part of its property, or shall admit in writing its
inability to pay or to meet its debts as they mature, or if a receiver or
custodian of it or of all or any substantial part of its property shall be
appointed, or if an order of any court shall be entered for relief against it
under the provisions of any applicable Federal or State bankruptcy or similar
law, or if any public officer shall have taken charge or control of the Warrant
Agent or of its property or affairs, for the purpose of rehabilitation,
conservation or liquidation, a successor Warrant Agent, qualified as set forth
in Section 4.04(a), shall be appointed by the Company by an instrument in
writing, filed with the successor Warrant Agent. Upon the appointment as herein
provided of a successor Warrant Agent and acceptance by the latter of such
appointment, the Warrant Agent so superseded shall cease to be Warrant Agent
under this Agreement.
(d) Any successor Warrant Agent appointed under this Agreement shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent under
this Agreement, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated
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<PAGE>
to transfer, deliver and pay over, and such successor Warrant Agent shall be
entitled to receive, all monies, securities and other property on deposit with
or held by such predecessor, as Warrant Agent under this Agreement.
(e) Any corporation into which the Warrant Agent may be merged or converted
or any corporation with which the Warrant Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Warrant Agent shall be a party, or any corporation to which the Warrant Agent
shall sell or otherwise transfer all or substantially all the assets and
business of the Warrant Agent, in each case provided that it shall be qualified
as set forth in Section 4.04(a), shall be the successor Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties to this Agreement, including, without limitation, any
successor to the Warrant Agent first named above.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Amendments.
(a) This Agreement and any Warrant Certificate may be amended by the
parties hereto by executing a supplemental warrant agreement (a "Supplemental
Agreement"), without the consent of the Holder of any Warrant, for the purpose
of (i) curing any ambiguity, or curing, correcting or supplementing any
defective provision contained herein, or making any other provisions with
respect to matters or questions arising under this Agreement that is not
inconsistent with the provisions of this Agreement or the Warrant Certificates,
(ii) evidencing the succession of another corporation to the Company and the
assumption by any such successor of the covenants of the Company contained in
this Warrant Agreement and the Warrants, (iii) evidencing and providing for the
acceptance of appointment by a successor Warrant Agent with respect to the
Warrants, [If Warrants are to be issued in Book-Entry form: (iv) evidencing and
providing for the acceptance of appointment by a successor Depository with
respect to each Book-Entry Warrant Certificate, (v) issuing definitive Warrant
Certificates in accordance with paragraph (b) of Section 1.03,] (vi) adding to
the covenants of the Company for the benefit of the Holders or surrendering any
right or power conferred upon the Company under this Agreement, (vii) appointing
a successor Warrant Agent, or (viii) amending this Agreement and the Warrants in
any manner that the Company may deem to be necessary or desirable and that will
not adversely affect the interests of the Holders in any material respect.
(b) The Company and the Warrant Agent may amend this Agreement and the
Warrants by executing a Supplemental Agreement with the consent of the Holders
of not fewer than a majority of the unexercised Warrants affected by such
amendment, for
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<PAGE>
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the rights
of the Holders under this Agreement; provided, however, that, without the
consent of each Holder of Warrants affected thereby, no such amendment may be
made that (i) changes the Warrants so as to reduce the [principal amount]
[number] of Warrant Securities purchasable upon exercise of the Warrants or so
as to increase the exercise price [If Warrants for Common Stock are offered:
(other than as provided by Section 2.04)], (ii) shortens the period of time
during which the Warrants may be exercised, (iii) otherwise adversely affects
the exercise rights of the Holders in any material respect, or (iv) reduces the
number of unexercised Warrants the consent of the Holders of which is required
for amendment of this Agreement or the Warrants.
SECTION 5.02. Merger, Consolidation, Sale, Transfer or Conveyance. The
Company may consolidate or merge with or into any other corporation, partnership
or trust or sell, lease, transfer or convey all or substantially all of its
assets to any other corporation, partnership or trust, provided that (i) either
(x) the Company is the continuing entity or (y) the entity (if other than the
Company) that is formed by or results from any such consolidation or merger or
that receives such assets is organized and existing under the laws of the United
States of America or a state thereof and such entity assumes the obligations of
the Company with respect to the performance and observance of all of the
covenants and conditions of this Agreement to be performed or observed by the
Company and (ii) the Company or such successor, as the case may be, must not
immediately be in default under this Agreement. If at any time there shall be
any consolidation or merger or any sale, lease, transfer, conveyance or other
disposition of all or substantially all of the assets of the Company, then in
any such event the successor or assuming entity shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
and in the Warrant Certificates as the Company; the Company shall thereupon be
relieved of any further obligation hereunder or under the Warrants, and, in the
event of any such sale, lease, transfer, conveyance (other than by way of lease)
or other disposition, the Company as the predecessor corporation may thereupon
or at any time thereafter be dissolved, wound up or liquidated. Such successor
or assuming corporation thereupon may cause to be signed, and may issue either
in its own name or in the name of the Company, Warrant Certificates evidencing
the Warrants not theretofore exercised, in exchange and substitution for the
Warrant Certificates theretofore issued. Such Warrant Certificates shall in all
respects have the same legal rank and benefit under this Agreement as the
Warrant Certificates evidencing the Warrants theretofore issued in accordance
with the terms of this Agreement as though such new Warrant Certificates had
been issued at the date of the execution hereof. In any case of any such merger
or consolidation or sale, lease, transfer, conveyance or other disposition of
all or substantially all of the assets of the Company, such changes in
phraseology and form (but not in substance) may be made in the new Warrant
Certificates, as may be appropriate.
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<PAGE>
SECTION 5.03. Notices and Demands to the Company and Warrant Agent. If the
Warrant Agent shall receive any notice or demand addressed to the Company by the
Holder [If Warrants are to be issued in Book-Entry form: or a Participant, as
the case may be], the Warrant Agent shall promptly forward such notice or demand
to the Company.
SECTION 5.04. Addresses. Any communications from the Company to the Warrant
Agent with respect to this Agreement shall be addressed to ____________________,
Attention: ________________________, and any communications from the Warrant
Agent to the Company with respect to this Agreement shall be addressed to
Monsanto Company, 800 North Lindbergh Boulevard, St. Louis, Missouri 63167,
Attention: _____________ (or such other address as shall be specified in writing
by the Warrant Agent or by the Company, as the case may be). The Company or the
Warrant Agent shall give notice to the Holders of Warrants by mailing written
notice by first class mail, postage prepaid, to such Holders as their names and
addresses appear in the books and records of the Warrant Agent [or, prior to the
Detachment Date, on the register of the Securities].
SECTION 5.05. GOVERNING LAW. THIS AGREEMENT AND EACH WARRANT CERTIFICATE
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
SECTION 5.06. Delivery of Prospectus. The Company shall furnish to the
Warrant Agent sufficient copies of a prospectus relating to the Warrant
Securities deliverable upon exercise of Warrants and complying in all material
respects with the Securities Act of 1933, as amended (the "Prospectus"), and the
Warrant Agent agrees that upon the exercise of any Warrant, the Warrant Agent
shall deliver a Prospectus to the Holder of such Warrant, prior to or
concurrently with the delivery of the Warrant Securities issued upon such
exercise.
SECTION 5.07. Obtaining of Governmental Approvals. The Company shall from
time to time take all action which may be necessary to obtain and keep effective
any and all permits, consents and approvals of governmental agencies and
authorities and securities acts filings under United States Federal and state
laws, which the Company may deem necessary or appropriate in connection with the
issuance, sale, transfer and delivery of the Warrants, the exercise of the
Warrants, the issuance, sale, transfer and delivery of the Warrant Securities to
be issued upon exercise of Warrants or upon the expiration of the period during
which the Warrants are exercisable.
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<PAGE>
SECTION 5.08. Payment of Taxes. The Company will pay all stamp and other
duties, if any, to which, under the laws of the United States of America, this
Agreement or the original issuance of the Warrants may be subject.
SECTION 5.09. Benefits of Warrant Agreement. Nothing in this Agreement or
any Warrant Certificate expressed or implied and nothing that may be inferred
from any of the provisions hereof or thereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the Company,
the Warrant Agent and their respective successors and assigns, [If Warrants are
to be issued in Book-Entry form: the Beneficial Owners] and the Holders any
right, remedy or claim under or by reason of this Agreement or any Warrant
Certificate or of any covenant, condition, stipulation, promise or agreement
hereof or thereof; and all covenants, conditions, stipulations, promises and
agreements contained in this Agreement or any Warrant Certificate shall be for
the sole and exclusive benefit of the Company and the Warrant Agent and their
respective successors and assigns and of the [If Warrants are to be issued in
Book-Entry form: Beneficial Owners and] Holders.
SECTION 5.10. Headings. The descriptive headings of the several Articles
and Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
SECTION 5.11. Severability. If any provision in this Agreement or in any
Warrant Certificate shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions, or of such provisions in any other jurisdiction, shall not in any
way be affected or impaired thereby.
SECTION 5.12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original; but
such counterparts shall together constitute but one and the same instrument.
SECTION 5.13. Inspection of Agreement. A copy of this Agreement shall be
available at all reasonable times at the principal corporate trust office of the
Warrant Agent and at the office of the Company at 800 North Lindbergh Boulevard,
St. Louis, Missouri 63167, for inspection by any Holder. The Warrant Agent may
require any such Holder to submit satisfactory proof of ownership for inspection
by it.
SECTION 5.14. Board of Director Action; No Liability of Directors,
Officers, Employees or Shareholders.
(a) Any determination that may be made by the Board of Directors of the
Company under this Agreement may be made by a duly authorized committee of the
Board or, to the extent permitted by applicable corporate law, by an individual
acting pursuant to authority granted by the Board of Directors.
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<PAGE>
(b) No director, officer, employee or shareholder of the Company, as such,
shall have any liability under this Agreement or the Warrants. By accepting the
Warrants, each holder of Warrants agrees to the foregoing and waives and
releases all such liability.
SECTION 5.15. Warrant Holders Not Shareholders. Nothing contained in this
Agreement or in any of the Warrant Certificates shall be construed as conferring
upon the holders thereof, as such, the right to vote or receive dividends or
notices as shareholders of the Company in respect of any meeting of shareholders
for the election of directors of the Company or any other matter to vote at any
such meeting, to exercise any rights whatsoever as shareholders of the Company
or to be deemed for any purpose the holder of Shares or of any other securities
of the Company that may at any time be issuable on the exercise or conversion of
the Warrant Certificates, nor shall anything contained herein or in the Warrant
Certificates be construed to confer upon the holders thereof, as such, any of
the other rights of a shareholder of the Company.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
MONSANTO COMPANY
By: __________________________
Authorized Officer
[WARRANT AGENT]
By: __________________________
Authorized Officer
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<PAGE>
EXHIBIT A
---------
[FORM OF WARRANT CERTIFICATE]
[Form of legend if Securities with Warrants that are not immediately detachable
or Warrants that are not immediately exercisable are offered: [PRIOR TO
_______________,] THIS WARRANT CERTIFICATE [(i) CANNOT BE TRANSFERRED OR
EXCHANGED UNLESS ATTACHED TO A [TITLE OF SECURITY] AND (II)] CANNOT BE EXERCISED
IN WHOLE OR IN PART.]
EXERCISABLE ONLY IF COUNTERSIGNED BY THE WARRANT
AGENT AS PROVIDED HEREIN.
Warrant Certificate evidencing
Warrants to Purchase
[Title of Warrant Securities]
as described herein.
MONSANTO COMPANY
No. ___________ CUSIP No. _____________
VOID AFTER [5:00 P.M.], NEW YORK TIME, ON _______ __, ___
This certifies that ________________________ or registered assigns is
the registered holder of [insert number initially issued] warrants to purchase
certain securities (the "Warrants"). Each Warrant entitles the holder thereof,
subject to the provisions contained herein and in the Warrant Agreement referred
to below, to purchase from Monsanto Company, a Delaware corporation (the
"Company"), [$_________ principal amount] [______] of the Company's [title of
Securities purchasable upon exercise of Warrants] [If Warrants for Depositary
Shares are to be offered: , each representing a 1/__th interest in a share of
[title of securities represented by the Depositary Shares]] (the "Warrant
Securities" [If Warrants for Depositary Shares are to be offered: , which term
shall also refer, as appropriate, to such [title of securities represented by
the Depositary Shares]), [issued or to be issued under the Indenture (as
hereinafter defined)], at the Exercise Price set forth below. The exercise price
of each Warrant (the "Exercise Price") shall be [modify as appropriate to
reflect the terms of the offered Warrants].
A-1
<PAGE>
Subject to the terms of the Warrant Agreement, each Warrant evidenced
hereby may be exercised in whole but not in part at any time, as specified
herein, [Unless Warrants may be exercised on only one date: on any Business Day
(as defined below) occurring during the period (the "Exercise Period")
commencing on [the date of issuance thereof] [________________ __, ____] and
ending at 5:00 P.M., New York time,] on ____________ __, ____ (the "Expiration
Date"). Each Warrant remaining unexercised after 5:00 P.M., New York time, on
the Expiration Date shall become void, and all rights of the holder of this
Warrant Certificate evidencing such Warrant shall cease.
The holder of the Warrants represented by this Warrant Certificate may
exercise any Warrant evidenced hereby by delivering, not later than 5:00 P.M.,
New York time, on [Unless Warrants may be exercised on only one date: any
Business Day during the Exercise Period (the "Exercise Date")] [If Warrants may
be exercised on only one date: the Expiration Date] to [name of Warrant Agent]
(the "Warrant Agent", which term includes any successor warrant agent under the
Warrant Agreement described below) at its corporate trust department at
___________________, (i) this Warrant Certificate [For Book-Entry Warrant
Certificate: and the Warrants to be exercised (the "Book-Entry Warrants") free
on the records of [The Depository Trust Company] (the "Depository") to an
account of the Warrant Agent at the Depository designated for such purpose in
writing by the Warrant Agent to the Depository], (ii) an election to purchase
("Election to Purchase"), [For definitive Warrant Certificates: properly
executed by the holder hereof on the reverse of this Warrant Certificate] [For
Book-Entry Warrant Certificates: properly executed by the institution in whose
account the Warrant is recorded on the records of the Depository (the
"Participant"), and substantially in the form included on the reverse of hereof]
and (iii) the Exercise Price for each Warrant to be exercised in lawful money of
the United States of America by certified or official bank check or by bank wire
transfer in immediately available funds. If any of (a) this Warrant Certificate
[For Book-Entry Warrant Certificates: or the Book-Entry Warrants], (b) the
Election to Purchase, or (c) the Exercise Price therefor, is received by the
Warrant Agent after 5:00 P.M., New York time, on [Unless Warrants may be
exercised on only one date: the specified Exercise Date, the Warrants will be
deemed to be received and exercised on the Business Day next succeeding the
Exercise Date. If the date specified as the Exercise Date is not a Business Day,
the Warrants will be deemed to be received and exercised on the next succeeding
day which is a Business Day. If the Warrants to be exercised are received or
deemed to be received after] the Expiration Date, the exercise thereof will be
null and void and any funds delivered to the Warrant Agent will be returned to
the holder as soon as practicable. In no event will interest accrue on funds
deposited with the Warrant Agent in respect of an exercise or attempted exercise
of Warrants. The validity of any exercise of Warrants will be determined by the
Warrant Agent in its sole discretion and such determination will be final and
binding upon the holder of the Warrants and the Company. Neither the Warrant
Agent nor the Company shall have any obligation to inform a holder of Warrants
of the invalidity of any exercise of Warrants. As used herein, the term
"Business Day" means any day which is not a Saturday or Sunday and is not a
legal holiday or a day on which banking institutions generally are authorized or
obligated by law or regulation to close in New York [or _____].
A-2
<PAGE>
Warrants may be exercised only in whole numbers of Warrants. [Unless
Warrants may be exercised on only one date: If fewer than all of the Warrants
evidenced by this Warrant Certificate are exercised, a new Warrant Certificate
for the number of Warrants remaining unexercised shall be executed by the
Company and countersigned by the Warrant Agent as provided in Section 1.02 of
the Warrant Agreement, and delivered to the holder of this Warrant Certificate
at the address specified on the books of the Warrant Agent or as otherwise
specified by such registered holder.]
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of ___________ __, ____ (the "Warrant Agreement"),
between the Company and the Warrant Agent and is subject to the terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the holder of this Warrant Certificate [For Book-Entry Warrant
Certificate: and the beneficial owners of the Warrants represented by this
Warrant Certificate] consent[s] by acceptance hereof. Copies of the Warrant
Agreement are on file and can be inspected at the above-mentioned office of the
Warrant Agent and at the office of the Company at 800 North Lindbergh Boulevard,
St. Louis, Missouri 63167.
[If the Warrant Securities are Debt Securities: The Warrant Securities
to be issued and delivered upon the exercise of the Warrants evidenced by this
Warrant Certificate will be issued under and in accordance with the Indenture,
dated as of _________ __, ____ (the "Indenture"), between the Company and [name
of trustee], as trustee (together with any successor or successors as such
trustee, the "Trustee"), and will be subject to the terms and provisions
contained in the Warrant Securities and in the Indenture.] The accrual of
[interest] [dividends], if any, on the Warrant Securities issued upon the valid
exercise of any Warrant will be governed by the terms of the applicable
[Indenture] [certificate of designations] and such Warrant Securities. From and
after the issuance of such Warrant Securities, the former holder of the Warrants
exercised will be entitled to the benefits of the [Indenture] [certificate of
designations] under which such Warrant Securities are issued and such former
holder's right to receive payments of [principal of (and premium, if any) and
interest, if any, on] [dividends and any other amounts payable in respect of]
the Warrant Securities shall be governed by, and shall be subject to, the terms
and provisions of such [Indenture] [certificate of designations] and the Warrant
Securities. Copies of the [Indenture, including the form of the Warrant
Securities,] [certificate of designations] are on file at the corporate trust
office of the Trustee.]
[If Warrants for Common Stock are offered: The Exercise Price and the
number of Warrant Securities purchasable upon the exercise of each Warrant shall
be subject to adjustment [as shall be determined by the Warrant Agent, which
determination shall be final and binding upon the holders of the Warrants and
the Company][as provided pursuant to Section 2.04 of the Warrant Agreement].
A-3
<PAGE>
[If Securities and Warrants are to be offered together: [If Warrants
are not immediately detachable: Prior to the Detachment Date,] The Warrants
represented by this Warrant Certificate may be exchanged or transferred only
together with the [title of Security] (the "Security") to which the Warrants are
attached, and only for the purpose of effecting, or in conjunction with, an
exchange or transfer of such Security. Additionally, [If Warrants are not
immediately detachable: on or prior to the Detachment Date,] each transfer of
such Security on the register of the Securities shall operate also to transfer
the Warrants to which such Securities was initially attached. [If Warrants are
not immediately detachable: From and after the Detachment Date, the above
provisions shall be of no further force and effect.]] Upon due presentment for
registration of transfer or exchange of this Warrant Certificate at the
corporate trust office of the Warrant Agent, the Company shall execute, and the
Warrant Agent shall countersign and deliver, as provided in Section 1.02 of the
Warrant Agreement, in the name of the designated transferee one or more new
Warrant Certificates of any authorized denomination evidencing in the aggregate
a like number of unexercised Warrants, subject to the limitations provided in
the Warrant Agreement.
Neither this Warrant Certificate nor the Warrants evidenced hereby
shall entitle the holder hereof or thereof to any of the rights of a holder of
the Warrant Securities, including, without limitation, [the right to receive the
payments of principal of (and premium, if any), and interest, if any, on Debt
Securities purchasable upon such exercise or to enforce any of the covenants in
the applicable Indenture] [the right to receive dividends, if any, or payments
upon the liquidation, dissolution or winding up of the Company or to exercise
voting rights, if any].
The Warrant Agreement and this Warrant Certificate may be amended as
provided in the Warrant Agreement including, under certain circumstances
described therein, without the consent of the holder of this Warrant Certificate
or the Warrants evidenced thereby.
THIS WARRANT CERTIFICATE AND ALL RIGHTS HEREUNDER AND UNDER THE
WARRANT AGREEMENT AND PROVISIONS HEREOF AND THEREOF SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REFERENCE TO APPLICABLE CONFLICTS OF LAW PROVISIONS).
This Warrant Certificate shall not be entitled to any benefit under
the Warrant Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced hereby may be exercised, unless this Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent.
A-4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated as of ________ __, ____
MONSANTO COMPANY
By: ________________________
Authorized Officer
[NAME OF WARRANT AGENT],
as Warrant Agent
By: ________________________
Authorized Officer
A-5
<PAGE>
[REVERSE]
Instructions for Exercise of Warrant
------------------------------------
To exercise the Warrants evidenced hereby, the holder [For Book-Entry
Warrant Certificate: or Participant] must, by 5:00 P.M., New York time, on the
specified Exercise Date, deliver to the Warrant Agent at its corporate trust
department, a certified or official bank check or a wire transfer in immediately
available funds, in each case payable to the Warrant Agent at Account No. ____,
in an amount equal to the Exercise Price in full for the Warrants exercised. In
addition, the Warrant holder [For Book-Entry Warrant Certificates: or
Participant] must provide the information required below and deliver this
Warrant Certificate to the Warrant Agent at the address set forth below [For
Book-Entry Warrant Certificates: and the Book-Entry Warrants to the Warrant
Agent in its account with the Depository designated for such purpose]. This
Warrant Certificate and the Election to Purchase must be received by the Warrant
Agent by 5:00 P.M., New York time, on the specified Exercise Date.
