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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 30, 1998
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Monsanto Company
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(Exact name of Registrant as specified in Charter)
Delaware
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(State of incorporation)
1-2516 43-0420020
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(Commission File Number) (IRS Employer Identification No.)
800 North Lindbergh Boulevard, St. Louis, Missouri 63167
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (314) 694-1000
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Item 5. Other Events.
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On November 30, 1998, Monsanto Company (the "Company") completed the public
offering of 24,956,250 million shares of the Company's common stock (the "Common
Stock") and 17.5 million units of 6.50% Adjustable Conversion-rate Equity
Security Units (the "ACES"). The share price for the Common Stock was $40.00
with net proceeds to the Company (after deducting estimated expenses) of
approximately $968,000,000. The unit price, or stated amount per unit, for the
ACES was $40.00 with net proceeds to the Company (after deducting estimated
expenses) of approximately $680,000,000. Each ACES unit consists of (1) a
purchase contract under which (a) on November 30, 2001, the unit holder will
purchase not more than one share of Common Stock and not less than 0.8197 shares
of Common Stock for each ACES unit held depending on the average trading price
of the Common Stock during a 20-day period ending before November 30, 2001 and
(b) the Company will pay quarterly deferrable contract fees to the holder at
0.55% of the stated amount; and (2) a Junior Subordinated Deferrable Debenture
having a principal amount equal to the stated amount, an interest rate of 5.95%
and a maturity date of November 30, 2003, subject to a call option granted to
Goldman, Sachs & Co.
On December 9, 1998, the Company completed a private placement of
$2,500,000,000 in aggregate principal amount of debt securities, consisting of
$500,000,000 of its 5.375% Notes due 2001 (the "3-Year Notes"), $600,000,000 of
its 5.750% Notes due 2005 (the "7-Year Notes"), $200,000,000 of its 5.875% Notes
due 2008 (the "10-Year Notes"), $500,000,000 of its 6.500% Debentures due 2018
(the "20-Year Debentures") and $700,000,000 of its 6.600% Debentures due 2028
(the "30-Year Debentures" and, together with the 3-Year Notes, the 7-Year Notes,
the 10-Year Notes and the 20-Year Debentures, the "Debt Securities"). The Debt
Securities will mature on December 1 of their respective years of maturity, and
interest is payable semi-annually on June 1 and December 1, beginning June 1,
1999. The 3-Year Notes are not redeemable before maturity. The other series of
Debt Securities are redeemable as a whole or in part, at the option of the
Company, at any time at a redemption price determined by a specified formula.
The Debt Securities are senior unsecured obligations of the Company, and rank
equally with all other senior unsecured indebtedness of the Company.
The 3-Year Notes were priced to investors at 99.852% of par value, the
7-Year Notes were priced to investors at 99.735% of par value, the 10-Year Notes
were priced to investors at 99.718% of par value, the 20-Year Debentures were
priced to investors at 99.582% of par value, and the 30-Year Debentures were
priced to investors at 99.640% of par value. The net proceeds to the Company
from the sale of the Debt Securities (after deducting estimated expenses) were
approximately $2,474,000,000.
Item 7. Financial Statements and Exhibits.
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(c) Exhibits. The following exhibits are filed as part of this report:
Number Description
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1.1 Underwriting Agreement, relating to the Common Stock, dated as of
November 23, 1998, by and among the Company, Goldman, Sachs & Co.
and Salomon Smith Barney Inc.
1.2 Underwriting Agreement, relating to the ACES, dated as of
November 23, 1998, by and among the Company, Goldman, Sachs & Co.
and Salomon Smith Barney Inc.
4.1 Indenture, providing for Issuance of Subordinated Debt Securities
in Series, dated as of November 30, 1998, by and between the
Company and The First National Bank of Chicago, as Trustee.
4.2 Master Unit Agreement, dated as of November 30, 1998, by and
between the Company and The First National Bank of Chicago, as
Unit Agent.
4.3 Call Option Agreement, dated as of November 30, 1998, by and
between Goldman, Sachs & Co., as Call Option Holder, and The
First National Bank of Chicago, as Unit Agent and as Attorney-In-
Fact.
4.4 Pledge Agreement, dated as of November 30, 1998, by and among the
Company, Goldman, Sachs & Co., as Call Option Holder, First Union
National Bank, as Collateral Agent and Securities Intermediary,
and The First National Bank of Chicago, as Unit Agent and as
Attorney-In-Fact.
4.5 Form of Certificate for the Company's 5.95% Junior Subordinated
Deferrable Debentures due November 30, 2003.
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4.6 Form of Certificate for the Company's 6.50% Adjustable
Conversion-rate Equity Security Units.
4.7 Indenture, providing for Issuance of Debt Securities in Series,
dated as of December 1, 1998, by and between the Company and The
Bank of New York, as trustee.
4.8 Officers' Certificate, dated December 9, 1998, establishing the
terms of the Company's 5.375% Notes due 2001, 5.750% Notes due
2005, 5.875% Notes due 2008, 6.500% Debentures due 2018 and
6.600% Debentures due 2028.
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Date: December 14, 1998 MONSANTO COMPANY
By: /s/ Juanita H. Hinshaw
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Title: Vice President & Treasurer
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EXHIBIT INDEX
Exhibit
Number Description
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1.1 Underwriting Agreement, relating to the Common Stock, dated as of
November 23, 1998, by and among the Company, Goldman, Sachs & Co. and
Salomon Smith Barney Inc.
1.2 Underwriting Agreement, relating to the ACES, dated as of November 23,
1998, by and among the Company, Goldman, Sachs & Co. and Salomon Smith
Barney Inc.
4.1 Indenture, providing for Issuance of Subordinated Debt Securities in
Series, dated as of November 30, 1998, by and between the Company and
The First National Bank of Chicago, as Trustee.
4.2 Master Unit Agreement, dated as of November 30, 1998, by and between
the Company and The First National Bank of Chicago, as Unit Agent.
4.3 Call Option Agreement, dated as of November 30, 1998, by and between
Goldman, Sachs & Co., as Call Option Holder, and The First National
Bank of Chicago, as Unit Agent and as Attorney-In-Fact.
4.4 Pledge Agreement, dated as of November 30, 1998, by and among the
Company, Goldman, Sachs & Co., as Call Option Holder, First Union
National Bank, as Collateral Agent and Securities Intermediary, and
The First National Bank of Chicago, as Unit Agent and as Attorney-In-
Fact.
4.5 Form of Certificate for the Company's 5.95% Junior Subordinated
Deferrable Debentures due November 30, 2003.
4.6 Form of Certificate for the Company's 6.50% Adjustable Conversion-rate
Equity Security Units.
4.7 Indenture, providing for Issuance of Debt Securities in Series, dated
as of December 1, 1998, by and between the Company and The Bank of New
York, as trustee.