ELECTION TO PURCHASE
TO BE EXECUTED IF WARRANT HOLDER DESIRES
TO EXERCISE THE WARRANTS EVIDENCED HEREBY
The undersigned hereby irrevocably elects to exercise, on __________,
____ (the "Exercise Date"), _____________ Warrants, evidenced by this Warrant
Certificate, to purchase, [$_____________ principal amount] [_________________]
of the [title of Securities purchasable upon exercise of Warrants] [If Warrants
for Depositary Shares are to be offered: , each representing a 1/__th interest
in a share of [title of securities represented by the Depositary Shares]] (the
"Warrant Securities") of Monsanto Company, a Delaware corporation (the
"Company"), and represents that on or before the Exercise Date such holder has
tendered payment for such Warrant Securities by certified or official bank check
or bank wire transfer in immediately available funds to the order of the Company
c/o [Name and address of Warrant Agent], in the amount of $_____________ in
accordance with the terms hereof. The undersigned requests that said [principal
amount of] [number of] Warrant Securities be in fully registered form, in the
authorized denominations, registered in such names and delivered, all as
specified in accordance with the instructions set forth below.
[Unless Warrants may be exercised on only one date: If said [principal
amount] [number] of Warrant Securities is less than all of the Warrant
Securities purchasable hereunder, the undersigned requests that a new Warrant
Certificate
A-6
<PAGE>
evidencing the remaining balance of the Warrants evidenced hereby be issued and
delivered to the holder of the Warrant Certificate unless otherwise specified in
the instructions below.]
Dated: ______________ __, ____
Name__________________________
- ------------------------- (Please Print)
/ / / /- / / /- / / / / /
- -------------------------
(Insert Social Security
or Other Identifying
Number of Holder) Address_______________________
_______________________
Signature_____________________
This Warrant may only be exercised by presentation to the Warrant Agent at one
of the following locations:
By hand at
By mail at
The method of delivery of this Warrant Certificate is at the option and risk of
the exercising holder and the delivery of this Warrant Certificate will be
deemed to be made only when actually received by the Warrant Agent. If delivery
is by mail, registered mail with return receipt requested, properly insured, is
recommended. In all cases, sufficient time should be allowed to assure timely
delivery.
(Instructions as to form and delivery of Warrant Securities and/or Warrant
Certificates)
A-7
<PAGE>
Name in which Warrant Securities
are to be registered if other than
in the name of the registered holder
of this Warrant Certificate:
______________________________
Address to which Warrant Securities
are to be mailed if other than to the
address of the registered holder of
this Warrant Certificate as shown on
the books of the Warrant Agent:
______________________________
(Street Address)
______________________________
(City and State) (Zip Code)
A-8
<PAGE>
[Except for Book-Entry Warrant Certificate:
Name in which Warrant Certificate
evidencing unexercised Warrants, if any,
are to be registered if other than in the
name of the registered holder of this
Warrant Certificate:
_____________________________
Address to which certificate representing
unexercised Warrants, if any, are to be
mailed if other than to the address of
the registered holder of this Warrant
Certificate as shown on the books of
the Warrant Agent:
______________________________
(Street Address)
______________________________
(City and State) (Zip Code) ]
Dated:
______________________________
Signature
([Except for Book-Entry Warrant
Certificate: Signature must conform in
all respects to the name of the holder
as specified on the face of this Warrant
Certificate.] If Warrant Securities, or
a Warrant Certificate evidencing
unexercised Warrants, are to be issued
in a name other than that of the
registered holder hereof or are to be
delivered to an address other than the
address of such holder as shown on the
books of the Warrant Agent, the above
signature must be guaranteed by a member
firm of a registered national stock
exchange, a member of the National
Association of
A-9
<PAGE>
Securities Dealers, Inc., a participant
in the Security Transfer Agents
Medallion Program or the Stock Exchange
Medallion Program, or by a commercial
bank or trust company having an office
or correspondent in the United States.)
SIGNATURE GUARANTEE
- -------------------
Name of Firm _________________
Address ______________________
Area Code
and Number ___________________
Authorized
Signature ____________________
Name _________________________
Title ________________________
Dated: ________________, 19__
A-10
<PAGE>
ASSIGNMENT
(FORM OF ASSIGNMENT TO BE EXECUTED IF WARRANT HOLDER
DESIRES TO TRANSFER WARRANTS EVIDENCED HEREBY)
FOR VALUE RECEIVED, _________________ hereby sell(s), assign(s) and
transfer(s) unto ________________________________
__________________________________ ___________________________________
(Please print name and address (Please insert social security or
including zip code of assignee) other identifying number of assignee)
the rights represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ____________ Attorney to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution in the premises.
Dated:
__________________________________
Signature
(Signature must conform in all respects to
the name of the holder as specified on the
face of this Warrant Certificate and must
bear a signature guarantee by a member firm
of a registered national securities exchange,
a member of the National Association of
Securities Dealers, Inc., a participant in
the Security Transfer Agents Medallion
Program or the Stock Exchange Medallion
Program, or by a commercial bank or trust
company having an office or correspondent in
the United States)
SIGNATURE GUARANTEE
Name of Firm _________________
Address ______________________
Area Code
and Number ___________________
Authorized
Signature ____________________
Name _________________________
Title ________________________
Dated: ________________, 19__
A-11
<PAGE>
EXHIBIT 4.9
================================================================================
MONSANTO COMPANY
AND
_______________________________________,
as Purchase Contract Agent
_________________
PURCHASE CONTRACT AGREEMENT
_________________
Dated as of ____________, 1998
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES.................................................................. 1
RECITALS................................................................. 1
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions............................................. 1
Act.............................................................. 1
Affiliate........................................................ 2
Agent............................................................ 2
Agreement........................................................ 2
Applicable Market Value.......................................... 2
Board of Directors............................................... 2
Board Resolution................................................. 2
Business Day..................................................... 2
Closing Price.................................................... 2
Collateral Agent................................................. 2
Common Stock..................................................... 3
Company.......................................................... 3
Contract Fee..................................................... 3
Corporate Trust Office........................................... 3
Applicable Market Price.......................................... 3
Depositary....................................................... 3
Early Settlement................................................. 3
Early Settlement Amount.......................................... 3
Early Settlement Date............................................ 3
Early Settlement Rate............................................ 3
Exchange Act..................................................... 3
Excess Underlying Securities..................................... 3
Expiration Date.................................................. 3
Expiration Time.................................................. 4
Final Settlement Date............................................ 4
Final Settlement Fund............................................ 4
Global Security Certificate...................................... 4
Holder........................................................... 4
Issuer Order..................................................... 4
Issuer Request................................................... 4
NYSE............................................................. 4
Officers' Certificate............................................ 4
Opinion of Counsel............................................... 4
Outstanding Securities........................................... 4
Outstanding Security Certificates................................ 5
Payment Date..................................................... 5
</TABLE>
i
<PAGE>
<TABLE>
<CAPTION>
Page
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<S> <C>
Person........................................................... 5
Pledge........................................................... 5
Pledge Agreement................................................. 5
Predecessor Security Certificate................................. 6
Purchase Contract................................................ 6
Purchased Shares................................................. 6
Record Date...................................................... 6
Reorganization Event............................................. 6
Responsible Officer.............................................. 6
Security......................................................... 6
Security Certificate............................................. 6
Security Register................................................ 6
Security Registrar............................................... 6
Settlement Rate.................................................. 6
Stated Amount.................................................... 7
Termination Date................................................. 7
Termination Event................................................ 7
Threshold Appreciation Price..................................... 7
TIA.............................................................. 7
Trading Day...................................................... 7
Underlying Securities............................................ 7
Underwriting Agreement........................................... 8
Vice President................................................... 8
Section 102. Compliance Certificates and Opinions................... 8
Section 103. Form of Documents Delivered to Agent................... 9
Section 104. Acts of Holders; Record Dates.......................... 9
Section 105. Notices, etc., to Agent and the Company................ 11
Section 106. Notice to Holders; Waiver.............................. 12
Section 107. Effect of Headings and Table of Contents............... 12
Section 108. Successors and Assigns................................. 12
Section 109. Separability Clause.................................... 12
Section 110. Benefits of Agreement.................................. 13
Section 111. Governing Law.......................................... 13
Section 112. Legal Holidays......................................... 13
Section 113. Counterparts........................................... 14
Section 114. Inspection of Agreement................................ 14
ARTICLE TWO
Security Certificate Forms
Section 201. Forms of Security Certificates Generally............... 14
Section 202. Form of Agent's Certificate of
Authentication......................................... 15
ARTICLE THREE
</TABLE>
ii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
The Securities
Section 301. Title and Terms; Denominations......................... 15
Section 302. Rights and Obligations Evidenced by the
Security Certificates.................................. 15
Section 303. Execution, Authentication, Delivery and
Dating................................................. 16
Section 304. Temporary Security Certificates........................ 17
Section 305. Registration; Registration of Transfer
and Exchange........................................... 17
Section 306. Mutilated, Destroyed, Lost and Stolen
Security Certificates.................................. 20
Section 307. Persons Deemed Owners.................................. 21
Section 308. Cancellation........................................... 22
Section 309. Securities Not Separable............................... 22
ARTICLE FOUR
The Underlying Securities
Section 401. Payment of Interest; Interest Rights
Preserved.............................................. 23
Section 402. Transfer of Underlying Securities Upon
Occurrence of Termination Event........................ 23
ARTICLE FIVE
The Purchase Contracts
Section 501. Purchase of Shares of Common Stock..................... 25
Section 502. Contract Fees.......................................... 26
Section 503. Deferral of Payment Dates For Contract
Fee.................................................... 27
Section 504. Payment of Purchase Price.............................. 28
Section 505. Issuance of Shares of Common Stock..................... 28
Section 506. Adjustment of Settlement Rate.......................... 29
Section 507. Notice of Adjustments and Certain Other
Events................................................. 36
Section 508. Termination Event; Notice.............................. 37
Section 509. Early Settlement....................................... 37
Section 510. No Fractional Shares................................... 39
Section 511. Charges and Taxes...................................... 39
ARTICLE SIX
Remedies
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 601. Unconditional Right of Holders to
Receive Contract Fees and to Purchase
Common Stock........................................... 40
Section 602. Restoration of Rights and Remedies..................... 40
Section 603. Rights and Remedies Cumulative......................... 40
Section 604. Delay or Omission Not Waiver........................... 41
Section 605. Undertaking for Costs.................................. 41
Section 606. Waiver of Stay or Extension Laws....................... 41
ARTICLE SEVEN
The Agent
Section 701. Certain Duties and Responsibilities.................... 42
Section 702. Notice of Default...................................... 43
Section 703. Certain Rights of Agent................................ 43
Section 704. Not Responsible for Recitals or Issuance
of Securities.......................................... 44
Section 705. May Hold Securities.................................... 44
Section 706. Money Held in Trust.................................... 45
Section 707. Compensation and Reimbursement......................... 45
Section 708. Corporate Agent Required; Eligibility.................. 45
Section 709. Resignation and Removal; Appointment of
Successor.............................................. 46
Section 710. Acceptance of Appointment by Successor................. 47
Section 711. Merger, Conversion, Consolidation or
Succession to Business................................. 48
Section 712. Preservation of Information;
Communications to Holders.............................. 48
Section 713. No Obligations of Agent................................ 49
Section 714. Tax Compliance......................................... 49
ARTICLE EIGHT
Supplemental Agreements
Section 801. Supplemental Agreements Without Consent
of Holders............................................. 50
Section 802. Supplemental Agreements with Consent of
Holders................................................ 50
Section 803. Execution of Supplemental Agreements................... 51
Section 804. Effect of Supplemental Agreements...................... 52
Section 805. Reference to Supplemental Agreements................... 52
ARTICLE NINE
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
Page
----
<S> <C>
Consolidation, Merger, Sale or Conveyance
Section 901. Covenant Not to Merge, Consolidate, Sell
or Convey Property Except Under Certain
Conditions............................................. 52
Section 902. Rights and Duties of Successor Corporation............. 53
Section 903. Opinion of Counsel to Agent............................ 53
ARTICLE TEN
Covenants
Section 1001. Performance Under Purchase Contracts................... 54
Section 1002. Maintenance of Office or Agency........................ 54
Section 1003. Company to Reserve Common Stock........................ 55
Section 1004. Covenants as to Common Stock........................... 55
Section 1005. Statements of Officers of the Company as
to Default............................................. 55
TESTIMONIUM........................................................... 56
SIGNATURES............................................................ 56
</TABLE>
EXHIBIT A Form of Security Certificate
v
<PAGE>
PURCHASE CONTRACT AGREEMENT, dated as of __________, 1998, between
MONSANTO COMPANY, a Delaware corporation (the "Company"), and
__________________________, acting as purchase contract agent for the Holders of
Securities from time to time (the "Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Security Certificates evidencing the Securities.
All things necessary to make the Company's obligations under the
Securities, when the Security Certificates are executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent, as
in this Agreement provided, the valid obligations of the Company, and to
constitute these presents a valid agreement of the Company, in accordance with
its terms, have been done.
WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
-----------
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
nouns and pronouns of the masculine gender include the feminine and neuter
genders; and
(2) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" when used with respect to any Holder, has the meaning specified
in Section 104.
<PAGE>
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means the Person named as the "Agent" in the first paragraph
of this instrument until a successor Agent shall have become such pursuant to
the applicable provisions of this Agreement, and thereafter "Agent" shall mean
the Person who is then the Agent hereunder.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Market Value" has the meaning specified in Section 501.
"Board of Directors" means the board of directors of the Company or a
duly authorized committee of that board.
"Board Resolution" means one or more resolutions of the Board of
Directors, a copy of which has been certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification and delivered
to the Agent.
"Business Day" means any day that is not a Saturday, Sunday or a day
on which the NYSE or banking institutions or trust companies in The City of New
York are authorized or obligated by law or executive order to be closed.
"Closing Price" has the meaning specified in Section 501.
"Collateral Agent" means ________________________, as Collateral
Agent under the Pledge Agreement until a successor Collateral Agent shall have
become such pursuant to the applicable provisions of the Pledge Agreement, and
thereafter "Collateral Agent" shall mean the Person who is then the Collateral
Agent thereunder.
-2-
<PAGE>
"Common Stock" means the Common Stock, par value $2.00 per share, of
the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Contract Fee" means the fee payable by the Company in respect of
each Purchase Contract, equal to ___% per annum of the Stated Amount, accruing
from __________, _______, computed on the basis of the actual number of days
elapsed in a year of 365 or 366 days, as the case may be, plus any additional
fees accrued pursuant to Section 503.
"Corporate Trust Office" means the principal office of the Agent in
the Borough of Manhattan, The City of New York, at which at any particular time
its corporate trust business shall be administered, which office at the date
hereof is located at __________________, New York, New York _____.
"Current Market Price" has the meaning specified in Section
506(a)(8).
"Depositary" means a clearing agency registered under the Exchange
Act that is designated to act as Depositary for the Securities as contemplated
by Section 305.
"Early Settlement" has the meaning specified in Section 509(a).
"Early Settlement Amount" has the meaning specified in Section
509(a).
"Early Settlement Date" has the meaning specified in Section 509(a).
"Early Settlement Rate" has the meaning specified in Section 509(b).
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time, and the
rules and regulations promulgated thereunder.
"Excess Underlying Securities" has the meaning specified in Section
402.
"Expiration Date" has the meaning specified in Section 104.
-3-
<PAGE>
"Expiration Time" has the meaning specified in Section 506(a)(6).
"Final Settlement Date" means __________, ______.
"Final Settlement Fund" has the meaning specified in Section 505.
"Global Security Certificate" means a Security Certificate that
evidences all or part of the Securities and is registered in the name of a
Depositary or a nominee thereof.
"Holder," when used with respect to a Security Certificate (or a
Security), means a Person in whose name the Security evidenced by such Security
Certificate (or the Security Certificate evidencing such Security) is registered
in the Security Register.
"Issuer Order" or "Issuer Request" means a written order or request
signed in the name of the Company by its Chairman of the Board, any Vice
Chairman of the Board, any Vice Chairman, its President or a Vice President and
by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Agent.
"NYSE" has the meaning specified in Section 501.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, any Vice Chairman of the Board, any Vice Chairman, the President or
any Vice President and by the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary of the Company and delivered to the Agent.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company.
"Outstanding Securities" means, as of the date of determination, all
Securities evidenced by then Outstanding Security Certificates, except:
(i) If a Termination Event has occurred, Securities for which the
Underlying Securities have been theretofore deposited with the Agent in
trust for the Holders of such Securities; and
(ii) On and after the applicable Early Settlement Date, Securities
as to which the Holder has elected to effect Early Termination of the
related Purchase Contracts;
-4-
<PAGE>
provided, however, that in determining whether the Holders of the requisite
- -------- -------
number of Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
Affiliate of the Company shall be disregarded and deemed not to be outstanding,
except that, in determining whether the Agent shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Securities which the Agent knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
outstanding if the pledgee establishes to the satisfaction of the Agent the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any Affiliate of the Company.
"Outstanding Security Certificates" means, as of the date of
determination, all Security Certificates theretofore authenticated, executed and
delivered under this Agreement, except:
(i) Security Certificates theretofore cancelled by the Agent or
delivered to the Agent for cancellation; and
(ii) Security Certificates in exchange for or in lieu of which
other Security Certificates have been authenticated, executed on behalf of
the Holder and delivered pursuant to this Agreement, other than any such
Security Certificate in respect of which there shall have been presented to
the Agent proof satisfactory to it that such Security Certificate is held
by a bona fide purchaser in whose hands the Securities evidenced by such
Security Certificate are valid obligations of the Company.
"Payment Date" means each __________ and __________, commencing
__________, _____.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" means the pledge under the Pledge Agreement of the
Underlying Securities constituting a part of the Securities.
"Pledge Agreement" means the Pledge Agreement, dated as of the date
hereof, among the Company, the
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<PAGE>
Collateral Agent and the Agent, on its own behalf and as attorney-in-fact for
the Holders from time to time of the Securities.
"Predecessor Security Certificate" of any particular Security
Certificate means every previous Security Certificate evidencing all or a
portion of the rights and obligations of the Holder under the Securities
evidenced thereby; and, for the purposes of this definition, any Security
Certificate authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security Certificate shall be
deemed to evidence the same rights and obligations of the Holder as the
mutilated, destroyed, lost or stolen Security Certificate.
"Purchase Contract," when used with respect to any Security, means
the contract obligating the Company to sell and the Holder of such Security to
purchase Common Stock on the terms and subject to the conditions set forth in
Article Five hereof.
"Purchased Shares" has the meaning specified in Section 506(a)(6).
"Record Date" for the interest and Contract Fees payable on any
Payment Date means the ______ or _______ (whether or not a Business Day), as the
case may be, next preceding such Payment Date.
"Reorganization Event" has the meaning specified in Section 506(b).
"Responsible Officer," when used with respect to the Agent, means any
officer of the Agent assigned by the Agent to administer its corporate trust
matters.
"Security" means the collective rights and obligations of a Holder of
a Security Certificate in respect of Underlying Securities with a principal
amount equal to the Stated Amount, subject to the Pledge thereof, and a Purchase
Contract.
"Security Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Securities specified on such
certificate.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Settlement Rate" has the meaning specified in Section 501.
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<PAGE>
"Stated Amount" means $____________.
"Termination Date" means the date, if any, on which a Termination
Event occurs.
"Termination Event" means the occurrence of any of the following
events: (i) at any time on or prior to the Final Settlement Date, a decree or
order by a court having jurisdiction in the premises shall have been entered
adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization of the Company under the United States
Bankruptcy Code or any other similar applicable Federal or State law, and,
unless such decree or order shall have been entered within 60 days prior to the
Final Settlement Date, such decree or order shall have continued undischarged
and unstayed for a period of 60 days; or (ii) a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of the Company or
of its property, or for the winding up or liquidation of its affairs, shall have
been entered, and, unless such decree or order shall have been entered within 60
days prior to the Final Settlement Date, such decree or order shall have
continued undischarged and unstayed for a period of 60 days, or (iii) at any
time on or prior to the Final Settlement Date the Company shall institute
proceedings to be adjudicated a bankrupt, or shall consent to the filing of a
bankruptcy proceeding against it, or shall file a petition or answer or consent
seeking reorganization under the United States Bankruptcy Code or any other
similar applicable Federal or State law, or shall consent to the filing of any
such petition, or shall consent to the appointment of a receiver or liquidator
or trustee or assignee in bankruptcy or insolvency of it or of its property, or
shall make an assignment for the benefit of creditors, or shall admit in writing
its inability to pay its debts generally as they become due.
"Threshold Appreciation Price" has the meaning specified in Section
501.
"TIA" means the Trust Indenture Act of 1939, as amended, or any
successor statute.
"Trading Day" has the meaning specified in Section 501.
"Underlying Securities" means the [type and description of underlying
securities] pledged to the Collateral Agent pursuant to the Pledge.
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<PAGE>
"Underwriting Agreement" means the Underwriting Agreement dated
__________, ______ between the Company and _______________________________, as
representatives of the several Underwriters named therein.
"Vice President" means any vice president, whether or not designated
by a number or a word or words added before or after the title "vice president."
Section 102. Compliance Certificates and Opinions.
------------------------------------
Except as otherwise expressly provided by this Agreement, upon any
application or request by the Company to the Agent to take any action under any
provision of this Agreement, the Company shall furnish to the Agent an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Agreement relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Agreement relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Agreement shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
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 each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
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<PAGE>
Section 103. Form of Documents Delivered to Agent.
------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate of, or
representations by, counsel or an Opinion of Counsel, unless such officer knows,
or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate of, or
representations by, counsel or Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Agreement, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Agent and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such
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<PAGE>
agent shall be sufficient for any purpose of this Agreement and (subject to
Section 701) conclusive in favor of the Agent and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Agent deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) 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 Certificate evidencing
such 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 Agent or the Company in reliance thereon, whether or not notation
of such action is made upon such Security Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Agreement to be given, made or taken by
Holders of Securities. If any record date is set pursuant to this paragraph,
the Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
--------
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite number of Outstanding Securities on such record
date. Nothing in this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be cancelled
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<PAGE>
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite number of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Company, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Agent in writing and to each Holder of
Securities in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the
Company may designate any date as the "Expiration Date" and from time to time
may change the Expiration Date to any earlier or later day; provided that no
--------
such change shall be effective unless notice of the proposed new Expiration Date
is given to the Agent in writing, and to each Holder of Securities in the manner
set forth in Section 106, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section, the Company shall be deemed to have initially designated the
180th day after such record date as the Expiration Date with respect thereto,
subject to its right to change the Expiration Date as provided in this
paragraph. Notwithstanding the foregoing, no Expiration Date shall be later
than the 180th day after the applicable record date.
Section 105. Notices, etc., to Agent and the Company.
---------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Agreement to
be made upon, given or furnished to, or filed with,
(1) the Agent by any Holder or by the Company shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or
mailed, first-class postage prepaid, to the Agent at [Address], Attention:
_________________________, or at any other address previously furnished in
writing by the Agent to the Holders and the Company, or
(2) The Company by the Agent or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if
made, given, furnished or filed in writing and personally delivered or
mailed, first-class postage prepaid, to the Company at Monsanto Company,
800 North Lindbergh Boulevard, St. Louis, Missouri 63167, Attention:
_________,
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<PAGE>
or at any other address previously furnished in writing to the Agent by the
Company.
Section 106. Notice to Holders; Waiver.
-------------------------
Where this Agreement provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Agreement provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Agent, but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Agent shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 108. Successors and Assigns.
----------------------
All covenants and agreements in this Agreement by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 109. Separability Clause.
-------------------
In case any provision in this Agreement or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions hereof and thereof shall not in any way be affected or
impaired thereby.
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<PAGE>
Section 110. Benefits of Agreement.
---------------------
Nothing in this Agreement or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and, to the extent provided hereby, the Holders, any benefits or any
legal or equitable right, remedy or claim under this Agreement. The Holders
from time to time shall be beneficiaries of this Agreement and shall be bound by
all of the terms and conditions hereof and of the Securities evidenced by their
Security Certificates by their acceptance of delivery thereof.
Section 111. Governing Law.
-------------
This Agreement and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, without regard to the
conflict of laws provisions thereof.
Section 112. Legal Holidays.
--------------
In any case where any Payment Date, any Early Settlement Date or the
Final Settlement Date shall not be a Business Day, then (notwithstanding any
other provision of this Agreement or of the Securities) payment in respect of
interest on Underlying Securities or Contract Fees shall not be made, Purchase
Contracts shall not be performed and Early Settlement shall not be effected on
such date, but such payments shall be made, or the Purchase Contracts shall be
performed or Early Settlement shall be effected, as applicable, on the next
succeeding Business Day with the same force and effect as if made on such
Payment Date, Early Settlement Date or Final Settlement Date, as the case may
be; provided, that no interest shall accrue or be payable by the Company or any
--------
Holder for the period from and after any such Payment Date, Early Settlement
Date or Final Settlement Date, as the case may be, except that, if such next
succeeding Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day with the same force and
effect as if made on such Payment Date, Early Settlement Date or Final
Settlement Date, as the case may be.
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<PAGE>
Section 113. Counterparts.
------------
This Agreement may be executed in any number of counterparts, each of
which, when so executed, shall be deemed an original, but all such counterparts
shall together constitute one and the same instrument.
Section 114. Inspection of Agreement.
-----------------------
A copy of this Agreement shall be available at all reasonable times at
the Corporate Trust Office for inspection by any Holder.
ARTICLE TWO
Security Certificate Forms
Section 201. Forms of Security Certificates Generally.
----------------------------------------
The Security Certificates (including the form of Purchase Contracts
forming part of the Securities evidenced thereby) shall be in substantially the
form set forth in Exhibit A hereto, with such letters, numbers or other marks of
identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Securities are listed or any Depositary
therefor, or as may, consistently herewith, be determined by the officers of the
Company executing such Security Certificates, as evidenced by their execution of
the Security Certificates.
The definitive Security Certificates shall be printed, lithographed or
engraved on steel engraved borders or may be produced in any other manner, all
as determined by the officers of the Company executing the Security
Certificates, consistent with the provisions of this Agreement, as evidenced by
their execution thereof.
Every Global Security Certificate authenticated, executed on behalf of
the Holders and delivered hereunder shall bear a legend in substantially the
following form:
THIS SECURITY CERTIFICATE IS A GLOBAL SECURITY CERTIFICATE WITHIN THE
MEANING OF THE PURCHASE CONTRACT AGREEMENT HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY
CERTIFICATE MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS SECURITY CERTIFICATE IN
WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER
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<PAGE>
THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE PURCHASE CONTRACT AGREEMENT.
Section 202. Form of Agent's Certificate of Authentication.
---------------------------------------------
The form of the Agent's certificate of authentication of the
Securities shall be in substantially the form set forth on the form of the
Security Certificates.
ARTICLE THREE
The Securities
Section 301. Title and Terms; Denominations.
------------------------------
The aggregate number of Securities evidenced by Security Certificates
authenticated, executed on behalf of the Holders and delivered hereunder is
limited to __________ [(subject to increase up to a maximum of _________ to the
extent the over-allotment option of the underwriters under the Underwriting
Agreement is exercised)], except for Security Certificates authenticated,
executed and delivered upon registration of transfer of, in exchange for, or in
lieu of, other Security Certificates pursuant to Section 304, 305, 306, 509 or
805.
The Security Certificates shall be issuable only in registered form
and only in denominations of a single Security and any integral multiple
thereof.
Section 302. Rights and Obligations Evidenced by the Security Certificates.
-------------------------------------------------------------
Each Security Certificate shall evidence the number of Securities
specified therein, with each such Security representing the ownership by the
Holder thereof of Underlying Securities with a principal amount equal to the
Stated Amount, subject to the Pledge of such Underlying Securities by such
Holder pursuant to the Pledge Agreement, and the rights and obligations of the
Holder under one Purchase Contract. Prior to the purchase, if any, of shares of
Common Stock under the Purchase Contracts, the Securities shall not entitle the
Holders to any of the rights of a holder of shares of Common Stock, including,
without limitation, the right to vote or receive any dividends or other payments
or to consent or to receive notice as stockholders in respect of the meetings of
stockholders or for the election of directors of the Company or for any other
matter, or any other rights whatsoever as
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<PAGE>
stockholders, of the Company, except to the extent otherwise expressly provided
in this Agreement.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
Upon the execution and delivery of this Agreement, and at any time and
from time to time thereafter, the Company may deliver Security Certificates
executed by the Company to the Agent for authentication, execution on behalf of
the Holders and delivery, together with its Issuer Order for authentication of
such Security Certificates, and the Agent in accordance with such Issuer Order
shall authenticate, execute on behalf of the Holder and deliver such Security
Certificates.
The Security Certificates shall be executed on behalf of the Company
by its Chairman of the Board, its Vice Chairman of the Board, any Vice Chairman,
its President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Security Certificates may be manual or
facsimile.
Security Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Security
Certificates or did not hold such offices at the date of such Security
Certificates.
No Purchase Contract underlying a Security evidenced by a Security
Certificate shall be valid until such Security Certificate has been executed on
behalf of the Holder by the manual signature of an authorized signatory of the
Agent, as such Holder's attorney-in-fact. Such signature by an authorized
signatory of the Agent shall be conclusive evidence that the Holder of such
Security Certificate has entered into the Purchase Contracts underlying the
Securities evidenced by such Security Certificate.
Each Security Certificate shall be dated the date of its
authentication.
No Security Certificate shall be entitled to any benefit under this
Agreement or be valid or obligatory for any purpose unless there appears on such
Security Certificate a certificate of authentication substantially in the form
provided for herein executed by an authorized
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<PAGE>
signatory of the Agent by manual signature, and such certificate upon any
Security Certificate shall be conclusive evidence, and the only evidence, that
such Security Certificate has been duly authenticated and delivered hereunder.
Section 304. Temporary Security Certificates.
-------------------------------
Pending the preparation of definitive Security Certificates, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holders, and deliver, in lieu of such
definitive Security Certificates, temporary Security Certificates which are in
substantially the form set forth in Exhibit A hereto, with such letters, numbers
or other marks of identification or designation and such legends or endorsements
printed, lithographed or engraved thereon as may be required by the rules of any
securities exchange on which the Securities are listed, or as may, consistently
herewith, be determined by the officers of the Company executing such Security
Certificates, as evidenced by their execution of the Security Certificates.
If temporary Security Certificates are issued, the Company will cause
definitive Security Certificates to be prepared without unreasonable delay.
After the preparation of definitive Security Certificates, the temporary
Security Certificates shall be exchangeable for definitive Security Certificates
upon surrender of the temporary Security Certificates at the Corporate Trust
Office, at the expense of the Company and without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Security Certificates,
the Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
one or more definitive Security Certificates of authorized denominations and
evidencing a like number of Securities as the temporary Security Certificate or
Security Certificates so surrendered. Until so exchanged, the temporary
Security Certificates shall in all respects evidence the same benefits and the
same obligations with respect to the Securities evidenced thereby as definitive
Security Certificates.
Section 305. Registration; Registration of Transfer and Exchange.
---------------------------------------------------
The Agent shall keep at the Corporate Trust Office a register (the
register maintained in such office being herein referred to as the "Security
Register") in which, subject to such reasonable regulations as it may prescribe,
the Agent shall provide for the registration of Security
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<PAGE>
Certificates and of transfers of Security Certificates (the Agent, in such
capacity, the "Security Registrar").
Upon surrender for registration of transfer of any Security
Certificate at the Corporate Trust Office, the Company shall execute and deliver
to the Agent, and the Agent shall authenticate, execute on behalf of the
designated transferee or transferees, and deliver, in the name of the designated
transferee or transferees, one or more new Security Certificates of any
authorized denominations and evidencing a like number of Securities.
At the option of the Holder, Security Certificates may be exchanged
for other Security Certificates, of any authorized denominations and evidencing
a like number of Securities, upon surrender of the Security Certificates to be
exchanged at the Corporate Trust Office. Whenever any Security Certificates are
so surrendered for exchange, the Company shall execute and deliver to the Agent,
and the Agent shall authenticate, execute on behalf of the Holder, and deliver
the Security Certificates which the Holder making the exchange is entitled to
receive.
All Security Certificates issued upon any registration of transfer or
exchange of a Security Certificate shall evidence the ownership of the same
number of Securities and be entitled to the same benefits and subject to the
same obligations, under this Agreement as the Securities evidenced by the
Security Certificate surrendered upon such registration of transfer or exchange.
Every Security Certificate presented or surrendered for registration
of transfer or for exchange shall (if so required by the Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Agent duly executed, by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of a Security Certificate, but the Company and the Agent may require
payment from the Holder 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 Security Certificates, other than any exchanges pursuant
to Sections 306 and 805 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder and deliver any Security
Certificate
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<PAGE>
presented or surrendered for registration of transfer or for exchange on or
after the Final Settlement Date or the Termination Date. In lieu of delivery of
a new Security Certificate, upon satisfaction of the applicable conditions
specified above in this Section and receipt of appropriate registration or
transfer instructions from such Holder, the Agent shall (i) if the Final
Settlement Date has occurred, deliver the shares of Common Stock issuable in
respect of the Purchase Contracts forming a part of the Securities evidenced by
such Security Certificate, or (ii) if a Termination Event shall have occurred
prior to the Final Settlement Date, transfer the principal amount of the
Underlying Securities evidenced thereby, in each case subject to the applicable
conditions and in accordance with the applicable provisions of Article Five
hereof.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Security Certificates:
(1) Each Global Security Certificate authenticated and executed on
behalf of the Holders under this Agreement shall be registered in the name
of the Depositary designated for such Global Security Certificate or a
nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security Certificate shall
constitute a single Security Certificate for all purposes of this
Agreement.
(2) Notwithstanding any other provision in this Agreement, no Global
Security Certificate may be exchanged in whole or in part for Security
Certificates registered, and no transfer of a Global Security Certificate
in whole or in part may be registered, in the name of any Person other than
the Depositary for such Global Security Certificate or a nominee thereof
unless (A) such Depositary (i) has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Security
Certificate or (ii) has ceased to be a clearing agency registered under the
Exchange Act or (b) there shall have occurred and be continuing a default
by the Company in respect to its obligations under one or more Purchase
Contracts.
(3) Subject to Clause (2) above, any exchange of a Global Security
Certificate for other Security Certificates may be made in whole or in
part, and all Security Certificates issued in exchange for a Global
Security Certificate or any portion thereof shall be registered in such
names as the Depositary for such Global Security Certificate shall direct.
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<PAGE>
(4) Every Security Certificate authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security Certificate or any portion thereof, whether pursuant to this
Section, Section 304, 306, 509 or 805 or otherwise, shall be authenticated,
executed on behalf of the Holders and delivered in the form of, and shall
be, a Global Security Certificate, unless such Security Certificate is
registered in the name of a Person other than the Depositary for such
Global Security Certificate or a nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Security Certificates.
-----------------------------------------------------------
If any mutilated Security Certificate is surrendered to the Agent, the
Company shall execute and deliver to the Agent, and the Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
a new Security Certificate, evidencing the same number of Securities and bearing
a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Agent (i) evidence
to their satisfaction of the destruction, loss or theft of any Security
Certificate, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of any of them harmless, then, in the absence of
notice to the Company or the Agent that such Security Certificate has been
acquired by a bona fide purchaser, the Company shall execute and deliver to the
Agent, and the Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen Security
Certificate, a new Security Certificate, evidencing the same number of
Securities and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Agent, and the Agent shall not be obligated to
authenticate, execute on behalf of the Holder, and deliver to the Holder, a
Security Certificate on or after the Final Settlement Date or the Termination
Date. In lieu of delivery of a new Security Certificate, upon satisfaction of
the applicable conditions specified above in this Section and receipt of
appropriate registration or transfer instructions from such Holder, the Agent
shall (i) if the Final Settlement Date has occurred, deliver the shares of
Common Stock issuable in respect of the Purchase Contracts forming a part of the
Securities evidenced by such Security Certificate, or (ii) if a Termination
Event shall have occurred prior to the Final
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Settlement Date, transfer the principal amount of the Underlying Securities
evidenced thereby, in each case subject to the applicable conditions and in
accordance with the applicable provisions of Article Five hereof.
Upon the issuance of any new Security Certificate under this Section,
the Company and the Agent may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other expenses (including the fees and expenses of the Agent) connected
therewith.
Every new Security Certificate issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security Certificate shall constitute an
original additional contractual obligation of the Company and of the Holder in
respect of the Security evidenced thereby, whether or not the destroyed, lost or
stolen Security Certificate shall be at any time enforceable by anyone, and
shall be entitled to all the benefits and be subject to all the obligations of
this Agreement equally and proportionately with any and all other Security
Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or settlement of mutilated, destroyed, lost or stolen Security Certificates.
Section 307. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security Certificate for registration of
transfer, the Company and the Agent, and any agent of the Company or the Agent,
may treat the Person in whose name such Security Certificate is registered as
the owner of the Securities evidenced thereby, for the purpose of receiving
payments of interest on the Underlying Securities, receiving payments of
Contract Fees, performance of the Purchase Contracts and for all other purposes
whatsoever, whether or not the payment of interest on the Underlying Securities
or any Contract Fee payable in respect of the Purchase Contracts constituting a
part of the Securities evidenced thereby shall be overdue and notwithstanding
any notice to the contrary, and neither the Company nor the Agent, nor any agent
of the Company or the Agent, shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security
Certificate, nothing herein shall prevent the Company, the Agent or any agent of
the Company or the Agent, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary (or its nominee), as a
Holder, with respect to such Global
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Security Certificate or impair, as between such Depositary and owners of
beneficial interests in such Global Security Certificate, the operation of
customary practices governing the exercise of rights of such Depositary (or its
nominee) as Holder of such Global Security Certificate.
Section 308. Cancellation.
------------
All Security Certificates surrendered for delivery of shares of Common
Stock on or after the Final Settlement Date, transfer of Underlying Securities
after the occurrence of a Termination Event or pursuant to an Early Settlement
or registration of transfer or exchange shall, if surrendered to any Person
other than the Agent, be delivered to the Agent and, if not already cancelled,
shall be promptly cancelled by it. The Company may at any time deliver to the
Agent for cancellation any Security Certificates previously authenticated,
executed and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Security Certificates so delivered shall, upon Issuer
Order, be promptly cancelled by the Agent. No Security Certificates shall be
authenticated, executed on behalf of the Holder and delivered in lieu of or in
exchange for any Security Certificates cancelled as provided in this Section,
except as expressly permitted by this Agreement. All cancelled Security
Certificates held by the Agent shall be disposed of as directed by Issuer Order.
If the Company or any Affiliate of the Company shall acquire any
Security Certificate, such acquisition shall not operate as a cancellation of
such Security Certificate unless and until such Security Certificate is
delivered to the Agent cancelled or for cancellation.
Section 309. Securities Not Separable.
------------------------
Notwithstanding anything contained herein or in the Security
Certificates to the contrary, for so long as the Purchase Contract underlying a
Security remains in effect such Security shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Security
in respect of the Underlying Securities and Purchase Contracts constituting such
Security may be acquired, and may be transferred and exchanged, only as a
Security. Other than a Security Certificate evidencing a Security, no Holder of
a Security, or any transferee thereof, shall be entitled to receive a
certificate evidencing the ownership of Underlying Securities or the rights and
obligations of the Holder and the Company under a Purchase Contract for so long
as the Purchase Contract underlying the Security remains in effect.
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ARTICLE FOUR
The Underlying Securities
Section 401. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Underlying Security which is paid on any Payment Date
shall, subject to receipt thereof by the Agent from the Collateral Agent as
provided by the terms of the Pledge Agreement, be paid to the Person in whose
name the Security Certificate (or one or more Predecessor Security Certificates)
of which such Underlying Security is a part is registered at the close of
business on the Record Date next preceding such Payment Date.
Each Security Certificate evidencing Underlying Securities delivered
under this Agreement upon registration of transfer of or in exchange for or in
lieu of any other Security Certificate shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by the Underlying
Securities underlying such other Security Certificate.
In the case of any Security with respect to which Early Settlement of
the underlying Purchase Contract is effected on an Early Settlement Date after
any Record Date and on or prior to the next succeeding Payment Date, interest on
the Underlying Securities underlying such Security otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such interest shall, subject to receipt thereof by the Agent, be
paid to the Person in whose name the Security Certificate (or one or more
Predecessor Security Certificates) is registered at the close of business on the
Record Date. Except as otherwise expressly provided in the immediately
preceding sentence, in the case of any Security with respect to which Early
Settlement of the underlying Purchase Contract is effected on an Early
Settlement Date, interest on the related Underlying Securities that would
otherwise be payable after the Early Settlement Date shall not be payable
hereunder to the Holder of such Security.
Section 402. Transfer of Underlying Securities Upon Occurrence of Termination
Event.
-----
Upon the occurrence of a Termination Event and the transfer to the
Agent of the Underlying Securities underlying such Securities pursuant to the
terms of the Pledge Agreement, the Agent shall request transfer
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instructions with respect to such Underlying Securities from each Holder of
Securities by written request mailed to such Holder at his address as it appears
in the Security Register, in respect of the Underlying Securities underlying the
Security Certificate held by such Holder. Upon surrender to the Agent of a
Security Certificate with such transfer instructions in proper form for transfer
of the Underlying Securities by Federal Reserve Bank-Wire or other appropriate
procedure, the Agent shall transfer the Underlying Securities evidenced by such
Security Certificate to such Holder in accordance with such instructions. If a
Security Certificate is not duly surrendered to the Agent with appropriate
transfer instructions, the Agent shall hold the Underlying Securities evidenced
by such Security Certificate as custodian for the Holder of such Security
Certificate.
Underlying Securities shall be transferred only in denominations of
$1,000 and integral multiples thereof. As promptly as practicable following the
occurrence of a Termination Event, the Agent shall determine the excess of (i)
the aggregate principal amount of Underlying Securities underlying the
Outstanding Securities over (ii) the aggregate principal amount of Underlying
Securities in denominations of $1,000 and integral multiples thereof
transferrable to Holders of record on the date of such Termination Event (such
excess being herein referred to as the "Excess Underlying Securities"). As soon
as practicable after transfer to the Agent of the Underlying Securities
underlying the Outstanding Securities as provided in the Pledge Agreement, the
Agent shall sell the Excess Underlying Securities to or through one or more U.S.