4.8 Officers' Certificate, dated December 9, 1998, establishing the terms
of the Company's 5.375% Notes due 2001, 5.750% Notes due 2005, 5.875%
Notes due 2008, 6.500% Debentures due 2018 and 6.600% Debentures due
2028.
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EXHIBIT 1.1
MONSANTO COMPANY
COMMON STOCK
UNDERWRITING AGREEMENT
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November 23, 1998
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.
As Representatives of the several
Underwriters named in Schedule I
hereto
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Monsanto Company, a Delaware corporation (the "Company"), proposes, subject
to the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of 22,500,000
common shares (the "Firm Shares") and, at the election of the Underwriters, up
to 2,456,250 additional shares (the "Optional Shares") of the common stock (the
"Common Stock") of the Company. The Firm Shares and the Optional Shares that the
Underwriters elect to purchase pursuant to Section 2 hereof being collectively
called the "Shares".
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-51919) (the
"Initial Registration Statement") in respect of the Shares has been filed with
the Securities and Exchange Commission (the "Commission"); the Initial
Registration Statement and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to you and, excluding exhibits to
the Initial Registration Statement, but including all documents incorporated by
reference in the prospectus contained therein, delivered to you 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) under
the Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, the documents incorporated by reference therein, any post-effective
amendment thereto and any preliminary prospectus filed pursuant to Rule 424(b),
no other document with respect to the Initial Registration Statement has
heretofore been filed or transmitted for filing with the Commission; and no stop
order suspending the effectiveness of the Initial 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 the
Initial Registration Statement or filed with the Commission pursuant to Rule
424(b) of the rules and regulations of the Commission under the Act, is
hereinafter called a "Preliminary
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Prospectus," the various parts of the Initial Registration Statement, any post-
effective amendment thereto and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including all information contained in any
Preliminary Prospectus or in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such final
prospectus relating to the Shares, in the form first filed pursuant to Rule
424(b) under the Act, is 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 Item 12 of
Form S-3 under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; and any reference to any 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 Prospectus, as the case may be; any reference to any amendment to
the Initial Registration Statement shall be deemed to refer to and 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 Initial 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 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) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did 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, in the light of the circumstances under which they were
made, 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 through you expressly for use therein;
(c) 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 or any
further amendment or supplement thereto, 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
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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 through
you expressly for use therein;
(d) 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 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 through you expressly for use therein;
(e) 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;
(f) 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;
(g) 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, 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;
(h) The Shares to be issued and sold by the Company to the Underwriters
hereunder have been duly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly issued and fully
paid and non-assessable and will conform to the description thereof in the
Prospectus as amended or supplemented;
(i) The issue and sale of the Shares and the compliance by the Company
with all of the provisions of this Agreement and the consummation by the Company
of the transactions herein 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
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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, or 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 Shares
or the legal authority of the Company to comply with the Shares; 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 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 (except to the extent that the issue and sale of the
Securities as contemplated by this Agreement and the distribution of the Shares
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 such 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 Shares or the consummation by
the Company of the transaction contemplated by this Agreement, except such as
have been, or will have been prior to the Time of Delivery, obtained under the
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 Shares as contemplated by
this Agreement and the distribution of the Shares by the Underwriters;
(j) 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 the Company's knowledge, no such proceedings are
contemplated by governmental authorities;
(k) 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; and
(l) The Company has developed and initiated a comprehensive Year 2000
Program which is designed to ensure that its business will not be adversely
affected by the Year 2000 computer problem. The Year 2000 Program consists of
remediation efforts with respect to the Company's internal systems, a survey and
review of its suppliers' Year 2000 programs and institution of appropriate
contingency plans. The Company expects its internal systems to be Year 2000
compliant and to have its contingency plans in place by the third quarter of
1999. In addition, the statements contained in the Prospectus under "III. Year
2000 Update" and in the Company's Quarterly Report on Form 10-Q for the period
ended September 30, 1998 pertaining to the Year 2000 Program, are accurate and
complete statements of the information set forth therein.
2. Subject to the terms and conditions herein set forth, (a) 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
a purchase price per share of $38.80, the number of Firm Shares
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set forth opposite the name of such Underwriter in Schedule I hereto and (b) in
the event and to the extent that the Underwriters shall exercise the election to
purchase Optional Shares as provided below, 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 purchase price per share set
forth in clause (a) of this Section 2, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying the
aggregate number of Optional Shares the Underwriters elect to purchase by a
fraction, the numerator of which is the maximum number of Optional Shares which
such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I hereto and the denominator of which is the maximum
number of Optional Shares that all of the Underwriters are entitled to purchase
hereunder.
The Company hereby grants to the Underwriters the right to purchase at their
election up to 2,456,250 Optional Shares, at the purchase price per share set
forth in the paragraph above, for the sole purpose of covering overallotments in
the sale of the Firm Shares. Any such election to purchase Optional Shares may
be exercised only by written notice from you to the Company, given within a
period of 30 calendar days after the date of this Agreement, setting forth the
aggregate number of Optional Shares to be purchased and the date on which such
Optional Shares are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery (as defined in Section 4(a) hereof) or,
unless you and the Company otherwise agree in writing, earlier than two or later
than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale to the public
upon the terms and conditions set forth in the Prospectus as amended or
supplemented.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Goldman, Sachs & Co. may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the Company to
Goldman, Sachs & Co., through the facilities of the Depository Trust Company
("DTC") for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to Goldman, Sachs & Co.