Government securities dealers at then prevailing prices. The Agent shall deduct
from the proceeds of such sales all commissions and other out-of-pocket
transaction costs incurred in connection with such sales of Excess Underlying
Securities and, until the net proceeds of such sale or sales have been
distributed to Holders of the Securities, the Agent shall hold such proceeds in
trust for the Holders of Securities. Each Holder shall be entitled to receive a
portion, if any, of such net proceeds in lieu of Underlying Securities with a
principal amount of less than $1,000 determined by multiplying the aggregate
amount of such net proceeds by a fraction, the numerator of which is the
fraction of $1,000 in principal amount of Underlying Securities to which such
Holder would otherwise be entitled (after taking into account all Securities
then held by such Holder) and the denominator of which is the aggregate
principal amount of Excess Underlying Securities.
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ARTICLE FIVE
The Purchase Contracts
Section 501. Purchase of Shares of Common Stock.
----------------------------------
Each Purchase Contract shall obligate the Holder of the related
Security to purchase, and the Company to sell, on the Final Settlement Date at a
price equal to the Stated Amount, a number of shares of Common Stock equal to
the Settlement Rate, unless, on or prior to the Final Settlement Date, there
shall have occurred a Termination Event or an Early Settlement with respect to
the Security of which such Purchase Contract is a part. The "Settlement Rate"
is equal to (a) if the Applicable Market Value (as defined below) is greater
than $_____ (the "Threshold Appreciation Price"), _____ of a share of Common
Stock per Purchase Contract, (b) if the Applicable Market Value is less than or
equal to the Threshold Appreciation Price but is greater than the Stated Amount,
a fractional share of Common Stock per Purchase Contract equal to the Stated
Amount divided by the Applicable Market Value (rounded upward or downward to the
nearest 1/10,000th of a share) and (c) if the Applicable Market Value is less
than or equal to the Stated Amount, one share of Common Stock per Purchase
Contract, in each case subject to adjustment as provided in Section 506. As
provided in Section 510, no fractional shares of Common Stock will be issued
upon settlement of Purchase Contracts.
The "Applicable Market Value" means the average of the Closing Price
per share of Common Stock on each of the twenty consecutive Trading Days ending
on the last Trading Day immediately preceding the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by Nasdaq, or, if the Common Stock is not so reported, the
last quoted bid price for the Common Stock in the over-the-counter market as
reported by the National Quotation Bureau or similar organization, or, if such
bid price is not available, the market value of the Common Stock on such date as
determined by a nationally recognized independent investment banking firm
retained for this purpose by the
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Company. A "Trading Day" means a day on which the Common Stock (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Security Certificate evidencing Securities, by his
acceptance thereof, irrevocably authorizes the Agent to enter into and perform
the related Purchase Contracts on his behalf as his attorney-in-fact, agrees to
be bound by the terms and provisions thereof, covenants and agrees to perform
his obligations under such Purchase Contracts, consents to the provisions
hereof, irrevocably authorizes the Agent as his attorney-in-fact to enter into
and perform the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Underlying Securities
underlying such Security Certificate pursuant to the Pledge Agreement; provided,
--------
that upon a Termination Event, the rights of the Holder of such Security under
the Purchase Contract may be enforced without regard to any other rights or
obligations. Each Holder of a Security, by his acceptance thereof, further
irrevocably covenants and agrees, that, to the extent and in the manner provided
in Section 504 and the Pledge Agreement, but subject to the terms thereof,
payments in respect of principal of the Underlying Securities on the Final
Settlement Date shall be paid by the Collateral Agent to the Company in
satisfaction of such Holder's obligations under such Purchase Contract and such
Holder shall acquire no right, title or interest in such payments.
Upon registration of transfer of a Security Certificate evidencing
Purchase Contracts, the transferee shall be bound (without the necessity of any
other action on the part of such transferee), under the terms of this Agreement,
the Purchase Contracts evidenced thereby and the Pledge Agreement and the
transferor shall be released from the obligations under the Purchase Contracts
evidenced by the Security Certificates so transferred. The Company covenants
and agrees, and each Holder of a Security Certificate, by his acceptance
thereof, likewise covenants and agrees, to be bound by the provisions of this
paragraph.
Section 502. Contract Fees.
-------------
Subject to Section 503, the Company shall pay, on each Payment Date,
the Contract Fees payable in respect of each Purchase Contract to the Person in
whose name the Security Certificate (or one or more Predecessor Security
Certificates) evidencing such Purchase Contract is
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registered at the close of business on the Record Date next preceding such
Payment Date. The Contract Fees will be payable at the office of the Agent in
The City of New York maintained for that purpose or, at the option of the
Company, by check mailed to the address of the Person entitled thereto at such
address as it appears on the Security Register.
Upon the occurrence of a Termination Event, the Company's obligation
to pay Contract Fees (including any accrued or deferred Contract Fees) shall
cease.
Each Security Certificate delivered under this Agreement upon
registration of transfer of, or in exchange for, or in lieu of, any other
Security Certificate shall carry the rights to Contract Fees accrued and unpaid,
and to accrue, which were carried by the Purchase Contracts evidenced by such
other Security Certificate.
Subject to Section 509, in the case of any Security with respect to
which Early Settlement of the underlying Purchase Contract is effected on an
Early Settlement Date after any Record Date and on or prior to the next
succeeding Payment Date, Contract Fees, if any, otherwise payable on such
Payment Date shall be payable on such Payment Date notwithstanding such Early
Settlement, and such Contract Fees shall be paid to the Person in whose name the
Security Certificate evidencing such Security (or one or more Predecessor
Security Certificates) is registered at the close of business on such Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security with respect to which Early Settlement of
the underlying Purchase Contract is effected on an Early Settlement Date,
Contract Fees that would otherwise be payable after the Early Settlement Date
with respect to the Purchase Contract underlying such Security shall not be
payable.
Section 503. Deferral of Payment Dates For Contract Fee.
------------------------------------------
The Company shall have the right, at any time prior to the Final
Settlement Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer such payment
(specifying the amount to be deferred) at least ten Business Days prior to the
earlier of (i) the next succeeding Payment Date or (ii) the date the Company is
required to give notice of the Record or Payment Date with respect to payment of
such Contract Fees to the New York Stock Exchange or other applicable self-
regulatory organization or to Holders of the Securities, but in any
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event not less than one Business Day prior to such Record Date. Any Contract
Fees so deferred shall bear additional Contract Fees thereon at the rate of
_____% annum (computed on the basis of the actual number of days elapsed in a
year of 365 or 366 days, as the case may be), compounding on each succeeding
Payment Date, until paid in full. Deferred Contract Fees (and additional
Contract Fees accrued thereon) shall be due on the next succeeding Payment Date
except to the extent that payment is deferred pursuant to this Section. No
Contract Fees may be deferred to a date that is after the Final Settlement Date
or, with respect to any particular Purchase Contract, Early Settlement thereof.
If the Purchase Contracts are terminated upon the occurrence of a Termination
Event, the Holder's right to receive Contract Fees or deferred Contract Fees
(and additional Contract Fees accrued thereon) will terminate.
Section 504. Payment of Purchase Price
-------------------------
The purchase price for the shares of Common Stock purchased pursuant
to a Purchase Contract shall be paid by application of payments received by the
Company on the Final Settlement Date from the Collateral Agent pursuant to the
Pledge Agreement in respect of the principal of the Underlying Securities
pledged to secure the obligations of the relevant Holder under such Purchase
Contract. Such application shall satisfy in full the obligations under such
Purchase Contract of the Holder of the Security of which such Purchase Contract
is a part. The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates therefor to
the Holder unless it shall have received payment in full of the aggregate
purchase price for the shares of Common Stock to be purchased thereunder in the
manner herein set forth.
Section 505. Issuance of Shares of Common Stock.
----------------------------------
Unless a Termination Event shall have occurred on or prior to the
Final Settlement Date or an Early Settlement shall have occurred, on the Final
Settlement Date, upon its receipt of payment in full of the purchase price for
the shares of Common Stock purchased by the Holders pursuant to the foregoing
provisions of this Article, and subject to Section 506(b), the Company shall
issue and deposit with the Agent, for the benefit of the Holders of the
Outstanding Securities, one or more certificates representing the shares of
Common Stock registered in the name of the Agent (or its nominee) as custodian
for the Holders (such certificates for shares of Common Stock, together with any
dividends or distributions for which a record date and payment date for such
dividend or distribution has occurred after the Final Settlement Date, being
hereinafter referred to as the "Final
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Settlement Fund") to which the Holders are entitled hereunder. Subject to the
foregoing, upon surrender of a Security Certificate to the Agent on or after the
Final Settlement Date, together with settlement instructions thereon duly
completed and executed, the Holder of such Security Certificate shall be
entitled to receive in exchange therefor a certificate representing that number
of whole shares of Common Stock which such Holder is entitled to receive
pursuant to the provisions of this Article Five (after taking into account all
Securities then held by such Holder) together with cash in lieu of fractional
shares as provided in Section 510 and any dividends or distributions with
respect to such shares constituting part of the Final Settlement Fund, but
without any interest thereon, and the Security Certificate so surrendered shall
forthwith be cancelled. Such shares shall be registered in the name of the
Holder or the Holder's designee as specified in the settlement instructions on
the Security Certificate.
If any shares of Common Stock issued in respect of a Purchase Contract
are to be registered to a Person other than the Person in whose name the
Security Certificate evidencing such Purchase Contract is registered, no such
registration shall be made unless the Person requesting such registration has
paid any transfer and other taxes required by reason of such registration in a
name other than that of the registered Holder of the Security Certificate
evidencing such Purchase Contract or has established to the satisfaction of the
Company that such tax either has been paid or is not payable.
Section 506. Adjustment of Settlement Rate.
-----------------------------
(a) Adjustments for Dividends, Distributions, Stock Splits, Etc.
------------------------------------------------------------
(1) In case the Company shall pay or make a dividend or other
distribution on any class of Common Stock of the Company in Common Stock, the
Settlement Rate in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be increased by dividing such Settlement
Rate by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (1), the number of shares of Common Stock at any time outstanding
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shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company.
(2) In case the Company shall issue rights, options or warrants to
all holders of its Common Stock (not being available on an equivalent basis to
Holders of the Securities upon settlement of the Purchase Contracts underlying
such Securities) entitling them, for a period expiring within 45 days after the
record date for the determination of stockholders entitled to receive such
rights, options or warrants, to subscribe for or purchase shares of Common Stock
at a price per share less than the Current Market Price per share of the Common
Stock on the date fixed for the determination of stockholders entitled to
receive such rights, options or warrants (other than pursuant to a dividend
reinvestment plan), the Settlement Rate in effect at the opening of business on
the day following the date fixed for such determination shall be increased by
dividing such Settlement Rate by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such
Current Market Price and the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such increase to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
shall not issue any such rights, options or warrants in respect of shares of
Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided or
split into a greater number of shares of Common Stock, the Settlement Rate in
effect at the opening of business on the day following the day upon which such
subdivision or split becomes effective shall be proportionately increased, and,
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the
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Settlement Rate in effect at the opening of business on the day following the
day upon which such combination becomes effective shall be proportionately
reduced, such increase or reduction, as the case may be, to become effective
immediately after the opening of business on the day following the day upon
which such subdivision, split or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (2) of this Section, any dividend or distribution paid exclusively in
cash and any dividend or distribution referred to in paragraph (1) of this
Section), the Settlement Rate shall be adjusted so that the same shall equal the
rate determined by dividing the Settlement Rate in effect immediately prior to
the close of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the numera tor
shall be the Current Market Price per share of the Common Stock on the date
fixed for such determination less the then fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and described in
a Board Resolution filed with the Agent) of the portion of the assets or
evidences of indebtedness so distributed applicable to one share of Common Stock
and the denominator shall be such Current Market Price per share of the Common
Stock, such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of stock
holders entitled to receive such distribution. In any case in which this
paragraph (4) is applicable, paragraph (2) of this Section shall not be
applicable.
(5) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock cash (excluding any cash that is distributed
in a Reorganization Event to which Section 506(b) applies or as part of a
distribution referred to in paragraph (4) of this Section) in an aggregate
amount that, combined together with (I) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in cash within
the 12 months preceding the date of payment of such distri bution and in
respect of which no adjustment pursuant to this paragraph (5) or paragraph (6)
of this Section has been made and (II) the aggregate of any cash plus the fair
market value (as determined by the Board of Directors, whose determination shall
be conclusive and described in a Board Resolution) of any non-cash consideration
payable in respect of any tender or exchange offer by the Company or any of its
subsidiaries for all or any portion of the Common Stock
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concluded within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to this paragraph
(5) or paragraph (6) of this Section has been made, exceeds 15% of the product
of the Current Market Price per share of the Common Stock on the date for the
determination of holders of shares of Common Stock entitled to receive such
distribution times the number of shares of Common Stock outstanding on such
date, then, and in each such case, immediately after the close of business on
such date for determination, the Settlement Rate shall be increased so that the
same shall equal the rate determined by dividing the Settlement Rate in effect
immediately prior to the close of business on the date fixed for determination
of the stockholders entitled to receive such distribution by a fraction (i) the
numerator of which shall be equal to the Current Market Price per share of the
Common Stock on the date fixed for such determination less an amount equal to
the quotient of (x) the excess of such combined amount over such 15% and (y) the
number of shares of Common Stock outstanding on such date for determination and
(ii) the denominator of which shall be equal to the Current Market Price per
share of the Common Stock on such date for determination.
(6) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to stockholders of an aggregate consideration
having a fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) that
combined together with (I) the aggregate of the cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), as of the expiration of the
applicable tender or exchange offer, of any non-cash consideration payable in
respect of any other tender or exchange offer, by the Company or any subsidiary
of the Company for all or any portion of the Common Stock expiring within the 12
months preceding the expiration of such tender or exchange offer and in respect
of which no adjustment pursuant to paragraph (5) of this Section or this
paragraph (6) has been made and (II) the aggregate amount of any distributions
to all holders of the Company's Common Stock made exclusively in cash within the
12 months preceding the expiration of such tender or exchange offer and in
respect of which no adjustment pursuant to paragraph (5) of this Section or this
paragraph (6) has been made, exceeds 15% of the product of the Current Market
Price per share of the Common Stock as of the last time (the "Expiration Time")
tenders could have been made pursuant to
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such tender or exchange offer (as it may be amended) times the number of shares
of Common Stock outstanding (including any tendered shares) on the Expiration
Time, then, and in each such case, immediately prior to the opening of business
on the day after the date of the Expiration Time, the Settlement Rate shall be
adjusted so that the same shall equal the rate determined by dividing the
Settlement Rate immediately prior to the close of business on the date of the
Expiration Time by a fraction (i) the numerator of which shall be equal to (A)
the product of (I) the Current Market Price per share of the Common Stock on the
date of the Expiration Time and (II) the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time less (B) the
amount of cash plus the fair market value (determined as aforesaid) of the
aggregate [non-cash] consideration payable to stockholders pursuant to such
tender or exchange offer, and (ii) the denominator of which shall be equal to
the product of (A) the Current Market Price per share of the Common Stock as of
the Expiration Time and (B) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less the number of all
shares accepted for payment pursuant to such tender or exchange offer (the
shares deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares").
(7) The reclassification of Common Stock into securities including
securities other than Common Stock (other than any reclassification upon a
Reorganization Event to which Section 506(b) applies) shall be deemed to involve
(a) a distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be deemed to
be "the date fixed for the determination of stockholders entitled to receive
such distribution" and the "date fixed for such determination" within the
meaning of paragraph (4) of this Section), and (b) a subdivision, split or
combination, as the case may be, of the number of shares of Common Stock
outstanding immediately prior to such reclassification into the number of shares
of Common Stock outstanding immediately thereafter (and the effective date of
such reclassification shall be deemed to be "the day upon which such subdivision
or split becomes effective" or "the day upon which such combination becomes
effective", as the case may be, and "the day upon which such subdivision, split
or combination becomes effective" within the meaning of paragraph (3) of this
Section).
(8) The "Current Market Price" per share of Common Stock on any day
means the average of the daily Closing Prices for the 5 consecutive Trading Days
selected by the Company commencing not more than 30 Trading Days
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before, and ending not later than, the earlier of the day in question and the
day before the "ex" date with respect to the issuance or distribution requiring
such computation. For purposes of this paragraph, the term "'ex' date", when
used with respect to any issuance or distribution, shall mean the first date on
which the Common Stock trades regular way on such exchange or in such market
without the right to receive such issuance or distribution.
(9) All adjustments to the Settlement Rate shall be calculated to the
nearest 1/10,000th of a share of Common Stock (or if there is not a nearest
1/10,000th of a share to the next lower 1/10,000th of a share). No adjustment
in the Settlement Rate shall be required unless such adjustment would require an
increase or decrease of at least one percent therein; provided, however, that
-------- -------
any adjustments which by reason of this subparagraph are not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
If an adjustment is made to the Settlement Rate pursuant to paragraphs (1), (2),
(3), (4), (5), (6), (7) or (10) of this Section 506(a), an adjustment shall also
be made to the Applicable Market Value solely to determine which of clauses (a),
(b) or (c) of the definition of Settlement Rate in Section 501 will apply on the
Final Settlement Date. Such adjustment shall be made by multiplying the
Applicable Market Value by a fraction of which the numerator shall be the
Settlement Rate immediately after such adjustment pursuant to paragraph (1),
(2), (3), (4), (5), (6), (7) or (10) of this Section 506(a) and the denominator
shall be the Settlement Rate immediately before such adjustment; provided,
--------
however, that if such adjustment to the Settlement Rate is required to be made
- -------
pursuant to the occurrence of any of the events contemplated by paragraphs (1),
(2), (3), (4), (5), (7) or (10) of this Section 506(a) during the period taken
into consideration for determining the Applicable Market Value, appropriate and
customary adjustments shall be made to the Settlement Rate.
(10) The Company may make such increases in the Settlement Rate, in
addition to those required by this Section, as it considers to be advisable in
order to avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance of rights
or warrants to purchase or subscribe for stock or from any event treated as such
for income tax purposes or for any other reasons.
(b) Adjustment for Consolidation, Merger or Other Reorganization Event. In
------------------------------------------------------------------
the event of (i) any consolidation or merger of the Company, with or into
another Person (other than a merger or consolidation in which the Company is the
continuing corporation and in which the Common Stock
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outstanding immediately prior to the merger or consolidation is not exchanged
for cash, securities or other property of the Company or another corporation),
(ii) any sale, trans fer, lease or conveyance to another Person of the property
of the Company as an entirety or substantially as an entirety, (iii) any
statutory exchange of securities of the Company with another Person (other than
in connection with a merger or acquisition) or (iv) any liquidation, dissolution
or winding up of the Company other than as a result of or after the occurrence
of a Termination Event (any such event, a "Reorganization Event"), the
Settlement Rate will be adjusted to provide that each Holder of Securities will
receive on the Final Settlement Date with respect to each Purchase Contract
forming a part thereof, the kind and amount of securities, cash and other
property receivable upon such Reorganization Event (without any interest
thereon, and without any right to dividends or distributions thereon which have
a record date that is prior to the Final Settlement Date) by a Holder of the
number of shares of Common Stock issuable on account of each Purchase Contract
if the Final Settlement Date had occurred immediately prior to such
Reorganization Event, assuming such Holder of Common Stock is not a Person with
which the Company consolidated or into which the Company merged or which merged
into the Company or to which such sale or transfer was made, as the case may be
("constituent Person"), or an Affiliate of a constituent Person (to the extent
such Reorganization Event provides for different treatment of Common Stock held
by Affiliates of the Company and non-Affiliates), and such Holder failed to
exercise his rights of election, if any, as to the kind or amount of securities,
cash and other property receivable upon such Reorganization Event (provided that
if the kind or amount of securities, cash and other property receivable upon
such Reorganization Event is not the same for each share of Common Stock held
immediately prior to such Reorganization Event by other than a constituent
Person or an Affiliate thereof and in respect of which such rights of election
shall not have been exercised ("non-electing share"), then for the purpose of
this Section the kind and amount of securities, cash and other property
receivable upon such Reorganization Event by each non-electing share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares). In the event of such a Reorganization Event, the Person
formed by such consolidation, merger or exchange or the Person which acquires
the assets of the Company or, in the event of a liquidation or dissolution of
the Company, the Company or a liquidating trust created in connection therewith,
shall execute and deliver to the Agent an agreement supplemental hereto
providing that the Holders of each Outstanding Security shall have the rights
provided by this Section 506. Such supplemental agreement shall provide for
adjustments
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which, for events subsequent to the effective date of such supplemental
agreement, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section. The above provisions of this Section
shall similarly apply to successive Reorganization Events.
Section 507. Notice of Adjustments and Certain Other Events.