at least forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking at least twenty-four
hours prior to the Time of Delivery (as defined below) at the office of DTC or
its designated custodian (the "Designated Office"). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New
York City time, on November 30, 1998 or such other time and date as Goldman,
Sachs & Co. and the Company may agree upon in writing, and, with respect to the
Optional Shares, 9:30 a.m., New York time, on the date specified by Goldman,
Sachs & Co. in the written notice given by Goldman, Sachs & Co. of the
Underwriters' election to purchase such Optional Shares, or such other time and
date as Goldman, Sachs & Co. and the Company may agree upon in writing. Such
time and date for delivery of the Firm Shares is herein called the "First Time
of Delivery", such time and date for delivery of the Optional Shares, if not the
First Time of Delivery, is herein called the "Second Time of Delivery", and each
such time and date for delivery is herein called a "Time of Delivery";
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(h) hereof, will be delivered at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004 (the "Closing
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Location"), and the Shares will be delivered at the Designated Office, all at
each Time of Delivery. A meeting will be held at the Closing Location at 1:00
p.m., New York City time, on the New York Business Day next preceding each Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended or supplemented in relation to
the applicable Shares in a form approved by you 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 this
Agreement or, if applicable, such earlier time as may be required by Rule 424(b)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus as amended or supplemented after the date
of this Agreement and prior to the last Time of Delivery which shall be
disapproved by you promptly after reasonable notice thereof; to advise you
promptly of any such amendment or supplement after such Time of Delivery and
furnish you 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
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares, and during such same period to advise you,
promptly after it receives notice thereof, 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, 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 Shares, of the suspension of the qualification of
the Shares 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 Shares or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Shares for offering and sale under the securities laws of
such United States jurisdictions as you 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
the Shares, 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 this
Agreement shall be at your expense;
(c) No later than 5:00 p.m. on the New York business day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus as amended or supplemented in such quantities as
you 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 time of issue of the Prospectus in connection with the offering or sale of
the Shares 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
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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 or the Exchange Act, to notify you and upon your 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 the
Shares as many copies as you 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 in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense such Underwriters or such other brokers, as the
case may be, to prepare and deliver to such Underwriter or such other broker-
dealer as many copies as you 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) under the Act), an
earnings 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 this Agreement and
continuing to and including the date 90 days after the date of the Prospectus,
not to offer, sell, contract to sell or otherwise dispose of any securities of
the Company that are substantially similar to the Shares, including but not
limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, Shares or any substantially similar securities
(other than securities issued (i) in the Financings (as defined in the
Prospectus Supplement); (ii) pursuant to the merger of the Company with Delta
and Pine Land Company; (iii) pursuant to employee stock option plans existing
on; or (iv) upon the conversion or exchange of convertible or exchangeable
securities outstanding as of the date of this Agreement), without your prior
written consent; 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 Shares 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 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 Shares; (ii) the cost of producing and copying any Agreement among
Underwriters, this Agreement, any Blue Sky Memoranda, and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees (not to exceed $2,000 per fiscal year of the Company) and
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disbursements of counsel for the Underwriters in connection with such
qualifications and in connection with the Blue Sky and legal investment surveys;
(iv) all fees and expenses in connection with listing the Shares on the New York
Stock Exchange; (v) the cost of preparing stock certificates; and (vi) all other
costs and expenses incident to the performance of the Company's obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 8
and 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
Shares by them, and any advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters hereunder as to the Shares to be
delivered at each Time of Delivery shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company herein are, at and as of such Time of Delivery, 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 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 this 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 your reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to you such
opinion or opinions, dated as of such Time of Delivery, with respect to the
incorporation of the Company, the validity of the Shares, the Registration
Statement, the Prospectus as amended or supplemented and such other related
matters as you 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) Winston & Strawn and the General Counsel or other counsel of the
Company satisfactory to you shall have furnished to you their written
opinions, dated as of such Time of Delivery, in form and substance
satisfactory to you, 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;
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(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 1(g) 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 has been duly authorized, executed and
delivered by the Company;
(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 Shares conform to the description thereof in the
Prospectus as amended or supplemented;
(viii) The issue and sale of the Shares and the compliance by the
Company with all of the provisions of this Agreement and the
consummation by the Company 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 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
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<PAGE>
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 Shares or the legal authority of the Company to comply with the
Shares or this 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 (except to the
extent that the issue and sale of the Shares as contemplated by this
Agreement and the distribution of the Shares 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 such 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 Shares of the
Company or the consummation by the Company of the other transactions
contemplated by this Agreement, except such as have been obtained
under the 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 Shares by the Underwriters;
(ix) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial 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 the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(x) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto
made by the Company prior to such Time of
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Delivery (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 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 or incorporated
by reference in the Registration Statement, the Prospectus or the
Prospectus as amended or supplemented, other than those mentioned in
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 prior
to such 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 such Time of Delivery for the Shares (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
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 by reference into 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 your counsel)
satisfactory in form and scope to your counsel.
(d) At each Time of Delivery, Deloitte & Touche LLP shall have
furnished you a letter dated such Time of Delivery, to the effect set forth
in Annex I hereto, and
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<PAGE>
as to such other matters as you may reasonably request and in form and
substance satisfactory to you;
(e) Since the respective dates as of which information is given in
the Prospectus as amended or supplemented prior to the date of this
Agreement, 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 this Agreement) 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 Prospectus as amended or supplemented prior to the date
of this Agreement, the effect of which is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of Shares on the terms and in the
manner contemplated in the Prospectus as amended or supplemented in
connection with the Shares;
(f) On or after the date of this Agreement relating to the Shares 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 Ratings Group, Moody's Investment Services, Inc. and Duff
& Phelps LLC;
(g) On or after the date of this Agreement there shall not have
occurred any of the following events the effect of which is in your
reasonable judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of Shares
on the terms and in the manner contemplated in the Prospectus as amended or
supplemented in connection with the Shares: (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 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) The Company shall have furnished or caused to be furnished to you
at each Time of Delivery a certificate or certificates of officers of the
Company satisfactory to you 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 you a
certificate of officers of the Company satisfactory to you as to the
matters set forth in subsection (a) of this Section; and
(i) 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
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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 Shares, 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 Shares, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
expressly for use in the Prospectus as amended or supplemented relating to such
Shares; provided, further, that if any Preliminary Prospectus, any preliminary
prospectus supplement relating to the Shares, the Prospectus, the Prospectus as
amended or supplemented or any other prospectus relating to the Shares 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 Shares, the Prospectus, the Prospectus as amended or supplemented, any other
prospectus relating to the Shares or any amendment or supplement thereto
relating to the Shares, 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 Shares 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
Shares (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 Shares (excluding documents incorporated by
reference) or any amendment or supplement thereto relating to the Shares
(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 Shares
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)(2) of the Act by reason of the fact that such
Underwriter sold Shares to a person to whom there was not sent or
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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 Shares (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.
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
Shares (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 Shares, 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 Shares, 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 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
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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
Shares on the other from the offering of the Shares 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 Shares on the
other in connection with the statements or omissions 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 contributions 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 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 Shares 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 Shares in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Shares 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,
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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
Shares which it has agreed to purchase under this Agreement, you may in your
discretion arrange for you or another party or other parties to purchase such
Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter, you do not arrange for the purchase of such Shares,
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 you to
purchase such Shares on such terms. In the event that, within the respective
prescribed period, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such Time of Delivery for such Shares 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 to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in your opinion 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 this Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate amount of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate amount of the
Shares, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the amount of Shares which such Underwriter agreed to
purchase under this Agreement and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the amount of Shares which
such Underwriter agreed to purchase under this Agreement) of the Shares 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
Shares of a defaulting Underwriter or Underwriters made by you or the Company as
provided in subsection (a) above, the aggregate amount of Shares which remains
unpurchased exceeds one-eleventh of the aggregate amount of the Shares, as
referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Shares of a defaulting Underwriter or Underwriters, then this
Agreement relating to such Shares 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 Shares.
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<PAGE>
11. If this 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 Shares except as provided in Section 6 and Section 8 hereof; but,
if for any other reason Shares are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Shares, but the Company
shall then be under no further liability to any Underwriter with respect to such
Shares except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
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 you.
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 your address as set forth in this 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 you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
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. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
17
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is 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 your part as to the authority
of the signers thereof.
Very truly yours,
MONSANTO COMPANY
By: /s/ Juanita H. Hinshaw
-----------------------------------
Name: Juanita H. Hinshaw
Title: Vice President and Treasurer
Accepted as of the date hereof:
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
By: /s/ Goldman, Sachs & Co.
------------------------
Goldman, Sachs & Co.
On behalf of each of the Underwriters
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF
OPTIONAL SHARES
TOTAL NUMBER TO BE DELIVERED
OF FIRM SHARES IF MAXIMUM
UNDERWRITER TO BE DELIVERED OPTION EXERCISED
- ----------- --------------- ----------------
<S> <C> <C>
Goldman, Sachs & Co. 8,425,000 919,729
Salomon Smith Barney Inc. 8,425,000 919,729
BancBoston Robertson Stephens Inc. 350,000 38,208
Bear, Stearns & Co. Inc. 350,000 38,208
Deutsche Bank Securities Inc. 350,000 38,208
Donaldson, Lufkin & Jenrette
Securities Corporation 38,208
350,000
A.G. Edwards & Sons, Inc. 350,000 38,208
EVEREN Securities, Inc. 350,000 38,208
Merrill Lynch, Pierce, Fenner &
Smith Incorporated 350,000 38,208
J.P. Morgan Securities, Inc. 350,000 38,208
Morgan Stanley & Co. Incorporated 350,000 38,208
Schroder & Co. Inc. 350,000 38,208
Arnhold and S. Bleichroeder, Inc 225,000 24,563
SG Cowan Securities Corporation 350,000 38,208
Robert W. Baird & Co. Incorporated 225,000 24,563
J.C. Bradford & Co. 225,000 24,563
Gruntal & Co., L.L.C. 225,000 24,563
Edward D. Jones & Co., L.P. 225,000 24,563
McDonald & Company Securities, Inc. 225,000 24,563
Neuberger Berman, LLC 225,000 24,563
Stifel, Nicholaus & Company, -
Incorporated 225,000 24,563
---------- ---------
Total ...................................... 22,500,000 2,456,250
</TABLE>
19
<PAGE>
ANNEX I
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 of the
Underwriters (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 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 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;
(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
1
<PAGE>
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 consolidated condensed 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 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 consolidated
statement of 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, 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
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 such 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.
2
<PAGE>
All references in this Annex I to the Prospectus shall be deemed to refer
to the Prospectus (including the documents incorporated by reference therein) as
defined in the Underwriting Agreement as of the date of the letter delivered on
the date of the Pricing Agreement for purposes of such 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 Securities for purposes of the letter
delivered at the Time of Delivery for such Securities.
3
<PAGE>
EXHIBIT 1.2
MONSANTO COMPANY
6.5% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
(STATED AMOUNT $40 PER UNIT)
UNDERWRITING AGREEMENT
----------------------
November 23, 1998
Goldman, Sachs & Co.,
Salomon Smith Barney Inc.
c/o Goldman, Sachs & Co.,
85 Broad Street,
New York, New York 10004.
Ladies and Gentlemen:
Monsanto Company, a Delaware corporation (the "Company") proposes, subject
to the terms and conditions stated herein, to enter into the Purchase Contracts
(the "Purchase Contracts") with you on behalf of the Underwriters named in
Schedule I hereto (the "Underwriters"). The Purchase Contracts are evidenced by
the Unit Certificates and are governed by the Master Unit Agreement to be dated
as of November 30, 1998 (the "Master Unit Agreement"), between the Company and
The First National Bank of Chicago, as Master Unit Agent (the "Unit Agent"),
underlying an aggregate of 17,500,000 6.5% Adjustable Conversion-rate Equity
Security Units (the "Units"). In connection therewith, the Company proposes,
subject to the terms and conditions stated herein, that the Company issue and
sell to the Underwriters an aggregate of $700,000,000 principal amount of the
Company's 5.95% Junior Subordinated Deferrable Debentures (the "Debentures").
Further, in connection therewith, the Underwriters will, on behalf of the
initial holders of the Units (as defined herein), sell Call Options (the "Call
Options") to Goldman, Sachs & Co. (in its capacity as the holder of the Call
Options, the "Call Option Holder") which will entitle the Call Option Holder to
acquire such Debentures on or before the Call Option Expiration Date (as defined
in the Call Option Agreement, dated as of November 30, 1998, between the Call
Option Holder and the Unit Agent (the "Call Option Agreement")) in exchange for
the Aggregate Call Option Exercise Consideration (as defined in the Call Option
Agreement). In connection with the Master Unit Agreement and the Call Options,
pursuant to the Pledge Agreement, to be dated as of November 30, 1998 (the
"Pledge Agreement"), among the Company, the Unit Agent, the Call Option Holder
and First Union National Bank, as collateral agent (the "Collateral Agent"), the
Debentures underlying the Units will be pledged by the Unit Agent on behalf of
the holders of the Units to secure the holders' obligations to the Company and
the Call Option Holder under the Purchase Contract and Call Option,
respectively, underlying such Unit. The rights to purchase newly issued shares
of common stock of the Company (the "Common Stock") under a Purchase Contract,
together with the Debentures securing such Purchase Contract, subject to (a) the
obligations owed to the Company under such Purchase Contract, (b) the
obligations owed to the Call Option Holder under the Call Option relating to
such Debentures and (c) the
1
<PAGE>
pledge arrangements under the Pledge Agreement securing the foregoing
obligations, collectively constitute a Unit provided, however, that after the
Time of Delivery, Pledged Securities may replace the Debentures and shall be
considered part of a Unit. Unless the context otherwise requires, for purposes
of this Agreement, the act of entering into a Purchase Contract underlying a
Unit, purchasing a Debenture underlying a Unit and selling a Call Option with
respect to such Debenture shall be referred to as a "purchase" of such Unit.
Capitalized terms used herein without definition shall be used as defined
in the Master Unit Agreement (as defined herein).