----------------------------------------------
(a) Whenever the Settlement Rate is adjusted as herein provided, the
Company shall:
(i) forthwith compute the adjusted Settlement Rate in accordance with
Section 506 and prepare and transmit to the Agent an Officers' Certificate
setting forth the Settlement Rate, the method of calculation thereof in
reasonable detail, and the facts requiring such adjustment and upon which
such adjustment is based; and
(ii) within 10 Business Days following the occurrence of an event that
permits or requires an adjustment to the Settlement Rate pursuant to
Section 506 (or if the Company is not aware of such occurrence, as soon as
practicable after becoming so aware), provide a written notice to the
Holders of the Securities of the occurrence of such event and a statement
in reasonable detail setting forth the method by which the adjustment to
the Settlement Rate was determined and setting forth the adjusted
Settlement Rate.
(b) The Agent shall not at any time be under any duty or responsibility to
any holder of Securities to determine whether any facts exist which may require
any adjustment of the Settlement Rate, or with respect to the nature or extent
or calculation of any such adjustment when made, or with respect to the method
employed in making the same. The Agent shall not be accountable with respect to
the validity or value (or the kind or amount) of any shares of Common Stock, or
of any securities or property, which may at the time be issued or delivered with
respect to any Purchase Contract; and the Agent makes no representation with
respect thereto. The Agent shall not be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock pursuant to a
Purchase Contract or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.
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Section 508. Termination Event; Notice.
-------------------------
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract Fees or
deferred Contract Fees, shall immediately and automatically terminate, without
the necessity of any notice or action by any Holder, the Agent or the Company,
if, on or prior to the Final Settlement Date, a Termination Event shall have
occurred. Upon the occurrence of a Termination Event, the Company shall give
written notice to the Agent, the Collateral Agent and to the Holders, at their
addresses as they appear in the Security Register. Upon and after the
occurrence of a Termination Event, the Securities shall thereafter represent the
right to receive the Underlying Securities forming a part of such Securities in
accordance with the provisions of Section 402 and the Pledge Agreement.
Section 509. Early Settlement.
----------------
(a) Subject to and upon compliance with the provisions of this
Section 509 at the option of the Holder thereof, any Purchase Contracts
underlying Securities having an aggregate Stated Amount equal to $[1,000] or an
integral multiple thereof may be settled early ("Early Settlement") as provided
herein. In order to exercise the right to effect Early Settlement with respect
to any Purchase Contracts, the Holder of the Security Certificate evidencing
such Purchase Contracts shall deliver such Security Certificate to the Agent at
the Corporate Trust Office duly endorsed for transfer to the Company or in blank
with the form of Election to Settle Early on the reverse thereof duly completed
and accompanied by payment in the form of a certified or cashier's check payable
to the Company in immediately available funds in an amount (the "Early
Settlement Amount") equal to (i) the product of (A) the Stated Amount times (B)
-----
the number of Purchase Contracts with respect to which the Holder has elected to
effect Early Settlement minus (ii) the aggregate amount of Contract Fees, if
-----
any, otherwise payable on or prior to the immediately preceding Payment Date
deferred at the option of the Company pursuant to Section 503 and remaining
unpaid as of such immediately preceding Payment Date plus (iii) if such delivery
----
is made with respect to any Purchase Contracts during the period from the close
of business on any Record Date next preceding any Payment Date to the opening of
business on such Payment Date, an amount equal to the sum of (x) the Contract
Fees payable on such Payment Date with respect to such Purchase Contracts plus
----
(y) the interest on the related Underlying Securities payable on such Payment
Date. Except as provided in the immediately preceding
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sentence and subject to the [last] paragraph of Section 502, no payment or
adjustment shall be made upon Early Settlement of any Purchase Contract on
account of any Contract Fees accrued on such Purchase Contract or on account of
any dividends on the Common Stock issued upon such Early Settlement. If the
foregoing requirements are first satisfied with respect to Purchase Contracts
underlying any Securities at or prior to 5:00 p.m., New York City time, on a
Business Day, such day shall be the "Early Settlement Date" with respect to such
Securities and if such requirements are first satisfied after 5:00 p.m., New
York City time, on a Business Day or on a day that is not a Business Day, the
"Early Settlement Date" with respect to such Securities shall be the next
succeeding Business Day.
(b) Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Company shall issue, and the Holder shall be entitled to
receive, a number of shares of Common Stock on account of each Purchase Contract
as to which Early Settlement is effected equal to the Early Settlement Rate;
provided, however, that upon the Early Settlement of the Purchase Contracts, the
- -------- -------
Holder of such related Securities will forfeit the right to receive any deferred
Contract Fees. The Early Settlement Rate shall initially be equal to __________
and shall be adjusted in the same manner and at the same time as the Settlement
Rate is adjusted. As promptly as practicable after Early Settlement of Purchase
Contracts in accordance with the provisions of this Section 509, the Company
shall issue and shall deliver to the Agent at the Corporate Trust Office a
certificate or certificates for the full number of shares of Common Stock
issuable upon such Early Settlement together with payment in lieu of any
fraction of a share, as provided in Section 510.
(c) The Company shall cause the shares of Common Stock issuable, and
Underlying Securities deliverable, upon Early Settlement of Purchase Contracts
to be issued and delivered, in the case of such shares of Common Stock, and
released from the Pledge by the Collateral Agent and transferred, in the case of
such Underlying Securities, to the Purchase Contract Agent, for delivery to the
Holder thereof or its designee, no later than the third Business Day after the
applicable Early Settlement Date.
(d) Upon Early Settlement of any Purchase Contracts, and subject to
receipt thereof from the Company or the Collateral Agent, as applicable, the
Agent shall, in accordance with the instructions provided by the Holder thereof
on the applicable form of Election to Settle Early on the reverse of the
Security Certificate evidencing the related Securities, (i) transfer the
Underlying Securities
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<PAGE>
forming a part of such Securities and (ii) deliver to the Holder a certificate
or certificates for the full number of shares of Common Stock issuable upon such
Early Settlement together with payment in lieu of any fraction of a share, as
provided in Section 510.
(e) In the event that Early Settlement is effected with respect to
Purchase Contracts underlying less than all the Securities evidenced by a
Security Certificate, upon such Early Settlement the Company shall execute and
the Agent shall authenticate, countersign and deliver to the Holder thereof, at
the expense of the Company, a Security Certificate evidencing the Securities as
to which Early Settlement was not effected.
Section 510. No Fractional Shares.
--------------------
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Final Settlement Date
or upon Early Settlement of any Purchase Contracts. If Security Certificates
evidencing more than one Purchase Contract shall be surrendered for settlement
at one time by the same Holder, the number of full shares of Common Stock which
shall be delivered upon settlement shall be computed on the basis of the
aggregate number of Purchase Contracts evidenced by the Security Certificates so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be deliverable upon settlement of any Purchase Contracts on the Final
Settlement Date or upon Early Settlement, the Company, through the Agent, shall
make a cash payment in respect of such fractional interest in an amount equal to
the value of such fractional shares at the Closing Price per share on the
Trading Day immediately preceding the Final Settlement Date or the related Early
Settlement Date, respectively. The Company shall provide the Agent from time to
time with sufficient funds to permit the Agent to make all cash payments
required by this Section 510 in a timely manner.
Section 511. Charges and Taxes.
-----------------
The Company will pay all stock transfer and similar taxes attributable
to the initial issuance and delivery of the shares of Common Stock pursuant to
the Purchase Contracts and in payment of any deferred Contract Fees; provided,
--------
however, that the Company shall not be required to pay any such tax or taxes
- -------
which may be payable in respect of any exchange of or substitution for a
Security Certificate evidencing a Purchase Contract or any issuance of a share
of Common Stock in a name other than that of the registered Holder of a Security
Certificate surrendered in
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<PAGE>
respect of the Purchase Contracts evidenced thereby, other than in the name of
the Agent, as custodian for such Holder, and the Company shall not be required
to issue or deliver such share certificates or Security Certificates unless or
until the Person or Persons requesting the transfer or issuance thereof shall
have paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
ARTICLE SIX
Remedies
Section 601. Unconditional Right of Holders to Receive Contract Fees and to
--------------------------------------------------------------
Purchase Common Stock.
---------------------
Notwithstanding any other provision in this Agreement, the Holder of
any Security shall have the right, which is absolute and unconditional (subject
to the right of the Company to defer payment thereof pursuant to Section 503),
to receive payment of each installment of the Contract Fees with respect to the
Purchase Contract constituting a part of such Security on the respective Payment
Date for such Security and to purchase Common Stock pursuant to such Purchase
Contract and, in each such case, to institute suit for the enforcement of any
such payment and right to purchase Common Stock, and such rights shall not be
impaired without the consent of such Holder.
Section 602. Restoration of Rights and Remedies.
----------------------------------
If any Holder of Securities has instituted any proceeding to enforce
any right or remedy under this Agreement and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company and such Holder shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of such Holder shall continue as though no such proceeding had been
instituted.
Section 603. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement of
mutilated, destroyed, lost or stolen Security Certificates in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Holders of Securities is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent
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<PAGE>
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 604. Delay or Omission Not Waiver.
----------------------------
No delay or omission of any Holder to exercise any right or remedy
upon a default shall impair any such right or remedy or constitute a waiver of
any such right. Every right and remedy given by this Article or by law to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by such Holders.
Section 605. Undertaking for Costs.
---------------------
All parties to this Agreement agree, and each Holder of any Security
by his acceptance of the Security Certificate evidencing such Security 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 Agreement, or in any suit
against the Agent for any action taken, suffered or omitted by it as Agent, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided that the provisions of this Section shall not
--------
apply to any suit instituted by the Company, to any suit instituted by the
Agent, to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% of the Outstanding Securities, or to any suit instituted
by any Holder for the enforcement of the payment of the interest on any
Underlying Security or the Contract Fees, if any, on any Purchase Contract on or
after the respective Payment Date therefor constituting a part of the Securities
held by such Holder, or for enforcement of the right to purchase shares of
Common Stock under the Purchase Contracts constituting a part of the Securities
held by such Holder.
Section 606. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Agreement; and the
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Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Agent or the
Holders, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE SEVEN
The Agent
Section 701. Certain Duties and Responsibilities.
-----------------------------------
(a) (1) The Agent undertakes to perform, with respect to the
Securities, such duties and only such duties as are specifically set forth
in this Agreement, and no implied covenants or obligations shall be read
into this Agreement against the Agent; and
(2) in the absence of bad faith or negligence on its part, the Agent
may, with respect to the Securities, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Agent and conforming to the
requirements of this Agreement, but in the case of any certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Agent, the Agent shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Agreement.
(b) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent failure to
act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Agent shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Agent was negligent in ascertaining the pertinent facts; and
(3) no provision of this Agreement shall require the Agent to expend
or risk its own funds or otherwise incur any financial liability in the
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performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if adequate indemnity is not provided to it.
(c) Whether or not therein expressly so provided, every provision of
this Agreement relating to the conduct or affecting the liability of or
affording protection to the Agent shall be subject to the provisions of this
Section.
Section 702. Notice of Default.
-----------------
Within 90 days after the occurrence of any default by the Company
hereunder, of which a Responsible Officer of the Agent has actual knowledge, the
Agent shall transmit by mail to all Holders of Securities, as their names and
addresses appear in the Security Register, notice of such default hereunder,
unless such default shall have been cured or waived.
Section 703. Certain Rights of Agent.
-----------------------
Subject to the provisions of Section 701:
(a) the Agent may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by an Officers' Certificate, Issuer Order or Issuer
Request, and any resolution of the Board of Directors of the Company may be
sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Agreement the Agent shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Agent (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate of the Company;
(d) the Agent may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
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authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Agent shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Agent, in its discretion, may make reasonable further
inquiry or investigation into such facts or matters related to the issuance
of the Securities and the execution, delivery and performance of the
Purchase Contracts as it may see fit, and, if the Agent shall determine to
make such further inquiry or investigation, it shall be entitled to examine
the books, records and promises of the Company, personally or by agent or
attorney; and
(f) the Agent may execute any of its powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and
the Agent shall not be responsible for any misconduct or negligence on the
part of any agent or attorney appointed with due care by it hereunder.
Section 704. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Security Certificates shall
be taken as the statements of the Company and the Agent assumes no
responsibility for their correct ness. The Agent makes no representations as
to the validity or sufficiency of this Agreement or of the Securities. The
Agent shall not be accountable for the use or application by the Company of the
proceeds in respect of the Purchase Contracts.
Section 705. May Hold Securities.
-------------------
Any Security Registrar or any other agent of the Company, or the
Agent, in its individual or any other capacity, may become the owner or pledgee
of Securities and may otherwise deal with the Company with the same rights it
would have if it were not Security Registrar or such other agent, or the Agent.
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Section 706. Money Held in Trust.
-------------------
Money held by the Agent in trust hereunder need not be segregated from
the other funds except to the extent required by law. The Agent shall be under
no obligation to invest or pay interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 707. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Agent from time to time reasonable compensation for
all services rendered by it hereunder;
(2) except as otherwise expressly provided herein, to reimburse the
Agent upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Agent in accordance with any provision of
this Agreement (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Agent and any predecessor Agent for, and to hold
each of them harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of 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.
Section 708. Corporate Agent Required; Eligibility.
-------------------------------------
There shall at all times be an Agent hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having (or being a member of a bank
holding company having) a combined capital and surplus of at least $50,000,000,
subject to supervision or examination by Federal or State authority and having a
Corporate Trust Office in the Borough of Manhattan, The City of New York, if
there be such a corporation in the Borough of Manhattan, The City of New York
qualified and eligible under this Article and willing to act on reasonable
terms.
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<PAGE>
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Agent
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
Section 709. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Agent and no appointment of a
successor Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Agent in accordance with the
applicable requirements of Section 710.
(b) The Agent may resign at any time by giving written notice thereof
to the Company 60 days prior to the effective date of such resignation. If the
instrument of acceptance by a successor Agent required by Section 710 shall not
have been delivered to the Agent within 30 days after the giving of such notice
of resignation, the resigning Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent.
(c) The Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Securities delivered to the Agent and the
Company.
(d) If at any time
(1) the Agent fails to comply with Section 310(b) of the TIA, as if
the Agent were an indenture trustee under an indenture qualified under the
TIA, after written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Agent shall cease to be eligible under Section 708 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Agent shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Agent or of its property shall
be appointed or any public officer shall take charge or control of the
Agent or of
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its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Agent, or (ii) any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Agent and
the appointment of a successor Agent.
(e) If the Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Agent for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Agent and
shall comply with the applicable requirements of Section 710. If no successor
Agent shall have been so appointed by the Company and accepted appointment in
the manner required by Section 710, any Holder who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Agent.
(f) The Company shall give, or shall cause such successor Agent to
give, notice of each resignation and each removal of the Agent and each
appointment of a successor Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Securities as their names
and addresses appear in the Security Register. Each notice shall include the
name of the successor Agent and the address of its Corporate Trust Office.
Section 710. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Agent, every
such successor Agent so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Agent an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Agent shall become
effective and such successor Agent, without any further act, deed or conveyance,
shall become vested with all the rights, powers, agencies and duties of the
retiring Agent; but, on the request of the Company or the successor Agent, such
retiring Agent shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Agent all the rights, powers and
trusts of the retiring Agent and shall duly assign, transfer and deliver to such
successor Agent all property and money held by such retiring Agent hereunder.
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(b) Upon request of any such successor Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Agent all such rights, powers and agencies referred
to in paragraph (a) of this Section.
(c) No successor Agent shall accept its appointment unless at the
time of such acceptance such successor Agent shall be qualified and eligible
under this Article.
Section 711. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Agent, shall be the successor of the Agent hereunder, provided such
--------
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Security Certificates shall have been
authenticated and executed on behalf of the Holders, but not delivered, by the
Agent then in office, any successor by merger, conversion or consolidation to
such Agent may adopt such authentication and execution and deliver the Security
Certificates so authenticated and executed with the same effect as if such
successor Agent had itself authenticated and executed such Securities.
Section 712. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Agent in its
capacity as Security Registrar.
(b) If three or more Holders (herein referred to as "applicants")
apply in writing to the Agent, and furnish to the Agent reasonable proof that
each such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Agreement or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Agent shall, within five Business Days after the receipt of such
application, afford
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<PAGE>
such applicants access to the information preserved at the time by the Agent in
accordance with Section 712(a).
(c) Every Holder of Securities, by receiving and holding the Security
Certificates evidencing the same, agrees with the Company and the Agent that
none of the Company, the Agent nor any agent of any of them shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Holders in accordance with Section 712(b), regardless of
the source from which such information was derived.
Section 713. No Obligations of Agent.
-----------------------
Except to the extent otherwise provided in this Agreement, the Agent
assumes no obligations and shall not be subject to any liability under this
Agreement or any Purchase Contract in respect of the obligations of the Holder
of any Security thereunder. The Company agrees, and each Holder of a Security
Certificate, by his acceptance thereof, shall be deemed to have agreed, that the
Agent's execution of the Security Certificates on behalf of the Holders shall be
solely as agent and attorney-in-fact for the Holders, and that the Agent shall
have no obligation to perform such Purchase Contracts on behalf of the Holders,
except to the extent expressly provided in Article Five hereof.
Section 714. Tax Compliance.
--------------
(a) The Agent, on its own behalf and on behalf of the Company, will
comply with all applicable certification, information reporting and withholding
(including "backup" withholding) requirements imposed by applicable tax laws,
regulations or administrative practice with respect to (i) any payments made
with respect to the Securities or (ii) the issuance, delivery, holding,
transfer, redemption or exercise of rights under the Securities. Such
compliance shall include, without limitation, the preparation and timely filing
of required returns and the timely payment of all amounts required to be
withheld to the appropriate taxing authority or its designated agent.
(b) The Agent shall comply with any direction received from the
Company with respect to the application of such requirements to particular
payments or Holders or in other particular circumstances, and may for purposes
of this Agreement rely on any such direction in accordance with the provisions
of Section 701(a)(2) hereof.
(c) The Agent shall maintain all appropriate records documenting
compliance with such requirements, and
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<PAGE>
shall make such records available on request to the Company or to its authorized
representative.
ARTICLE EIGHT
Supplemental Agreements
Section 801. Supplemental Agreements Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company and the Agent, at any
time and from time to time, may enter into one or more agreements supplemental
hereto, in form satisfactory to the Company and the Agent, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein
and in the Security Certificates; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Agent; or
(4) to make provision with respect to the rights of Holders pursuant
to the requirements of Section 506(b); or
(5) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provisions herein, or to
make any other provisions with respect to such matters or questions arising
under this Agreement, provided such action shall not adversely affect the
--------
interests of the Holders.
Section 802. Supplemental Agreements with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a a majority of the
Outstanding Securities, by Act of said Holders delivered to the Company and the
Agent, the Company when authorized by a Board Resolution, and the Agent may
enter into an agreement or agreements supplemental hereto for the purpose of
modifying in any manner the terms of the Securities, or the provisions of this
Agreement or the
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<PAGE>
rights of the Holders in respect of the Securities; provided, however, that no
-------- -------
such supplemental agreement shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change any Payment Date;
(2) change the amount or type of Underlying Securities underlying a
Security, impair the right of the Holder of any Security to receive
interest payments on the underlying Underlying Securities or otherwise
adversely affect the Holder's rights in or to such Underlying Securities;
(3) reduce any Contract Fees or change any place where, or the coin
or currency in which, any Contract Fees are payable;
(4) impair the right to institute suit for the enforcement of any
Purchase Contract;
(5) reduce the number of shares of Common Stock to be purchased
pursuant to any Purchase Contract, increase the price to purchase shares of
Common Stock upon settlement of any Purchase Contract, change the Final
Settlement Date or otherwise adversely affect the Holder's rights under any
Purchase Contract; or
(6) reduce the percentage of the Outstanding Securities the consent
of whose Holders is required for any such supplemental agreement.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental agreement, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 803. Execution of Supplemental Agreements.
------------------------------------
In executing, or accepting the additional agencies created by, any
supplemental agreement permitted by this Article or the modifications thereby of
the agencies created by this Agreement, the Agent shall be entitled to receive
and (subject to Section 701) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental agreement is
authorized or permitted by this Agreement. The Agent may, but shall not be
obligated to, enter into any such supplemental agreement which affects the
Agent's own rights, duties or immunities under this Agreement or otherwise.
-51-
<PAGE>
Section 804. Effect of Supplemental Agreements.
---------------------------------
Upon the execution of any supplemental agreement under this Article,
this Agreement shall be modified in accordance therewith, and such supplemental
agreement shall form a part of this Agreement for all purposes; and every Holder
of Security Certificates theretofore or thereafter authenticated, executed on
behalf of the Holders and delivered hereunder shall be bound thereby.
Section 805. Reference to Supplemental Agreements.
------------------------------------
Security Certificates authenticated, executed on behalf of the Holders
and delivered after the execution of any supplemental agreement pursuant to this
Article may, and shall if required by the Agent, bear a notation in form
approved by the Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Security Certificates so
modified as to conform, in the opinion of the Agent and the Company, to any such
supplemental agreement may be prepared and executed by the Company and
authenticated, executed on behalf of the Holders and delivered by the Agent in
exchange for Outstanding Security Certificates.
ARTICLE NINE
Consolidation, Merger, Sale or Conveyance
Section 901. Covenant Not to Merge, Consolidate, Sell or Convey Property Except
------------------------------------------------------------------
Under Certain Conditions.