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-51919) (the
"Initial Registration Statement") in respect of the Purchase Contracts, the
shares of Common Stock (the "Shares") to be issued upon settlement of the
Purchase Contracts and the Debentures, has been filed with the Securities
and Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to you, and, excluding exhibits to
the Initial Registration Statement, but including all documents
incorporated by reference in the prospectus contained therein, delivered to
you 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) under the Securities Act of
1933, as amended (the "Act"), which became effective upon filing, the
documents incorporated by reference therein, any post-effective amendment
thereto and any preliminary prospectus filed pursuant to Rule 424(b), no
other document with respect to the Initial Registration Statement has
heretofore been filed or transmitted for filing with the Commission; and no
stop order suspending the effectiveness of the Initial 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 the Initial Registration Statement or
filed with the Commission pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial Registration
Statement, any post-effective amendment thereto and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and
including all information contained in any Preliminary Prospectus or in the
form of final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and deemed by virtue
of Rule 430A under the Act to be part of the Initial Registration Statement
at the time it was declared effective and the documents incorporated by
reference in the prospectus contained in the Initial Registration Statement
at the time such part of the Initial Registration Statement became
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; and such
final prospectus relating to the Units, in the form first filed pursuant to
Rule 424(b) under the Act, is hereinafter called the Prospectus; any
reference herein to any Preliminary Prospectus or the Prospectus shall be
2
<PAGE>
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of
such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any 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 Prospectus, as the case may be; any reference to any
amendment to the Initial Registration Statement shall be deemed to refer to
and 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 Initial
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 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) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of
the Commission thereunder, and did 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, in the light of the
circumstances under which they were made, 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 through
you expressly for use therein;
(c) 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 or any further amendment or supplement thereto,
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 through you expressly for use therein;
(d) 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 1939, 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
3
<PAGE>
conformity with information furnished in writing to the Company by an
Underwriter through you expressly for use therein;
(e) 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;
(f) 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;
(g) 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, 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;
(h) The Debentures have been duly and validly authorized by the
Company, and, when issued and delivered pursuant to this Agreement, 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 to be dated as of November 30, 1998
(the "Indenture") between the Company and The First National Bank of
Chicago, as Trustee (the "Trustee"), under which they are to be issued,
which will be substantially in the form filed as an exhibit to the
Registration Statement delivered to you; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and, at the
Time of Delivery for such Debentures, the Indenture will constitute a valid
and legally binding instrument, enforceable in accordance with its terms,
except as the same may be limited by bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Debentures and the
Indenture will conform to the descriptions thereof contained in the
Prospectus as amended or supplemented with respect to such Debentures;
(i) The Shares to be issued and sold by the Company pursuant to
the Purchase Contracts and the Master Unit Agreement have been duly
authorized and reserved for
4
<PAGE>
issuance and, when issued and delivered against payment therefor as
provided in the Purchase Contracts and the Master Unit Agreement, will be
validly issued and fully paid and non-assessable and currently conform to
the description of the thereof incorporated by reference in the Prospectus;
(j) The entry into the Purchase Contracts by the Company, the
issue and sale of the Debentures by the Company, the issue and sale of the
Shares by the Company pursuant to the Purchase Contracts, the compliance by
the Company with the provisions of this Agreement, such Purchase Contracts,
the Master Unit Agreement, the Pledge Agreement and the Indenture and the
consummation by the Company 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,
or 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 Units or the legal authority of the Company to
comply with the Units; 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 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 (except to the extent that the issue and
sale of the Units as contemplated by this Agreement and the distribution of
the Units 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 such court or any such
regulatory authority or other governmental body in the United States having
jurisdiction over the Company is required for the entry into the Purchase
Contracts by the Company, the issue and sale of the Debentures by the
Company, the issue and sale of the Shares by the Company pursuant to the
Purchase Contracts, the compliance by the Company with all of the
provisions of this Agreement, such Purchase Contracts, the Master Unit
Agreement, the Pledge Agreement, or the Indenture or the consummation of
the transactions herein or therein contemplated, except (i) the
registration under the Act of the Units, the Debentures and the Shares to
be issued upon settlement of the Purchase Contracts, (ii) the approval and
registration of the Units with the New York Stock Exchange; (iii) such
consents as have been obtained under the Trust Indenture Act; and (iv) such
consents as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Units by the
Underwriters;
(k) The Purchase Contracts, which Purchase Contracts are
evidenced by the Unit Certificates, have been duly and validly authorized
by the Company and, when executed by the other parties thereto, will
constitute valid and binding obligations, enforceable in accordance with
their terms, subject, as the enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting
5
<PAGE>
creditors' rights and to general equity principles; and the Purchase
Contracts will conform to the descriptions thereof in the Prospectus as
amended or supplemented;
(l) The Master Unit Agreement and the Pledge Agreement, have been
duly and validly authorized by the Company and, when executed and delivered
by the other parties thereto, will constitute valid and binding
instruments, enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; the Master Unit Agreement and the Pledge
Agreement conform or will conform to the descriptions thereof in the
Prospectus as amended or supplemented; and the Pledge Agreement creates, as
collateral security for the performance when due by the holders from time
to time of the Units of their respective obligations under the Purchase
Contracts and Call Options constituting part of such Units, a legal, valid
and perfected security interest (as that term is defined in the Uniform
Commercial Code, as adopted and currently in effect in the State of New
York), in favor of the Collateral Agent, in the right, title and interest
of such holders in the Pledged Securities (as defined in the Pledge
Agreement) constituting a part of such Units;
(m) 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 the Company's
knowledge, no such proceedings are contemplated by governmental
authorities;
(n) 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; and
(o) The Company has developed and initiated a comprehensive Year
2000 Program which is designed to ensure that its business will not be
adversely affected by the Year 2000 computer problem. The Year 2000
Program consists of remediation efforts with respect to the Company's
internal systems, a survey and review of its suppliers' Year 2000 programs
and institution of appropriate contingency plans. The Company expects its
internal systems to be Year 2000 compliant and to have its contingency
plans in place by the third quarter of 1999. In addition, the statements
contained in the Prospectus under "III. Year 2000 Update" and in the
Company's Quarterly Report on Form 10-Q for the period ended September 30,
1998 pertaining to the Year 2000 program, are accurate and complete
statements of the information set forth therein.
2. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Underwriters, severally and not jointly, agree to enter into the
Purchase Contracts underlying the number of Units set forth opposite the name of
such Underwriter in Schedule I hereto, and (b) the Company agrees that the
Company will issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price of 97.25% of the principal amount thereof, the principal amount
of Debentures underlying the number of Units set forth opposite the name of such
Underwriter in Schedule I hereto.
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The Underwriters agree to pledge to the Collateral Agent, on behalf of the
initial purchasers of the Units, the Debentures underlying the Units. Such
pledge shall be effected by the delivery to the Collateral Agent in New York by
the Underwriters of the Debentures to be pledged at the Time of Delivery (as
defined below) in accordance with the Pledge Agreement.
The Underwriters further agree to sell, on behalf of the initial purchasers
of the Units, to the Call Option Holder a Call Option with respect to each
Debenture underlying the Units at a purchase price of $.10 per Call Option at
the Time of Delivery.
3. Upon the authorization by you of the release of the Units, the several
Underwriters propose to offer the Units for sale to the public upon the terms
and conditions set forth in the Prospectus as amended or supplemented.