------------------------
The Company covenants that it will not merge or consolidate with any
other Person or sell or convey all or substantially all of its assets to any
Person, except that the Company may merge or consolidate with, or sell or convey
all or substantially all of its assets to, any other Person, provided that (i)
the Company shall be the continuing corporation, or the successor (if other than
the Company) shall be a corporation organized and existing under the laws of the
United States of America or a State thereof and such corporation shall assume
the obligations of the Company under the Purchase Contracts, this Agreement and
the Pledge Agreement by one or more supplemental agreements in form satisfactory
to the Agent and the Collateral Agent, executed and delivered to the Agent and
the Collateral Agent by such corporation, and (ii) the Company or such successor
corporation, as the case may be, shall not, immediately after such merger of
consolidation, or such sale or conveyance, be in default in the performance of
any covenant
-52-
<PAGE>
or condition hereunder, under any of the Securities or under the Pledge
Agreement.
Section 902. Rights and Duties of Successor Corporation.
------------------------------------------
In case of any such consolidation, merger, sale or conveyance and upon
any such assumption by the successor corporation in accordance with Section 901,
such successor corporation shall succeed to and be substituted for the Company
with the same effect as if it had been named herein as the Company. Such
successor corporation thereupon may cause to be signed, and may issue either in
its own name or in the name of Monsanto Company, any or all of the Security
Certificates evidencing Securities issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Agent; and, upon the
order of such successor corporation, instead of the Company, and subject to all
the terms, conditions and limitations in this Agreement prescribed, the Agent
shall authenticate and execute on behalf of the Holders and deliver any Security
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Agent for authentication and execution, and any
Security Certificate evidencing Securities which such successor corporation
thereafter shall cause to be signed and delivered to the Agent for that purpose.
All the Security Certificates so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Security Certificates
theretofore or thereafter issued in accordance with the terms of this Agreement
as though all of such Security Certificates had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale or conveyance such
change in phraseology and form (but not in substance) may be made in the
Security Certificates evidencing Securities thereafter to be issued as may be
appropriate.
Section 903. Opinion of Counsel to Agent.
---------------------------
The Agent, subject to Sections 701 and 703, may receive an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this
Article and that all conditions precedent to the consummation of any such
consolidation, merger, sale, assignment, transfer, lease or conveyance have been
met.
-53-
<PAGE>
ARTICLE TEN
Covenants
Section 1001. Performance Under Purchase Contracts.
------------------------------------
The Company covenants and agrees for the benefit of the Holders from
time to time of the Securities that it will duly and punctually perform its
obligations under the Purchase Contracts in accordance with the terms of the
Purchase Contracts and this Agreement.
Section 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the Borough of Manhattan, The City of New
York an office or agency where Security Certificates may be presented or
surrendered for acquisition of shares of Common Stock upon settlement or Early
Settlement and for transfer of Underlying Securities upon occurrence of a
Termination Event, where Security Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Agreement may be served. The
Company will give prompt written notice to the Agent 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 Agent with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Agent as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where Security Certificates 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 the Borough of Manhattan, The City of New York for such purposes. The
Company will give prompt written notice to the Agent of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby designates as the place of payment for the Securities the
Corporate Trust Office and appoints the Agent at its Corporate Trust Office as
paying agent in such city.
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<PAGE>
Section 1003. Company to Reserve Common Stock.
-------------------------------
The Company shall at all times prior to the Final Settlement Date
reserve and keep available, free from preemptive rights, out of its authorized
but unissued Common Stock the full number of shares of Common Stock issuable
against tender of payment in respect of all Purchase Contracts constituting a
part of the Securities evidenced by Outstanding Security Certificates.
Section 1004. Covenants as to Common Stock.
----------------------------
The Company covenants that all shares of Common Stock which may be
issued against tender of payment in respect of any Purchase Contract
constituting a part of the Outstanding Securities will, upon issuance, be duly
authorized, validly issued, fully paid and nonassessable.
Section 1005. Statements of Officers of the Company as to Default.
---------------------------------------------------
The Company will deliver to the Agent, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions hereof, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they may
have knowledge.
-55-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
MONSANTO COMPANY
Attested by By:
- -------------------------------------- -------------------------------------
-------------------------------------
as Agent
Attested by By:
- -------------------------------------- -------------------------------------
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<PAGE>
EXHIBIT A
MONSANTO COMPANY
Automatic Common Exchanged Securities
(Stated Amount $________ per Security)
No. _________ Securities
This Security Certificate certifies that ______________________ is the
registered Holder of the number of Securities set forth above. Each Security
represents ownership by the Holder of [type and description of underlying
security] ("Underlying Securities") with a principal amount equal to the Stated
Amount, subject to the Pledge of such Underlying Securities by such Holder
pursuant to the Pledge Agreement, and the rights and obligations of the Holder
under one Purchase Contract with Monsanto Company, a Delaware corporation (the
"Company").
Pursuant to the Pledge Agreement, the Underlying Securities
constituting part of each Security evidenced hereby have been pledged to the
Collateral Agent to secure the obligations of the Holder under the Purchase
Contract constituting part of such Security.
The Pledge Agreement provides that all payments of principal of, or
interest on, any Underlying Securities constituting part of the Securities
received by the Collateral Agent shall be paid by the Collateral Agent by wire
transfer in same day funds no later than _____________, New York City time, on
the Business Day such payment is received by the Collateral Agent (provided that
in the event such payment is received by the Collateral Agent on a day that is
not a Business Day or after ______________, New York City time, on a Business
Day, then such payment shall be made no later than _____________, New York City
time, on the next succeeding Business Day) (i) in the case of (A) interest
payments and (B) any principal payments with respect to any Underlying
Securities that have been released from the Pledge pursuant to the Pledge
Agreement, to the Agent to the account designated by it for such purpose and
(ii) in the case of principal payments on any Pledged Underlying Securities (as
defined in the Pledge Agreement), to the Company, in full satisfaction of the
respective obligations of the Holders of the Securities of which such Pledged
Underlying Securities are a part under the Purchase
<PAGE>
Contracts forming a part of such Securities. Interest on any Underlying Security
forming part of a Security evidenced hereby which is paid on any _______ or
________, commencing _____________, 1998 (a "Payment Date"), shall, subject to
receipt thereof by the Agent from the Collateral Agent, be paid to the Person in
whose name this Security Certificate (or a Predecessor Security Certificate) is
registered at the close of business on the Record Date next preceding such
Payment Date.
Each Purchase Contract evidenced hereby obligates the Holder of this
Security Certificate to purchase, and the Company to sell, on __________, 1998
(the "Final Settlement Date"), at a price equal to $__________ (the "Stated
Amount"), a number of shares of Common Stock, par value $2.00 per share ("Common
Stock"), of the Company, equal to the Settlement Rate, unless on or prior to the
Final Settlement Date there shall have occurred a Termination Event or Early
Settlement with respect to the Security of which such Purchase Contract is a
part, all as provided in the Purchase Contract Agreement and more fully
described on the reverse hereof. The purchase price for the shares of Common
Stock purchased pursuant to each Purchase Contract evidenced hereby, if not paid
earlier, shall be paid on the Final Settlement Date by application of payment
received in respect of the principal of the Underlying Securities pledged to
secure the obligations under such Purchase Contract of the Holder of the
Security of which such Purchase Contract is a part.
The Company shall pay, on each Payment Date, in respect of each
Purchase Contract forming part of a Security evidenced hereby a fee (the
"Contract Fee") equal to _____% per annum of the Stated Amount, from __________,
1998, computed on the basis of the actual number of days elapsed in a year of
365 or 366 days, as the case may be, subject to deferral at the option of the
Company as provided in the Purchase Contract Agreement and more fully described
on the reverse hereof. Such Contract Fee shall be payable to the Person in
whose name this Security Certificate (or a Predecessor Security Certificate) is
registered at the close of business on the Record Date next preceding such
Payment Date.
Interest on the Underlying Securities and the Contract Fee will be
payable at the office of the Agent in The City of New York or, at the option of
the Company, by check mailed to the address of the Person entitled thereto as
such address appears on the Security Register.
Reference is hereby made to the further provisions set forth on the
reverse hereof, which further provisions
-2-
<PAGE>
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Agent by manual signature, this Security Certificate shall not be entitled
to any benefit under the Pledge Agreement or the Purchase Contract Agreement or
be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
MONSANTO COMPANY
By: _____________________________
Attest:
____________________
HOLDER SPECIFIED ABOVE
(as to obligations of such Holder under the
Purchase Contracts evidenced hereby)
By: ________________________,
as Attorney-in-Fact of such
Holder
By: _______________________________
Dated:
This is one of the Security Certificates referred to in the within
mentioned Purchase Contract Agreement.
_______________________,
as Agent
By: __________________________________
-3-
<PAGE>
[Form of Reverse of Security Certificate]
Each Purchase Contract evidenced hereby is governed by a Purchase
Contract Agreement, dated as of __________, 1998 (the "Purchase Contract
Agreement"), between the Company and ___________________, as Agent (herein
called the "Agent"), to which Purchase Contract Agreement and supplemental
agreements thereto reference is hereby made for a description of the respective
rights, limitations of rights, obligations, duties and immunities thereunder of
the Agent, the Company, and the Holders and of the terms upon which the Security
Certificates are, and are to be, executed and delivered.
Each Purchase Contract evidenced hereby obligates the Holder of this
Security Certificate to purchase, and the Company to sell, on the Final
Settlement Date at a price equal to the Stated Amount, a number of shares of
Common Stock of the Company equal to the Settlement Rate, unless, on or prior to
the Final Settlement Date, there shall have occurred a Termination Event or an
Early Settlement with respect to the Security of which such Purchase Contract is
a part. The "Settlement Rate" is equal to (a) if the Applicable Market Value
(as defined below) is greater than $_____ (the "Threshold Appreciation Price"),
_____ shares of Common Stock per Purchase Contract, (b) if the Applicable Market
Value is less than or equal to the Threshold Appreciation Price but is greater
than the Stated Amount, a fractional share of Common Stock per Purchase Contract
equal to the Stated Amount divided by the Applicable Market Value and (c) if the
Applicable Market Amount is less than or equal to the Stated Amount, one share
of Common Stock per Purchase Contract, in each case subject to adjustment as
provided in the Purchase Contract. No fractional shares of Common Stock will be
issued upon settlement of Purchase Contracts, as provided in the Purchase
Contract Agreement.
The "Applicable Market Value" means the average of the Closing Prices
per share of Common Stock on each of the twenty consecutive Trading Days ending
on the last Trading Day immediately preceding the Final Settlement Date. The
"Closing Price" of the Common Stock on any date of determination means the
closing sale price (or, if no closing price is reported, the last reported sale
price) of the Common Stock on the New York Stock Exchange (the "NYSE") on such
date or, if the Common Stock is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which the Common Stock is so listed, or if the Common
Stock is not so listed on a United States national or regional securities
exchange, as reported by The Nasdaq Stock Market, or, if the Common Stock is not
so reported, the last quoted bid price for the Common Stock in the over-the-
counter market as reported by the National Quotation Bureau or similar
-4-
<PAGE>
organization, or, if such bid price is not available, the market value of the
Common Stock on such date as determined by a nationally recognized independent
investment banking firm retained for this purpose by the Company. A "Trading
Day" means as a day on which the Common Stock (A) is not suspended from trading
on any national or regional securities exchange or association or over-the-
counter market at the close of business and (B) has traded at least once on the
national or regional securities exchange or association or over-the-counter
market that is the primary market for the trading of the Common Stock.
The purchase price for the shares of Common Stock purchased pursuant
to each Purchase Contract shall be paid by application of payments received by
the Company on the Final Settlement Date from the Collateral Agent pursuant to
the Pledge Agreement in respect of the principal of the Underlying Securities
Pledged to secure the obligations of the relevant Holder under such Purchase
Contract. The Company shall not be obligated to issue any shares of Common
Stock in respect of a Purchase Contract or deliver any certificates therefor to
the Holder unless it shall have received payment in full of the aggregate
purchase price for the shares of Common Stock to be purchased thereunder in the
manner herein set forth.
Subject to the next succeeding paragraph, the Company shall pay, on
each Payment Date, the Contract Fee payable in respect of each Purchase Contract
to the Person in whose name the Security Certificate evidencing such Purchase
Contract is registered at the close of business on the Record Date next
preceding such Payment Date. Contract Fees will be payable at the office of the
Agent in The City of New York or, at the option of the Company, by check mailed
to the address of the Person entitled thereto at such address as it appears on
the Security Register.
The Company shall have the right, at any time prior to the Final
Settlement Date, to defer the payment of any or all of the Contract Fees
otherwise payable on any Payment Date, but only if the Company shall give the
Holders and the Agent written notice of its election to defer such payment
(specifying the amount to be deferred) as provided in the Purchase Contract
Agreement. Any Contract Fees so deferred shall bear additional Contract Fees
thereon at the rate of _____ per annum (computed on the basis of the actual
number of days elapsed in a year of 365 or 366 days, as the case may be),
compounding on each succeeding Payment Date, until paid in full. Deferred
Contract Fees (and additional Contract Fees accrued thereon) shall be due on the
next succeeding Payment Date except to the extent that payment is deferred
pursuant to the Purchase Contract Agreement. No Contract Fees may be deferred
to a date that is after the Final Settlement Date.
-5-
<PAGE>
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights of the
Holders to receive and the obligation of the Company to pay any Contract Fee,
shall immediately and automatically terminate, without the necessity of any
notice or action by any Holder, the Agent or the Company, if, on or prior to the
Final Settlement Date, a Termination Event shall have occurred. Upon the
occurrence of a Termination Event, the Company shall give written notice to the
Agent and to the Holders, at their addresses as they appear in the Security
Register. Upon and after the occurrence of a Termination Event, the Collateral
Agent shall release the Underlying Securities from the Pledge. The Securities
shall thereafter represent the right to receive the Underlying Securities
forming a part of such Securities in accordance with the provisions of the
Purchase Contract Agreement and the Pledge Agreement.
Subject to and upon compliance with the provisions of the Purchase
Contract Agreement at the option of the Holder thereof, Purchase Contracts
underlying Securities having an aggregate Stated Amount equal to $__________ or
an integral multiple thereof may be settled early ("Early Settlement") as
provided in the Purchase Contract Agreement. In order to exercise the right to
effect Early Settlement with respect to any Purchase Contracts evidenced by this
Security Certificate, the Holder of this Security Certificate shall deliver this
Security Certificate to the Agent at the Corporate Trust Office duly endorsed
for transfer to the Company or in blank with the form of Election to Settle
Early set forth below duly completed and accompanied by payment in the form of a
certified or cashier's check payable to the order of the Company in immediately
available funds in an amount (the "Early Settlement Amount") equal to (i) the
product of (A) the Stated Amount times (B) the number of Purchase Contracts with
-----
respect to which the Holder has elected to effect Early Settlement minus (ii)
-----
the aggregate amount of Contract Fees, if any, otherwise payable on or prior to
the immediately preceding Payment Date deferred at the option of the Company
pursuant to the Purchase Contract Agreement and remaining unpaid as of such
immediately preceding Payment Date plus (iii) if such delivery is made with
----
respect to any Purchase Contracts during the period from the close of business
on any Record Date next preceding any Payment Date to the opening of business on
such Payment Date, an amount equal to the sum of (x) the Contract Fees payable
on such Payment Date with respect to such Purchase Contracts plus (y) the
----
interest with respect to the related Underlying Securities payable on such
Payment Date. Upon Early Settlement of Purchase Contracts by a Holder of the
related Securities, the Underlying Securities underlying such Securities shall
be released from the Pledge as provided in the Pledge Agreement and the Holder
shall be entitled to receive, a number of shares of Common Stock on account of
each Purchase Contract forming part of a Security as to which Early Settlement
-6-
<PAGE>
is effected equal to the Early Settlement Rate. The Early Settlement Rate shall
initially be equal to __________ and shall be adjusted in the same manner and at
the same time as the Settlement Rate is adjusted as provided in the Purchase
Contract Agreement.
The Security Certificates are issuable only in registered form and
only in denominations of a single Security and any integral multiple thereof.
The transfer of any Security Certificate will be registered and Security
Certificates may be exchanged as provided in the Purchase Contract Agreement.
The Security Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents permitted by the Purchase
Contract Agreement. No service charge shall be required for any such
registration of transfer or exchange, but the Company and the Agent may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith. For so long as the Purchase Contract
underlying a Security remains in effect, such Security shall not be separable
into its constituent parts, and the rights and obligations of the Holder of such
Security in respect of the Underlying Securities and Purchase Contract
constituting such Security may be transferred and exchanged only as a Security.
Upon registration of transfer of this Security Certificate, the
transferee shall be bound (without the necessity of any other action on the part
of such transferee, except as may be required by the Agent pursuant to the
Purchase Contract Agreement), under the terms of the Purchase Contract Agreement
and the Purchase Contracts evidenced hereby and the transferor shall be released
from the obligations under the Purchase Contracts evidenced by this Security
Certificate. The Company covenants and agrees, and the Holder, by his
acceptance hereof, likewise covenants and agrees, to be bound by the provisions
of this paragraph.
The Holder of this Security Certificate, by his acceptance hereof,
authorizes the Agent to enter into and perform the related Purchase Contracts
forming part of the Securities evidenced hereby on his behalf as his attorney-
in-fact, agrees to be bound by the terms and provisions thereof, covenants and
agrees to perform his obligations under such Purchase Contracts, consents to the
provisions of the Purchase Contract Agreement, authorizes the Agent to enter
into and perform the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to the Pledge of the Underlying Securities underlying this Security
Certificate pursuant to the Pledge Agreement. The Holder further covenants and
agrees, that, to the extent and in the manner provided in the Purchase Contract
Agreement and the Pledge Agreement, but subject to the terms thereof, payments
in respect of principal of the Underlying Securities on the Final Settlement
Date shall be paid by the Collateral Agent to the Company in
-7-
<PAGE>
satisfaction of such Holder's obligations under such Purchase Contract and such
Holder shall acquire no right, title or interest in such payments.
Subject to certain exceptions, the provisions of the Purchase Contract
Agreement may be amended with the consent of the Holders of at least a majority
of the Outstanding Securities.
All terms used herein which are defined in the Purchase Contract
Agreement have the meanings set forth therein.
The Purchase Contracts shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
The Company, the Agent and any agent of the Company or the Agent may
treat the Person in whose name this Security Certificate is registered as the
owner of the Securities evidenced hereby for the purpose of receiving payments
of interest on the Underlying Securities, receiving payments of Contract Fees,
performance of the Purchase Contracts and for all other purposes whatsoever,
whether or not any payments in respect thereof be overdue and notwithstanding
any notice to the contrary, and neither the Company, the Agent nor any such
agent shall be affected by notice to the contrary.
The Purchase Contracts shall not, prior to the settlement thereof,
entitle the Holder to any of the rights of a holder of shares of Common Stock.
A copy of the Purchase Contract Agreement is available for inspection
at the offices of the Agent.
-8-
<PAGE>
Settlement Instructions
-----------------------
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Final Settlement Date of the
Purchase Contracts underlying the number of Securities evidenced by this
Security Certificate be registered in the name of, and delivered, together with
a check in payment for any fractional share, to the undersigned at the address
indicated below unless a different name and address have been indicated below.
If shares are to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Dated: _________________ _________________________
Signature
If shares are to be registered in the REGISTERED HOLDER
name of and delivered to a Person
other than the Holder, please print
such Person's name and address:
Please print name and address of
___________________________ Registered Holder:
Name
___________________________ ___________________________
Address Name
___________________________ ___________________________
Address
___________________________ ___________________________
Social Security or other
Taxpayer Identification
Number, if any ___________________________
-9-
<PAGE>
Election to Settle Early
------------------------
The undersigned Holder of this Security Certificate hereby irrevocably
exercises the option to effect Early Settlement in accordance with the terms of
the Purchase Contract Agreement with respect to the Purchase Contracts
underlying the number of Securities evidenced by this Security Certificate
specified below. The option to effect Early Settlement may be exercised only
with respect to Purchase Contracts underlying Securities with an aggregate
Stated Amount equal to $________ or an integral multiple thereof. The
undersigned Holder directs that a certificate for shares of Common Stock
deliverable upon such Early Settlement be registered in the name of, and
delivered, together with a check in payment for any fractional share and any
Security Certificate representing any Securities evidenced hereby as to which
Early Settlement of the related Purchase Contracts is not effected, to the
undersigned at the address indicated below unless a different name and address
have been indicated below. Underlying Securities deliverable upon such Early
Settlement will be transferred in accordance with the transfer instructions set
forth below. If shares are to be registered in the name of a Person other than
the undersigned, the undersigned will pay any transfer tax payable incident
thereto.
Dated: _________________ _________________________
Signature
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<PAGE>
Number of Securities evidenced hereby as to which Early Settlement of the
related Purchase Contracts is being elected: __________.
If shares or Security Certificates are REGISTERED HOLDER
to be registered in the name of and
delivered to and Underlying
Securities are to be transferred to a
Person other than the Holder, please Please print name and address
print such Person's name and address: of Registered Holder:
___________________________ ___________________________
Name Name
___________________________ ___________________________
Address Address
___________________________ ___________________________
___________________________ ___________________________
Social Security or other Taxpayer
Identification Number, if any
___________________________________
Transfer Instructions for Underlying Securities Transferable Upon Early
Settlement or a Termination Event:
________________________________________
________________________________________
________________________________________
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<PAGE>
EXHIBIT 4.10
PLEDGE AGREEMENT
----------------
PLEDGE AGREEMENT, dated as of __________, 1998 (this "Agreement"),
among Monsanto Company, a Delaware corporation (the "Company"),
______________________________, as collateral agent (in such capacity, together
with its successors in such capacity, the "Collateral Agent"), and
_______________________________________, as Purchase Contract Agent and as
attorney-in-fact of the Holders (as hereinafter defined) from time to time of
the Securities (as hereinafter defined) (in such capacity, together with its
successors in such capacity, the "Purchase Contract Agent") under the Purchase
Contract Agreement (as hereinafter defined).
RECITALS
The Company and the Purchase Contract Agent are parties to the
Purchase Contract Agreement, dated as of the date hereof (as modified and
supplemented and in effect from time to time, the "Purchase Contract
Agreement"), pursuant to which there will be issued Automatic Common Exchanged
Securities (the "Securities").
Each Security consists of (a) one Purchase Contract (as hereinafter
defined) and (b) [type and description of underlying securities] ("Underlying
Securities") having a principal amount equal to $__________ (the "Stated
Amount") and maturing on __________, ____ (the "Final Settlement Date"), subject
to the pledge of such Underlying Securities created hereby.
Pursuant to the terms of the Purchase Contract Agreement and the
Purchase Contracts, the Holders (as defined in the Purchase Contract Agreement)
from time to time of the Securities have irrevocably authorized the Purchase
Contract Agent, as attorney-in-fact of such Holders, among other things to
execute and deliver this Agreement on behalf of such Holders and to grant the
pledge provided hereby of the Underlying Securities constituting part of such
Securities as provided herein and subject to the terms hereof.
Accordingly, the Company, the Collateral Agent and the Purchase
Contract Agent, on its own behalf and as attorney-in-fact of the Holders from
time to time of the Securities, agree as follows:
<PAGE>
Section 1. Definitions. For all purposes of this Agreement, except
-----------
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular; and
(2) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Article, Section or other subdivision.
"Act" has the meaning specified in the Purchase Contract Agreement.
"Agreement" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more agreements
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Applicable Treasury Regulations" means Subpart O-Book-Entry
Procedure of Title 31 of the Code of Federal Regulations (31 CFR (S) 306.115 et.
seq.) and any other regulations of the United States Treasury Department from
time to time applicable to the transfer or pledge of book-entry U.S. Treasury
Securities.
"Business Day" means any day that is not a Saturday, a Sunday or a day
on which the New York Stock Exchange or banking institutions or trust companies
in The City of New York are authorized or obligated by law or executive order to
be closed.
"Collateral Agent" has the meaning specified in the first paragraph of
this instrument.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor shall have become such, and
thereafter "Company" shall mean such successor.
"Early Settlement" has the meaning specified in the Purchase Contract
Agreement.
"Early Settlement Amount" has the meaning specified in the Purchase
Contract Agreement.
"Final Settlement Date" has the meaning specified in the Recitals.
-2-
<PAGE>
"Holder" when used with respect to a Security, or a Purchase Contract
constituting a part thereof, has the meaning specified in the Purchase Contract
Agreement.
"Opinion of Counsel" has the meaning specified in the Purchase
Contract Agreement.
"Outstanding Securities" has the meaning specified in the Purchase
Contract Agreement.
"Outstanding Security Certificates" has the meaning specified in the
Purchase Contract Agreement.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge" has the meaning specified in Section 2 hereof.
"Pledged Underlying Securities" has the meaning specified in Section 2
hereof.
"Purchase Contract" has the meaning specified in the Purchase Contract
Agreement.
"Purchase Contract Agent" has the meaning specified in the first
paragraph of this instrument.
"Security" has the meaning specified in the Recitals.
"Security Certificate" has the meaning specified in the Purchase
Contract Agreement.
"Stated Amount" has the meaning specified in the Recitals.
"Termination Event" has the meaning specified in the Purchase Contract
Agreement.
"Underlying Securities" has the meaning specified in the Recitals.
Section 2. The Pledge. As collateral security for the performance
----------
when due by the Holders from time to time of the Securities of their respective
obligations under the Purchase Contracts constituting part of such Securities,
such Holders acting through the Purchase Contract Agent, as their attorney-in-
fact, hereby pledge and grant to the
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<PAGE>
Collateral Agent, for the benefit of the Company, a security interest in all of
the right, title and interest of such Holders in the Underlying Securities
constituting a part of such Securities. Prior to or concurrently with the
execution and delivery of this Agreement, the initial Holders shall (i) cause
the Underlying Securities to be delivered to the Collateral Agent [by Federal
Reserve Bank-Wire to the account of the Collateral Agent designated by it for
such purpose] and (ii) [take appropriate action so that the applicable Federal
Reserve Bank through which such Underlying Securities have been purchased will
reflect such transfer and the Pledge by appropriate entries in its records in
accordance with Applicable Treasury Regulations] [take appropriate action to
reflect such transfer and the Pledge by appropriate entries in its records]. In
addition, the execution and delivery hereof by the Purchase Contract Agent and
the Collateral Agent shall constitute (i) the notification to the Collateral
Agent (as bailee or otherwise) of the Pledge and (ii) an acknowledgment by the
Collateral Agent (as third party in possession or otherwise) of the Pledge and
of its holding of such Underlying Securities subject to the Pledge, in each
case, for purposes of perfecting the Pledge under [Applicable Treasury
Regulations and other] applicable law, including, to the extent applicable, the
Uniform Commercial Code as adopted and in effect in any applicable jurisdiction.
The pledge provided in this Section 2 is herein referred to as the "Pledge" and
the Underlying Securities subject to the Pledge, excluding any Underlying
Securities released from the Pledge as provided in Section 4 hereof, are
hereinafter referred to as the "Pledged Underlying Securities." Subject to the
Pledge, the Holders from time to time of the Securities shall have full
beneficial ownership of the Underlying Securities constituting a part of such
Securities.
Section 3. Distribution of Principal and Interest. (a) All payments
--------------------------------------
of principal of, or interest on, any Underlying Securities constituting part of
the Securities received by the Collateral Agent shall be paid by the Collateral
Agent by wire transfer in same day funds no later than ____________, New York
City time on the Business Day such interest payment is received by the
Collateral Agent (provided that in the event such interest payment is received
by the Collateral Agent on a day that is not a Business Day or after
____________, New York City time, on a Business Day, then such payment shall be
made no later than ____________, New York City time, on the next succeeding
Business Day) (i) in the case of (A) interest payments and (B) any principal
payments with respect to any Underlying Securities that have been released from
the Pledge pursuant to Section 4 hereof, to the Purchase Contract Agent to the
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<PAGE>
account designated by it for such purpose and (ii) in the case of principal
payments on any Pledged Underlying Securities, to the Company, in full
satisfaction of the respective obligations of the Holders of the Securities of
which such Pledged Underlying Securities are a part under the Purchase Contracts
forming a part of such Securities. All such payments received by the Purchase
Contract Agent as provided herein shall be applied by the Purchase Contract
Agent pursuant to the provisions of the Purchase Contract Agreement. If,
notwithstanding the foregoing, the Purchase Contract Agent shall receive any
payments of principal on account of any Pledged Underlying Securities, the
Purchase Contract Agent shall hold the same as trustee of an express trust for
the benefit of the Company (and promptly deliver over to the Company) for
application to the obligations of the Holders of the Securities of which such
Underlying Securities are a part under the Purchase Contracts relating to the
Securities of which such Underlying Securities are a part, and such Holders
shall acquire no right, title or interest in any such payments of principal so
received.
Section 4. Release of Pledged Underlying Securities. (a) Upon
----------------------------------------
notice to the Collateral Agent by the Company or the Purchase Contract Agent
that there has occurred a Termination Event, the Collateral Agent shall release
all Pledged Underlying Securities from the Pledge and shall transfer all such
Underlying Securities, free and clear of any lien, pledge or security interest
created hereby, to the Purchase Contract Agent.
(b) Upon notice to the Collateral Agent by the Purchase Contract
Agent that one or more Holders of Securities have elected to effect Early
Settlement of their respective obligations under the Purchase Contracts forming
a part of such Securities in accordance with the terms of the Purchase Contracts
and the Purchase Contract Agreement, and that the Purchase Contract Agent has
received from such Holders, and paid to the Company, the related Early
Settlement Amounts pursuant to the terms of the Purchase Contracts and the
Purchase Contract Agreement and that all conditions to such Early Settlement
have been satisfied, then the Collateral Agent shall release from the Pledge
Pledged Underlying Securities with a principal amount equal to the product of
(i) the Stated Amount times (ii) the number of such Purchase Contracts as to
-----
which such Holders have elected to effect Early Settlement.
(c) Transfers of Underlying Securities pursuant to Section 4(a) or
(b) shall be by Federal Reserve Bank-Wire or in another appropriate manner, (i)
if the Collateral Agent shall have received such notification at or prior to
____________, New York City time, on a Business Day, then no
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<PAGE>
later than ____________, New York City time, on such Business Day and (ii) if
the Collateral Agent shall have received such notification on a day that is not
a Business Day or after ____________, New York City time, on a Business Day,
then no later than ____________, New York City time, on the next succeeding
Business Day.
Section 5. Rights and Remedies. (a) The Collateral Agent shall have
-------------------
all of the rights and remedies with respect to the Pledged Underlying Securities
of a secured party under the Uniform Commercial Code as in effect in the State
of New York (the "Code") (whether or not said Code is in effect in the
jurisdiction where the rights and remedies are asserted) and such additional
rights and remedies to which a secured party is entitled under the laws in
effect in any jurisdiction where any rights and remedies hereunder may be
asserted.
(b) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, in the event the Collateral Agent is unable
to make payments to the Company on account of principal payments of any Pledged
Underlying Securities as provided in Section 3 hereof in satisfaction of the
obligations of the Holder of the Securities of which such Pledged Underlying
Securities are a part under the Purchase Contracts forming a part of such
Securities, the Collateral Agent shall have and may exercise, with reference to
such Pledged Underlying Securities and such obligations of such Holder, any and
all of the rights and remedies available to a secured party under the Code after
default by a debtor, and as otherwise granted herein or under any other law.
(c) Without limiting any rights or powers otherwise granted by this
Agreement to the Collateral Agent, the Collateral Agent is hereby irrevocably
authorized to receive and collect all payments of principal of or interest on
the Pledged Underlying Securities.
(d) The Purchase Contract Agent agrees that, from time to time, upon
the written request of the Collateral Agent, the Purchase Contract Agent shall
execute and deliver such further documents and do such other acts and things as
the Collateral Agent may reasonably request in order to maintain the Pledge, and
the perfection and priority thereof, and to confirm the rights of the Collateral
Agent hereunder.
Section 6. The Collateral Agent. The Collateral Agent and the
--------------------
Company hereby agree between themselves as follows (it being understood and
agreed that neither the
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<PAGE>
Purchase Contract Agent nor any Holder of Securities shall have any rights under
this Section 6):
6.01. Appointment, Powers and Immunities. The Collateral Agent shall
----------------------------------
act as agent for the Company hereunder with such powers as are specifically
vested in the Collateral Agent by the terms of this Agreement, together with
such other powers as are reasonably incidental thereto. The Collateral Agent:
(a) shall have no duties or responsibilities except those expressly set forth in
this Agreement and no implied covenants or obligations shall be inferred from
this Agreement against the Collateral Agent, nor shall the Collateral Agent be
bound by the provisions of any agreement by any party hereto beyond the specific
terms hereof; (b) shall not be responsible to the Company for any recitals
contained in this Agreement, or in any certificate or other document referred to
or provided for in, or received by it under, this Agreement, the Securities or
the Purchase Contract Agreement, or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement (other than as
against the Collateral Agent), the Securities or the Purchase Contract Agreement
or any other document referred to or provided for herein or therein or for any
failure by the Company or any other Person (except the Collateral Agent) to
perform any of its obligations hereunder or thereunder; (c) shall not be
required to initiate or conduct any litigation or collection proceedings
hereunder (except pursuant to directions furnished under Section 6.02 hereof);
(d) shall not be responsible for any action taken or omitted to be taken by it
hereunder or under any other document or instrument referred to or provided for
herein or in connection herewith or therewith, except for its own negligence;
and (e) shall not be required to advise any party as to selling or retaining, or
taking or refraining from taking any action with respect to, any securities or
other property deposited hereunder.
No provision of this Agreement shall require the Collateral Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. In no event shall the Collateral
Agent be liable for any amount in excess of the value of the Pledged Underlying
Securities.
6.02. Instructions of the Company. The Company shall have the right,
---------------------------
by one or more instruments in writing executed and delivered to the Collateral
Agent, to direct the time, method and place of conducting any proceeding for any
right or remedy available to the Collateral Agent, or of exercising any power
conferred on the Collateral Agent, or to direct the taking or refraining from
taking of any action
-7-
<PAGE>
authorized by this Agreement; provided, however, that (i) such direction shall
-------- -------
not conflict with the provisions of any law or of this Agreement and (ii) the
Collateral Agent shall be adequately indemnified as provided herein. Nothing in
this Section 6.02 shall impair the right of the Collateral Agent in its
discretion to take any action or omit to take any action which it deems proper
and which is not inconsistent with such direction.
6.03. Reliance by Collateral Agent. The Collateral Agent shall be
----------------------------
entitled to rely upon any certification, order, judgment, opinion, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telex, telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person or Persons
(without being required to determine the correctness of any fact stated
therein), and upon advice and statements of legal counsel and other experts
selected by the Collateral Agent. As to any matters not expressly provided for
by this Agreement, the Collateral Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder in accordance with instructions
given by the Company in accordance with this Agreement.
6.04. Rights in Other Capacities. The Collateral Agent and its
--------------------------
affiliates may (without having to account therefor to the Company) accept
deposits from, lend money to, make investments in and generally engage in any
kind of banking, trust or other business with the Purchase Contract Agent and
any Holder of Securities (and any of their subsidiaries or affiliates) as if it
were not acting as the Collateral Agent, and the Collateral Agent and its
affiliates may accept fees and other consideration from the Purchase Contract
Agent and any Holder of Securities without having to account for the same to the
Company, provided that the Collateral Agent covenants and agrees with the
--------
Company that the Collateral Agent shall not accept, receive or permit there to
be created in its favor any security interest, lien or other encumbrance of any
kind in or upon the Pledged Underlying Securities.
6.05. Non-Reliance on Collateral Agent. The Collateral Agent shall
--------------------------------
not be required to keep itself informed as to the performance or observance by
the Purchase Contract Agent or any Holder of Securities of this Agreement, the
Purchase Contract Agreement, the Securities or any other document referred to or
provided for herein or therein or to inspect the properties or books of the
Purchase Contract Agent or any Holder of Securities. The Collateral Agent shall
not have any duty or responsibility to provide the Company with any credit or
other information
-8-
<PAGE>
concerning the affairs, financial condition or business of the Purchase Contract
Agent or any Holder of Securities (or any of their affiliates) that may come
into the possession of the Collateral Agent or any of its affiliates.
6.06. Compensation and Indemnity. The Company agrees: (i) to pay
--------------------------
the Collateral Agent from time to time reasonable compensation for all services
rendered by its hereunder and (ii) to indemnify the Collateral Agent for, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of its powers and duties under this Agreement,
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of such powers and
duties.
6.07. Failure to Act. In the event of any ambiguity in the
--------------
provisions of this Agreement or any dispute between or conflicting claims by or
among the undersigned and/or any other person or entity with respect to any
funds or property deposited hereunder, the Collateral Agent shall be entitled,
at its sole option, to refuse to comply with any and all claims, demands or
instructions with respect to such property or funds so long as such dispute or
conflict shall continue, and the Collateral Agent shall not be or become liable
in any way to any of the undersigned for its failure or refusal to comply with
such conflicting claims, demands or instructions. The Collateral Agent shall be
entitled to refuse to act until either (i) such conflicting or adverse claims or
demands shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing, satisfactory to the Collateral Agent or (ii) the Collateral Agent shall
have received security or an indemnity satisfactory to the Collateral Agent
sufficient to save the Collateral Agent harmless from and against any and all
loss, liability or expense which the Collateral Agent may incur by reason of its
acting. The Collateral Agent may in addition elect to commence an interpleader
action or seek other judicial relief or orders as the Collateral Agent may deem
necessary. Notwithstanding anything contained herein to the contrary, the
Collateral Agent shall not be required to take any action that is in its opinion
contrary to law or to the terms of this Agreement, or which would in its opinion
subject it or any of its officers, employees or directors to liability.
6.08. Resignation of Collateral Agent. Subject to the appointment
-------------------------------
and acceptance of a successor Collateral Agent as provided below, (a) the
Collateral Agent may resign at any time by giving notice thereof to the Company
and the
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<PAGE>
Purchase Contract Agent, (b) the Collateral Agent may be removed at any time by
the Company and (c) if the Collateral Agent fails to perform any of its material
obligations hereunder in any material respect for a period of not less than 20
days after receiving notice of such failure by the Purchase Contract Agent and
such failure shall be continuing, the Collateral Agent may be removed by the
Purchase Contract Agent. The Purchase Contract Agent shall promptly notify the
Company of any removal of the Collateral Agent pursuant to clause (c) of the
immediately preceding sentence. Upon any such resignation or removal, the
Company shall have the right to appoint a successor Collateral Agent. If no
successor Collateral Agent shall have been so appointed and shall have accepted
such appointment within 30 days after the retiring Collateral Agent's giving of
notice of resignation or such removal, then the retiring Collateral Agent may
petition any court of competent jurisdiction for the appointment of a successor
Collateral Agent. The Collateral Agent shall be a bank which has an office in
New York, New York with a combined capital and surplus of at least $50,000,000.
Upon the acceptance of any appointment as Collateral Agent hereunder by a
successor Collateral Agent, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, and the retiring Collateral Agent shall take
all appropriate action to transfer any money and property held by it hereunder
(including the Pledged Underlying Securities) to such successor Collateral
Agent. The retiring Collateral Agent shall, upon such succession, be discharged
from its duties and obligations as Collateral Agent hereunder. After any
retiring Collateral Agent's resignation hereunder as Collateral Agent, the
provisions of this Section 6 shall continue in effect for its benefit in respect
of any actions taken or omitted to be taken by it while it was acting as the
Collateral Agent.
6.09. Right to Appoint Agent or Advisor. The Collateral Agent shall
---------------------------------
have the right to appoint agents or advisors in connection with any of its
duties hereunder, and the Collateral Agent shall not be liable for any action
taken or omitted by such agents or advisors selected in good faith.
The provisions of this Section 6 shall survive termination of this
Agreement and the resignation or removal of the Collateral Agent.
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<PAGE>
Section 7. Amendment.
---------
7.01. Amendment Without Consent of Holders. Without the consent of
------------------------------------
any Holders, the Company, the Collateral Agent and the Purchase Contract Agent,
at any time and from time to time, may amend this Agreement, in form
satisfactory to the Company, the Collateral Agent and the Purchase Contract
Agent, for any of the following purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company; or
(2) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(3) to evidence and provide for the acceptance of appointment
hereunder by a successor Collateral Agent or Purchase Contract Agent; or
(4) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other such provisions herein, or
to make any other provisions with respect to such matters or questions
arising under this Agreement, provided such action shall not adversely
--------
affect the interests of the Holders.
7.02. Amendment with Consent of Holders. With the consent of the
---------------------------------
Holders of not less than a majority of the Outstanding Securities, by Act of
said Holders delivered to the Company, the Agent and the Collateral Agent, the
Company, when authorized by a Board Resolution, the Agent and the Collateral
Agent may amend this Agreement for the purpose of modifying in any manner the
provisions of this Agreement or the rights of the Holders in respect of the
Securities; provided, however, that no such supplemental agreement shall,
-------- -------
without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the amount or type of Underlying Securities underlying a
Security, impair the right of the Holder of any Security to receive
interest payments on the Underlying Securities or otherwise adversely
affect the Holder's rights in or to such Underlying Securities; or
(2) otherwise effect any action that would require the consent of the
Holder of each Outstanding Security affected thereby pursuant to the
Purchase
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<PAGE>
Contract Agreement if such action were effected by an agreement
supplemental thereto; or
(3) reduce the percentage of Outstanding Securities the consent of
whose Holders is required for any such amendment.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed amendment, but it shall be
sufficient if such Act shall approve the substance thereof.
7.03. Execution of Amendments. In executing any amendment permitted
-----------------------
by this Section, the Collateral Agent and the Purchase Contract Agent shall be
entitled to receive and (subject to Section 6.01 hereof, with respect to the
Collateral Agent, and Section 701 of the Purchase Contract Agreement, with
respect to the Purchase Contract Agent) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement.
7.04. Effect of Amendments. Upon the execution of any amendment
--------------------
under this Section, this Agreement shall be modified in accordance therewith,
and such amendment shall form a part of this Agreement for all purposes; and
every Holder of Security Certificates theretofore or thereafter authenticated,
executed on behalf of the Holders and delivered under the Purchase Contract
Agreement shall be bound thereby.
7.05. Reference to Amendments. Security Certificates authenticated,
-----------------------
executed on behalf of the Holders and delivered after the execution of any
amendment pursuant to this Section may, and shall if required by the Collateral
Agent or the Purchase Contract Agent, bear a notation in form approved by the
Purchase Contract Agent and the Collateral Agent as to any matter provided for
in such amendment. If the Company shall so determine, new Security Certificates
so modified as to conform, in the opinion of the Collateral Agent, the Purchase
Contract Agent and the Company, to any such amendment may be prepared and
executed by the Company and authenticated, executed on behalf of the Holders and
delivered by the Purchase Contract Agent in accordance with the Purchase
Contract Agreement in exchange for Outstanding Security Certificates.