4. (a) The Units to be purchased by each Underwriter hereunder will be
represented by one or more definitive global Units in book-entry form which will
be deposited by or on behalf of the Company with The Depository Trust Company
("DTC") or its designated custodian and delivered to Goldman, Sachs & Co., for
the account of each Underwriter, upon at least forty-eight hours' prior notice
to the Company by Goldman Sachs & Co. and against payment by or on behalf of
such Underwriter of the purchase price therefor by transfer of Federal (same
day) funds to the account designated by the Company and delivery to the
Collateral Agent of the Debentures relating to such Units at least forty-eight
hours in advance. The Company will cause the certificates representing the Units
to be made available for checking at least twenty-four hours prior to the Time
of Delivery (as defined below) at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be, with respect to the Units, 9:30 a.m., New York time, on November 30, 1998 or
such other time and date as Goldman, Sachs & Co. and the Company may agree upon
in writing. Such time and date for delivery of the Units is herein called the
"Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross-
receipt for the Units and any additional documents requested by the Underwriters
pursuant to Section 7(i) hereof, will be delivered at the offices of Sullivan &
Cromwell, 125 Broad Street, New York, New York 10004 (the "Closing Location"),
and the Units will be delivered at the Designated Office, all at the Time of
Delivery. A meeting will be held at the Closing Location at 1:00 p.m., New York
City time, on the New York Business Day next preceding the Time of Delivery, at
which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus as amended or supplemented in relation to
the Units in a form approved by you 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 this Agreement or,
if applicable, such earlier time as may be required by Rule 424(b) under the
Act; to make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of this
Agreement and prior to the Time of Delivery which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly of any such
amendment or supplement after the Time of Delivery and
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furnish you 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
so long as the delivery of a prospectus is required in connection with the
offering or sale of the Units and during such same period to advise you,
promptly after it receives notice thereof, 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, 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 Units, of the suspension of the qualification of
the Units 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 Units or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Units for offering and sale under the securities laws of
such United States jurisdictions as you 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
the Units, 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 this
Agreement shall be at your expense;
(c) No later than 5:00 p.m. on the New York business day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus, as amended or supplemented in such quantities as
you 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 time of issue of the Prospectus in connection with the offering or sale of
the Units 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 you and upon your 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 the
Units as many copies as you 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 in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense such Underwriters or such other brokers, as the
case may be, to prepare and deliver to such Underwriter or such other broker-
dealer as many copies as you 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) under the Act), an
earnings statement of the Company and its
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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 this Agreement and
continuing to and including the date 90 days after the date of the Prospectus,
not to offer, sell, contract to sell or otherwise dispose of any Units,
Debentures or Common Stock or securities of the Company that are substantially
similar to the Units, Debentures or Common Stock, including but not limited to
any securities that are convertible into or exchangeable for, or that represent
the right to receive, Common Stock or any such substantially similar securities
(other than securities issued (i) in the Financings (as defined in the
Prospectus Supplement); (ii) pursuant to the merger of the Company with Delta
and Pine Land Company; (iii) pursuant to employee stock option plans existing
on; or (iv) upon the conversion or exchange of convertible or exchangeable
securities outstanding as of the date of this Agreement), without your prior
written consent; and
(f) To use their best efforts to list, subject to notice of issuance, the
Units on the New York Stock Exchange (the "Exchange").
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 Units 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 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 Units; (ii) the cost of
producing and copying any Agreement among Underwriters, this Agreement, any Blue
Sky Memoranda and any other documents in connection with the offering, purchase,
sale and delivery of the Units; (iii) all expenses in connection with the
qualification of the Units for offering and sale under state securities laws as
provided in Section 5(b) hereof, including the fees (not to exceed $2,000 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) all fees and expenses in connection with listing
the Units on the Exchange; (v) any fees charged by securities rating services
for rating the Units; (vi) the cost of preparing the Units, the Debentures and
any Shares; (vii) the fees and expenses of the Unit Agent, Collateral Agent and
Debenture Trustee and any agent of the Unit Agent, Collateral Agent and
Debenture Trustee and the fees and disbursements of any counsel for the Unit
Agent, Collateral Agent or Trustee in connection with the Master Unit Agreement,
the Pledge Agreement, the Call Option Agreement, the Indenture and the
Debentures, as the case may be; and (viii) all other costs and expenses incident
to the performance of the Company's obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 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 Units by them, and any
advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Units to be
delivered at the Time of Delivery, shall be subject, in their discretion, to the
condition that all representations and warranties and other statements of the
Company herein are, at and as of the Time of Delivery, 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:
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(a) The Prospectus as amended or supplemented 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 this 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 your reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to you such
opinion or opinions, dated as of the Time of Delivery, with respect to the
incorporation of the Company, the validity of the Units, the Registration
Statement, the Prospectus as amended or supplemented and such other related
matters as you 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) Winston & Strawn and the General Counsel or other counsel of
the Company satisfactory to you shall have furnished to you their written
opinions, dated as of the Time of Delivery, in form and substance
satisfactory to you, 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 1(g) 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) The Shares to be issued and sold by the Company
pursuant to the Purchase Contracts and the Master Unit Agreement have
been duly authorized and reserved for issuance and, when issued and
delivered against payment therefor as provided in the Purchase
Contracts and the Master Unit Agreement, will be duly and
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validly issued, fully paid and non-assessable and currently conform to
the description of the Common Stock in the Prospectus;
(vi) This Agreement has been duly authorized, executed and
delivered by the Company;
(vii) 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;
(viii) Each of the Master Unit Agreement, the Purchase
Contracts which are evidenced by the Unit Certificates, being
delivered at the Time of Delivery and the Pledge Agreement has been
duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the other parties
thereto, constitutes a valid and legally binding obligation of the
Company (and together they create, to the extent provided therein, a
valid interest of the holders of the Units in the Debentures)
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles, provided, however, that the rights and
remedies of the Unit Agent and the Collateral Agent provided in
Sections 402 and 510 of the Master Unit Agreement and Section 5(a) of
the Pledge Agreement upon the occurrence of a Termination Event will
not be limited under the Bankruptcy Code (11 U.S.C. 101 et seq.)