Section 8. Miscellaneous.
-------------
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<PAGE>
8.01. No Waiver. No failure on the part of the Collateral Agent or
---------
any of its agents to exercise, and no course of dealing with respect to, and no
delay in exercising, any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise by the Collateral Agent
or any of its agents of any right, power or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies herein are cumulative and are not exclusive of any remedies
provided by law.
8.02. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. The Company,
the Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, hereby submit to
the nonexclusive jurisdiction of the United States District Court for the
Southern District of New York and of any New York state court sitting in New
York City for the purposes of all legal proceedings arising out of or relating
to this Agreement or the transactions contemplated hereby. The Company, the
Collateral Agent and the Holders from time to time of the Securities, acting
through the Purchase Contract Agent as their attorney-in-fact, irrevocably
waive, to the fullest extent permitted by applicable law, any objection which
they may now or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding brought in such a
court has been brought in an inconvenient forum.
8.03. Notices. All notices, requests, consents and other
-------
communications provided for herein (including, without limitation, any
modifications of, or waivers or consents under, this Agreement) shall be given
or made in writing (including, without limitation, by telecopy) delivered to the
intended recipient at the "Address for Notices" specified below its name on the
signature pages hereof or, as to any party, at such other address as shall be
designated by such party in a notice to the other parties. Except as otherwise
provided in this Agreement, all such communications shall be deemed to have been
duly given when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.
8.04. Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the respective successors and assigns of the
Company, the Collateral Agent and the Purchase Contract Agent, and the Holders
from time to time of the Securities, by their acceptance of the same, shall be
deemed to have agreed to be
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<PAGE>
bound by the provisions hereof and to have ratified the agreements of, and the
grant of the Pledge hereunder by, the Purchase Contract Agent.
8.05. Counterparts. This Agreement may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.06. Severability. If any provision hereof is invalid and
------------
unenforceable in any jurisdiction, then, to the fullest extent permitted by law,
(i) the other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in order to carry out the
intentions of the parties hereto as nearly as may be possible and (ii) the
invalidity or unenforceability of any provision hereof in any jurisdiction shall
not affect the validity or enforceability of such provision in any other
jurisdiction.
8.07. Expenses, etc. The Company agrees to reimburse the Collateral
--------------
Agent for: (a) all reasonable out-of-pocket costs and expenses of the
Collateral Agent (including, without limitation, the reasonable fees and
expenses of counsel to the Collateral Agent), in connection with (i) the
negotiation, preparation, execution and delivery or performance of this
Agreement and (ii) any modification, supplement or waiver of any of the terms of
this Agreement; (b) all reasonable costs and expenses of the Collateral Agent
(including, without limitation, reasonable fees and expenses of counsel) in
connection with (i) any enforcement or proceedings resulting or incurred in
connection with causing any Holder of Securities to satisfy its obligations
under the Purchase Contracts forming a part of the Securities and (ii) the
enforcement of this Section 8.07; and (c) all transfer, stamp, documentary or
other similar taxes, assessments or charges levied by any governmental or
revenue authority in respect of this Agreement or any other document referred to
herein and all costs, expenses, taxes, assessments and other charges incurred in
connection with any filing, registration, recording or perfection of any
security interest contemplated hereby.
8.08. Security Interest Absolute. All rights of the Collateral Agent
--------------------------
and security interests hereunder, and all obligations of the Holders from time
to time of the Securities hereunder, shall be absolute and unconditional
irrespective of:
-14-
<PAGE>
(a) any lack of validity or enforceability of any provision of
the Purchase Contracts or the Securities or any other agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or any
other term of, or any increase in the amount of, all or any of the
obligations of Holders of Securities under the related Purchase
Contracts, or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Purchase
Contract Agreement or any Purchase Contract or any other agreement or
instrument relating thereto; or
(c) any other circumstance which might otherwise constitute a
defense available to, or discharge of, a borrower, a guarantor or a
pledgor.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
MONSANTO COMPANY
By:________________________________
Name:
Title:
Address for Notices:
800 North Lindbergh Boulevard
St. Louis, Missouri 63167
Attention:
Telecopy: ( ) ___-_____
__________________________________,
as Purchase Contract Agent and as
attorney-in-fact of the Holders
from time to time of the Securities
By:________________________________
Name:
Title:
-15-
<PAGE>
Address for Notices:
[Address]
Attention:
__________________________________,
as Collateral Agent
By:________________________________
Name:
Title:
Address for Notices:
[Address]
Attention:
-16-
<PAGE>
EXHIBIT 5
May 6, 1998
Board of Directors
Monsanto Company
800 North Lindbergh Boulevard
St. Louis, Missouri 63167
Ladies and Gentlemen:
We have acted as special counsel to Monsanto Company, a Delaware
corporation (the "Company"), and are rendering this opinion in connection with
the Registration Statement on Form S-3 (the "Registration Statement") being
filed by the Company with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Company's (i) common stock, $2.00 par value per share, including rights attached
thereto to purchase shares of Series A Junior Participating Preferred Stock
pursuant to the Company's Rights Plan (collectively, the "Common Stock"); (ii)
preferred stock, no par value per share (the "Preferred Stock"); (iii)
depositary shares representing shares of the Preferred Stock ("Depositary
Shares"); (iv) senior debt securities (the "Senior Debt Securities"); (v)
subordinated debt securities (the "Subordinated Debt Securities"); (vi) warrants
to purchase Common Stock, Preferred Stock, Senior Debt Securities, Subordinated
Debt Securities, or Depositary Shares (the "Warrants"); and (vii) contracts to
purchase Common Stock or Preferred Stock ("Stock Purchase Contracts"), all of
which may be issued from time to time on a delayed or continuous basis pursuant
to Rule 415 under the Securities Act at an aggregate public offering price not
to exceed $2,000,000,000.
We have examined the Registration Statement including the exhibits thereto
and such other documents, corporate records, and instruments and have examined
such laws and regulations as we have deemed necessary for the purposes of this
opinion. Based upon such examination, we are of the following opinion:
1. The Company has been duly incorporated and is a validly existing
corporation under the laws of the State of Delaware.
2. With request to the Common Stock, when (i) the Common Stock has been
duly authorized by the Company's Board of Directors or Executive Committee, (ii)
the Registration Statement has become effective under the Securities Act, (iii)
the terms of the sale of the Common
<PAGE>
Stock have been duly established in conformity with the Company's Certificate of
Incorporation and By-laws and do not violate any applicable law or result in a
default under or breach of any agreement or instrument binding on the Company
and comply with any requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company, and (iv) the Common
Stock has been issued and sold as contemplated by the Registration Statement,
the Common Stock will be validly issued, fully paid, and nonassessable.
3. With respect to the Preferred Stock, when (i) the Preferred Stock has
been duly authorized by the Company's Board of Directors or Executive Committee,
(ii) the Registration Statement has become effective under the Securities Act,
(iii) appropriate Certificate or Certificates of Designations relating to a
class or series of the Preferred Stock to be sold under the Registration
Statement have been duly authorized and adopted and filed with the Secretary of
State of the State of Delaware, (iv) the terms of issuance and sale of shares of
such class or series of Preferred Stock have been duly established in conformity
with the Company's Certificate of Incorporation and By-laws and do not violate
any applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company, and (v) shares of such class or series of Preferred Stock have been
duly issued and sold as contemplated by the Registration Statement, such
Preferred Stock will be validly issued, fully paid, and nonassessable.
4. With respect to Depositary Shares, when (i) the Registration Statement
has become effective under the Securities Act, (ii) the Deposit Agreement
relating to the Depositary Shares has been duly authorized, executed and
delivered, (iii) the terms of the Depositary Shares and of their issuance have
been duly established in conformity with the Deposit Agreement and do not
violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and comply with any requirement
or restriction imposed by any court or governmental body having jurisdiction
over the Company, (iv) the class or series of Preferred Stock that is
represented by the Depositary Shares has been duly authorized, validly issued
and delivered to the Depositary, (v) the Depositary Receipts evidencing the
Depositary Shares have been executed, countersigned and issued against deposit
of the class or series of Preferred Stock in accordance with the Deposit
Agreement, and (vi) the Depositary Shares have been issued and sold as
contemplated by the Registration Statement, the Depositary Shares will be
validly issued and the Depositary Receipts will entitle the holders thereof to
the rights specified in the Depositary Shares and the Deposit Agreement, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
5. With respect to the Senior Debt Securities and the Subordinated Debt
Securities, when (i) the Registration Statement has become effective under the
Securities Act, (ii) the Indenture relating to the applicable series of Debt
Securities has been duly authorized, executed and delivered, (iii) the terms of
such Senior Debt Securities or Subordinated Debt Securities and of their issue
and sale have been duly established in conformity with resolutions of the Board
of Directors of the Company and in conformity with the applicable Indenture, do
not violate any applicable law or result in a default under or breach of any
agreement or instrument binding upon the Company and comply with any requirement
or restriction imposed by any court or governmental body having jurisdiction
over the Company, and (iv) such Debt Securities have been duly executed and
authenticated in accordance with the applicable Indenture and issued and sold as
contemplated in the Registration Statement,
<PAGE>
such Debt Securities will constitute valid and legally binding obligations of
the Company, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
6. With respect to the Warrants, when (i) the Registration Statement has
become effective under the Securities Act, (ii) the Warrant Agreement relating
to the Warrants has been duly authorized, executed, and delivered, (iii) the
terms of the Warrants and of their issuance and sale have been duly established
in conformity with the Warrant Agreement and do not violate any applicable law
or result in a default under or breach of any agreement or instrument binding
upon the Company and comply with any requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company, and (iv) the
Warrants have been duly executed and countersigned in accordance with the
Warrant Agreement and issued and sold as contemplated by the Registration
Statement, the Warrants will constitute valid and legally binding obligations of
the Company, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
7. With respect to the Stock Purchase Contracts, when (i) the
Registration Statement has become effective under the Securities Act, (ii) the
Purchase Contract Agreement relating to the Stock Purchase Contracts has been
duly authorized, executed and delivered, (iii) the terms of the Stock Purchase
Contracts and of their issuance and sale have been duly established in
conformity with the Purchase Contract Agreement and do not violate any
applicable law or result in a default under or breach of any agreement or
instrument binding upon the Company and comply with any requirement or
restriction imposed by any court or governmental body having jurisdiction over
the Company, and (iv) the Stock Purchase Contracts have been duly executed and
countersigned in accordance with the Purchase Contract Agreement and issued and
sold as contemplated by the Registration Statement, the Stock Purchase Contracts
will constitute valid and legally binding obligations of the Company, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
We express no opinion with respect to the laws of, or the effect or
applicability of the laws of, any jurisdiction other than the laws of the State
of Illinois, United States federal laws, and the corporate law of the State of
Delaware. To the extent that any applicable document is stated to be governed by
the laws of another jurisdiction, we have assumed for purposes of this opinion
that the laws of such jurisdiction are identical to the laws of the State of
Illinois.
We have relied as to certain matters on information obtained from public
officials, officers of the Company, and other sources believed by us to be
responsible, and we have assumed that the Indentures will be duly authorized,
executed, and delivered by the respective Trustees thereunder, the Deposit
Agreement will be duly authorized, executed, and delivered by the Depositary
thereunder, the Warrant Agreement will be duly authorized, executed, and
delivered by the Warrant Agent thereunder and the Purchase Contract Agreement
will be duly authorized, executed and delivered by the Purchase Contract Agent
thereunder, assumptions which we have not independently verified.
<PAGE>
We hereby consent to the use of our name under the heading "Legal Matters"
in the Prospectus forming a part of the Registration Statement and to the use of
this opinion for filing with the Registration Statement as Exhibit 5 thereto.
Very truly yours,
/s/ Winston & Strawn
318506.1
<PAGE>
Exhibit 12
MONSANTO COMPANY AND SUBSIDIARIES
---------------------------------
COMPUTATION OF THE RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in Millions)
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------------
1997 1996 1995 1994 1993
------ ------ ------ ------ -----
<S> <C> <C> <C> <C> <C>
Income from continuing operations before
provision for income taxes................ $ 366* $ 553* $ 645* $ 636* $ 427*
Add
Fixed charges........................... 236 172 178 140 141
Less capitalized interest............ (14) (9) (5) (4) (7)
Dividends from affiliated
companies........................... 4 6 3 2 5
Less equity income (add equity loss)
of affiliated companies................ (20) 42 (3) (4) (20)
----- ----- ----- ----- -----
Income as adjusted............... $ 572 $ 764 $ 818 $ 770 $ 546
===== ===== ===== ===== =====
Fixed Charges
Interest expense........................ $ 170 $ 119 $ 132 $ 100 $ 101
Capitalized interest................. 14 9 5 4 7
Portion of rents representative of
interest factor..................... 52 44 41 36 33
----- ----- ----- ----- -----
Fixed charges................... $ 236 $ 172 $ 178 $ 140 $ 141
===== ===== ===== ===== =====
Ratio of earnings to fixed charges......... 2.42 4.44 4.60 5.50 3.87
===== ===== ===== ===== =====
</TABLE>
______________
* Includes charges for acquired in-process research and development of $684
million in 1997, and charges for restructuring and other unusual items of $376
million in 1996 and $90 million in 1995. Excluding these unusual items, the
ratio of earnings to fixed charges would have been 5.32, 6.60 and 5.10 in
1997, 1996 and 1995, respectively. The ratio was not materially affected by
the restructuring and other unusual items in 1994 and 1993.
<PAGE>
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Monsanto Company on Form S-3 of our report dated February 27, 1998, incorporated
by reference in the Annual Report on Form 10-K of Monsanto Company for the year
ended December 31, 1997 and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
St. Louis, Missouri
May 6, 1998
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That each person whose signature appears below, as a Director or Officer of
Monsanto Company (the "Company"), a Delaware corporation with its general
offices in the County of St. Louis, Missouri, does hereby make, constitute and
appoint R. WILLIAM IDE III, BARBARA L. BLACKFORD and SONYA M. DAVIS, or any of
them acting alone, to be his or her true lawful attorneys, with full power of
substitution and resubstitution, in his or her name, place and stead, in any and
all capacities, to execute and sign the Registration Statement on Form S-3 and
any Amendments thereto to be filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act"),
covering the registration of debt securities, common stock, preferred stock, or
any hybrid or combination thereof ("Securities"), including without limitation
warrants or other rights to purchase Securities and Securities convertible into
other Securities, to be issued by the Company from time to time after the
Registration Statement becomes effective, giving and granting unto said
attorneys full power and authority to do and perform such actions as fully as
they might have done or could do if personally present and executing any of said
documents.
Dated and effective as of the 8th day of December, 1997.
/s/ Robert B. Shapiro
- ------------------------------ --------------------------------
Robert B. Shapiro, Director and Nicholas L. Reding, Director
Principal Executive Officer
- ------------------------------ --------------------------------
Robert M. Heyssel, Director John S. Reed, Director
- ------------------------------ --------------------------------
Michael Kantor, Director John E. Robson, Director
- ------------------------------ --------------------------------
Gwendolyn S. King, Director William D. Ruckelshaus, Director
- ------------------------------ --------------------------------
Philip Leder, Director Robert B. Hoffman, Principal
Financial Officer
- ------------------------------ --------------------------------
Jacobus F. M. Peters, Director Michael R. Hogan, Principal
Accounting Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That each person whose signature appears below, as a Director or Officer of
Monsanto Company (the "Company"), a Delaware corporation with its general
offices in the County of St. Louis, Missouri, does hereby make, constitute and
appoint R. WILLIAM IDE III, BARBARA L. BLACKFORD and SONYA M. DAVIS, or any of
them acting alone, to be his or her true lawful attorneys, with full power of
substitution and resubstitution, in his or her name, place and stead, in any and
all capacities, to execute and sign the Registration Statement on Form S-3 and
any Amendments thereto to be filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act"),
covering the registration of debt securities, common stock, preferred stock, or
any hybrid or combination thereof ("Securities"), including without limitation
warrants or other rights to purchase Securities and Securities convertible into
other Securities, to be issued by the Company from time to time after the
Registration Statement becomes effective, giving and granting unto said
attorneys full power and authority to do and perform such actions as fully as
they might have done or could do if personally present and executing any of said
documents.
Dated and effective as of the 5th day of December, 1997.
/s/ Nicholas L. Reding
- ------------------------------ --------------------------------
Robert B. Shapiro, Director and Nicholas L. Reding, Director
Principal Executive Officer
/s/ Robert M. Heyssel
- ------------------------------ --------------------------------
Robert M. Heyssel, Director John S. Reed, Director
/s/ Michael Kantor /s/ John E. Robson
- ------------------------------ --------------------------------
Michael Kantor, Director John E. Robson, Director
/s/ Gwendolyn S. King /s/ William D. Ruckelshaus
- ------------------------------ --------------------------------
Gwendolyn S. King, Director William D. Ruckelshaus, Director
/s/ Philip Leder
- ------------------------------ --------------------------------
Philip Leder, Director Robert B. Hoffman, Principal
Financial Officer
/s/ Jacobus F. M. Peters
- ------------------------------ --------------------------------
Jacobus F. M. Peters, Director Michael R. Hogan, Principal
Accounting Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That each person whose signature appears below, as a Director or Officer of
Monsanto Company (the "Company"), a Delaware corporation with its general
offices in the County of St. Louis, Missouri, does hereby make, constitute and
appoint R. WILLIAM IDE III, BARBARA L. BLACKFORD and SONYA M. DAVIS, or any of
them acting alone, to be his or her true lawful attorneys, with full power of
substitution and resubstitution, in his or her name, place and stead, in any and
all capacities, to execute and sign the Registration Statement on Form S-3 and
any Amendments thereto to be filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act"),
covering the registration of debt securities, common stock, preferred stock, or
any hybrid or combination thereof ("Securities"), including without limitation
warrants or other rights to purchase Securities and Securities convertible into
other Securities, to be issued by the Company from time to time after the
Registration Statement becomes effective, giving and granting unto said
attorneys full power and authority to do and perform such actions as fully as
they might have done or could do if personally present and executing any of said
documents.
Dated and effective as of the 14th day of December, 1997.
- ------------------------------ --------------------------------
Robert B. Shapiro, Director and Nicholas L. Reding, Director
Principal Executive Officer
/s/ John S. Reed
- ------------------------------ --------------------------------
Robert M. Heyssel, Director John S. Reed, Director
- ------------------------------ --------------------------------
Michael Kantor, Director John E. Robson, Director
- ------------------------------ --------------------------------
Gwendolyn S. King, Director William D. Ruckelshaus, Director
- ------------------------------ --------------------------------
Philip Leder, Director Robert B. Hoffman, Principal
Financial Officer
- ------------------------------ --------------------------------
Jacobus F. M. Peters, Director Michael R. Hogan, Principal
Accounting Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That each person whose signature appears below, as a Director or Officer of
Monsanto Company (the "Company"), a Delaware corporation with its general
offices in the County of St. Louis, Missouri, does hereby make, constitute and
appoint R. WILLIAM IDE III, BARBARA L. BLACKFORD and SONYA M. DAVIS, or any of
them acting alone, to be his or her true lawful attorneys, with full power of
substitution and resubstitution, in his or her name, place and stead, in any and
all capacities, to execute and sign the Registration Statement on Form S-3 and
any Amendments thereto to be filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Act"),
covering the registration of debt securities, common stock, preferred stock, or
any hybrid or combination thereof ("Securities"), including without limitation
warrants or other rights to purchase Securities and Securities convertible into
other Securities, to be issued by the Company from time to time after the
Registration Statement becomes effective, giving and granting unto said
attorneys full power and authority to do and perform such actions as fully as
they might have done or could do if personally present and executing any of said
documents.
Dated and effective as of the 9th day of December, 1997.
- ------------------------------ --------------------------------
Robert B. Shapiro, Director and Nicholas L. Reding, Director
Principal Executive Officer
- ------------------------------ --------------------------------
Robert M. Heyssel, Director John S. Reed, Director
- ------------------------------ --------------------------------
Michael Kantor, Director John E. Robson, Director
- ------------------------------ --------------------------------
Gwendolyn S. King, Director William D. Ruckelshaus, Director
/s/ Robert B. Hoffman
- ------------------------------ --------------------------------
Philip Leder, Director Robert B. Hoffman, Principal
Financial Officer
/s/ Michael R. Hogan
- ------------------------------ --------------------------------
Jacobus F. M. Peters, Director Michael R. Hogan, Principal
Accounting Officer
<PAGE>
Exhibit 25
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
____________________________________________
Monsanto Company
(Exact name of obligor as specified in its charter)
Delaware 43-0420020
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
800 North Lindbergh Blvd.
St. Louis, Missouri 63167
(Address of principal executive offices) (Zip Code)
-----------
Debt Securities
(Title of the indenture securities)
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
New York State Banking Department, State House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
-2-
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-
1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see
Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-
50010, which is incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank (National Association),
Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 30th day of April, 1998.
THE CHASE MANHATTAN BANK
By /s/ Timothy E. Burke
-----------------------------------------
/s/ Timothy E. Burke
Second Vice President
- 3 -