because Section 365(e)(2) thereof should permit such termination
provisions to be enforced; the Pledge Agreement creates, as collateral
security for the performance when due by the holders from time to time
of the Units of their respective obligations under the Purchase
Contracts and Call Options constituting part of such Units, a valid
security interest (as that term is defined in the Uniform Commercial
Code, as adopted and then in effect in the State of New York (the "New
York UCC")), in favor of the Collateral Agent, in the right, title and
interest of such holders in the Pledged Securities (as defined in the
Pledge Agreement) constituting a part of such Units; and, in the case
of Pledged Securities that are certificated or in the form of
instruments (as defined in the New York UCC), such security interest
shall be perfected upon the delivery of such certificates or
instruments to the Collateral Agent, with accompanying stock or note
powers duly executed in blank or in favor of the Collateral Agent,
and, in the case of Pledged Securities that are credited by a
securities intermediary (as defined in the New York UCC) to a
securities account (as defined in the New York UCC) in the name of the
Collateral Agent, the Collateral Agent shall have a perfected security
interest in all securities entitlements (as defined in the New York
UCC) relating to such Pledged Securities; the Master Unit Agreement,
the Pledge Agreement and the Purchase Contracts conform to the
descriptions thereof in the Prospectus as amended or supplemented;
(ix) The Debentures underlying the Units 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
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on the Debentures and that the Debentures have been duly authenticated
by the Trustee under the Indenture (which assumptions such counsel
need not verify by an inspection of the Debentures underlying the
Units), the Debentures 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 Debentures and the Indenture conform to the descriptions thereof
in the Prospectus as amended or supplemented;
(x) 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 laws of general applicability relating to or
affecting of creditors' rights and to general equity principles; the
Indenture has been duly qualified under the Trust Indenture Act; and
no taxes or recording fees under Delaware or Federal law are required
to be paid with respect to the execution of the Indenture and the
issuance of the Debentures underlying the Units;
(xi) The entry into the Purchase Contracts by the Company,
the issue and sale of the Debentures by the Company, the issue and
sale of the Shares by the Company pursuant to the Purchase Contracts,
the compliance by the Company with all of the provisions of this
Agreement, such Purchase Contracts, the Master Unit Agreement, the
Pledge Agreement, and the Indenture and the consummation by the
Company 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
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 Units or the legal authority of the
Company to comply with the Units or this 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 (except to the extent that the issue and sale of
the Units as contemplated by this Agreement and the distribution of
the Units 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 such court,
regulatory authority or other governmental body in the United States
having jurisdiction over the Company is required for the entry into
the Purchase Contracts underlying the Units by the Company, the issue
and sale of the Debentures underlying the Units by the Company, the
issue and sale of the Shares
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by the Company pursuant to the Purchase Contracts, the compliance by
the Company with all of the provisions of this Agreement, such
Purchase Contracts, the Master Unit Agreement, the Pledge Agreement or
the Indenture or the consummation by the Company of the transactions
herein or therein contemplated, except for (A) the registration under
the Act of the Securities, the Debentures and the Shares to be issued
upon settlement of the Purchase Contracts, (B) the approval and
registration of the Units with the Exchange, which has been obtained,
(C) such consents as have been obtained under the Trust Indenture Act,
and (D) such consents as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the
Units by the Underwriters;
(xii) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the financial
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 the light of the circumstances under which they
were made when such documents were so filed, not misleading; and
(xiii) 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 (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 or
incorporated by reference in the Registration Statement, the
Prospectus or the Prospectus as amended or supplemented, other than
those mentioned in the last clause of subparagraph (ix) 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 prior to the Time of
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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 Units (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
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 by reference into 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 your counsel)
satisfactory in form and scope to your counsel.
(d) Arnold & Porter, special tax counsel for the Company, shall
have furnished to you their written opinion, dated the Time of Delivery, in
form and substance satisfactory to you, to the effect that the discussion
set forth in the Prospectus under the heading "Certain Federal Income Tax
Consequences", insofar as it relates to matters of United States federal
income tax law, is accurate in all material respects;
(e) At the Time of Delivery, Deloitte & Touche LLP shall have
furnished you a letter dated the Time of Delivery, to the effect set forth
in Annex I hereto, and as to such other matters as you may reasonably
request and in form and substance satisfactory to you;
(f) Since the respective dates as of which information is given
in the Prospectus as amended or supplemented prior to the date of this
Agreement, 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 this Agreement) 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 Prospectus as amended or supplemented prior to the date
of this Agreement, the effect of which is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of Units on the terms and in the
manner contemplated in the Prospectus as amended or supplemented in
connection with the Units;
(g) On or after the date of this Agreement relating to the Units,
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 Ratings Group, Moody's Investment
Services, Inc. and Duff & Phelps LLC;
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(h) On or after the date of this Agreement there shall not have
occurred any of the following events the effect of which is in your
reasonable judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of Shares
on the terms and in the manner contemplated in the Prospectus as amended or
supplemented in connection with the Shares: (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 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;
(i) The Company shall have furnished or caused to be furnished to
you at the Time of Delivery a certificate or certificates of officers of
the Company satisfactory to you as to the accuracy in all material respects
of the representations and warranties of the Company herein at and as of
the 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 the Time of Delivery, and the Company also shall have furnished to
you a certificate of officers of the Company satisfactory to you as to the
matters set forth in subsection (a) of this Section;
(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; and
(k) The Units shall have been duly listed, subject to notice of
issuance, on the Exchange.
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 Units, 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 such Units or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by any Underwriter expressly for use in the
Prospectus as amended or supplemented relating to such Units; provided, further,
that, if any Preliminary Prospectus, any preliminary prospectus supplement
relating to the Units, the Prospectus, the Prospectus as amended or supplemented
or any other prospectus relating to the Units 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
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omission shall have been corrected in a revised Preliminary Prospectus,
preliminary prospectus supplement relating to the Units, the Prospectus, the
Prospectus as amended or supplemented, any other prospectus relating to the
Units or any amendment or supplement thereto relating to the Units, 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 Units 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 Units (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 Units
(excluding documents incorporated by reference) or any amendment or supplement
thereto relating to the Units (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 Units 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)(2) of the Act by reason of the fact that such
Underwriter sold Units 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 Units (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.
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 Units
(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
16
<PAGE>
contained in any Preliminary Prospectus, any preliminary prospectus supplement,
the Registration Statement, the Prospectus as amended or supplemented and any
other prospectus relating to such Units, 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 such Units, 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 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
Units on the other from the offering of the Units 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 Units on the
other in connection with the statements or omissions 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
17
<PAGE>
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 contributions 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
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 Units
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 Units in this subsection (d) to contribute
are several in proportion to their respective underwriting obligations with
respect to such Units 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
Units which it has agreed to purchase under this Agreement, you may in your
discretion arrange for you or another party or other parties to purchase such
Units on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Units,
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 you to
purchase such Units on such terms. In the event that, within the respective
prescribed period, you notify the Company that you have so arranged for the
purchase of such Units, or the Company notifies you that it has so arranged for
the purchase of such Units, you or the Company shall have the right to postpone
the Time of Delivery for such Units 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 to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in your opinion 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 this Agreement.
18
<PAGE>
(b) If, after giving effect to any arrangements for the purchase of the
Units of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate amount of such Units which
remains unpurchased does not exceed one-eleventh of the aggregate amount of the
Units, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the amount of Units which such Underwriter agreed to
purchase under this Agreement and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the amount of Units which
such Underwriter agreed to purchase under this Agreement) 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
Units of a defaulting Underwriter or Underwriters made by you or the Company as
provided in subsection (a) above, the aggregate amount of the Units which
remains unpurchased exceeds one-eleventh of the aggregate amount of the Units as
referred to in subsection (b) above, or if the Company shall not exercise the
right described in subsection (b) above to require non-defaulting Underwriters
to purchase Units of a defaulting Underwriter or Underwriters, then this
Agreement relating to such Units 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 Units.
11. If this 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 Units except as provided in Section 6 and Section 8 hereof; but,
if for any other reason Units are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of such Units, but the Company
shall then be under no further liability to any Underwriter with respect to such
Shares except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
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 you.
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 your address as set forth in this 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
19
<PAGE>
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
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. No purchaser of any of the
Units from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
20
<PAGE>
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is 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 your part as to the authority
of the signers thereof.
Very truly yours,
MONSANTO COMPANY
By: /s/ Juanita H. Hinshaw
---------------------------------------
Name: Juanita H. Hinshaw
Title: Vice President and Treasurer
Accepted as of the date hereof:
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
By: /s/ Goldman, Sachs & Co.
-----------------------------
Goldman, Sachs & Co.
On behalf of each of the Underwriters
<PAGE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------
SCHEDULE I
- ------------------------------------------------------------------
----------------------------------------------------
TOTAL NUMBER
OF UNITS TO BE
UNDERWRITER DELIVERED
----------- ---------
----------------------------------------------------
<S> <C>
Goldman, Sachs & Co. 8,750,000
----------------------------------------------------
Salomon Smith Barney Inc. 8,750,000
----------------------------------------------------
17,500,000
Total
----------------------------------------------------
----------------------------------------------------
</TABLE>
22
<PAGE>
ANNEX I
Pursuant to Section 7(e) 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 of the
Underwriters (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 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 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;
(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
1
<PAGE>
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 consolidated condensed 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 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 consolidated
statement of 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, 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
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 such 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.
2
<PAGE>
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 defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such 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 Units for
purposes of the letter delivered at the Time of Delivery for such Units.
3
<PAGE>
EXHIBIT 4.1
-----------
================================================================================
MONSANTO COMPANY
TO
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
__________
INDENTURE
Dated as of November 30, 1998
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:
<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.................................................... 10
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........................................................ 11
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.................................................. 14
Section 204. Additional Provisions Required in Book-Entry Security........................ 19
Section 205. Form of Trustee's Certificate of Authentication.............................. 19
ARTICLE THREE
The Securities.............................................................................. 20
Section 301. Amount Unlimited; Issuable in Series......................................... 20
Section 302. Denominations................................................................ 22
Section 303. Execution, Authentication, Delivery and Dating............................... 23
Section 304. Temporary Securities......................................................... 25
Section 305. Registration, Registration of Transfer and Exchange.......................... 25
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................................................................. 29
Section 310. Computation of Interest...................................................... 30
Section 311. CUSIP Numbers................................................................ 30
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
ARTICLE FOUR
Satisfaction and Discharge................................................................... 30
Section 401. Satisfaction and Discharge of Indenture...................................... 30
Section 402. Application of Trust Money................................................... 31
ARTICLE FIVE
Remedies..................................................................................... 31
Section 501. Events of Default............................................................ 31
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............................................. 34
Section 505. Trustee May Enforce Claims Without Possession of Securities.................. 35
Section 506. Application of Money Collected............................................... 35
Section 507. Limitation on Suits.......................................................... 35
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest................................................................. 36
Section 509. Restoration of Rights and Remedies........................................... 36
Section 510. Rights and Remedies Cumulative............................................... 36
Section 511. Delay or Omission Not Waiver................................................. 37
Section 512. Control by Holders........................................................... 37
Section 513. Waiver of Past Defaults...................................................... 37
Section 514. Undertaking for Costs........................................................ 38
ARTICLE SIX
The Trustee.................................................................................. 38
Section 601. Certain Duties and Responsibilities.......................................... 38
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.............. 40
Section 606. Money Held in Trust.......................................................... 40
Section 607. Compensation and Reimbursement............................................... 40
Section 608. Disqualification; Conflicting Interests...................................... 41
Section 609. Corporate Trustee Required; Eligibility...................................... 41
Section 610. Resignation and Removal; Appointment of Successor............................ 41
Section 611. Acceptance of Appointment by Successor....................................... 43
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
Section 615. Appointment of Authenticating Agent.......................................... 45
</TABLE>
iv
<PAGE>
<TABLE>
<S> <C>
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................................. 49
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........................... 52
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. Waiver of Certain Covenants.................................................. 55
Section 1008. Compliance Certificate....................................................... 55
ARTICLE ELEVEN
Redemption of Securities..................................................................... 55
Section 1101. Applicability of Article..................................................... 55
Section 1102. Election to Redeem: Notice to Trustee........................................ 56
Section 1103. Selection by Trustee of Securities to Be Redeemed............................ 56
</TABLE>
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<TABLE>
<S> <C>
Section 1104. Notice of Redemption......................................................... 57
Section 1105. Deposit of Redemption Price.................................................. 57
Section 1106. Securities Payable on Redemption Date........................................ 58
Section 1107. Securities Redeemed in Part.................................................. 58
ARTICLE TWELVE
Sinking Funds................................................................................ 58
Section 1201. Applicability of Article..................................................... 58
Section 1202. Satisfaction of Sinking Fund Payments with Securities........................ 59
Section 1203. Redemption of Securities for Sinking Fund.................................... 59
ARTICLE THIRTEEN
Subordination of Securities.................................................................. 59
Section 1301. Securities Subordinate to Senior Debt........................................ 59
Section 1302. Payment Over of Proceeds Upon Dissolution, Etc............................... 60
Section 1303. No Payment When Senior Debt in Default....................................... 61
Section 1304. Payment Permitted If No Default.............................................. 61
Section 1305. Subrogation to Rights of Holders of Senior Debt.............................. 62
Section 1306. Provisions Solely to Define Relative Rights.................................. 62
Section 1307. Trustee to Effectuate Subordination.......................................... 62
Section 1308. No Waiver of Subordination Provisions........................................ 62
Section 1309. Notice to Trustee............................................................ 63
Section 1310. Reliance on Judicial Order or Certificate of Liquidating Agent............... 63
Section 1311. Trustee Not Fiduciary for Holders of Senior Debt............................. 64
Section 1312. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights............................................. 64
Section 1313. Article Applicable to Paying Agents.......................................... 64
Section 1314. Defeasance of this Article Thirteen.......................................... 64
ARTICLE FOURTEEN
Conversion of Securities..................................................................... 65
Section 1401. Applicability of Article..................................................... 65
Section 1402. Conversion Privilege and Conversion Price.................................... 65
Section 1403. Exercise of Conversion Privilege............................................. 65
Section 1404. Fractions of Shares.......................................................... 66
Section 1405. Adjustment of Conversion Price............................................... 66
Section 1406. Notice of Adjustments of Conversion Price.................................... 70
Section 1407. Notice of Certain Corporate Action........................................... 70
Section 1408. Company to Reserve Common Stock.............................................. 71
Section 1409. Taxes on Conversions......................................................... 71
Section 1410. Covenant as to Common Stock.................................................. 72
</TABLE>
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<TABLE>
<S> <C>
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance........................................................... 73
Section 1501. Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance..................................... 73
Section 1502. Defeasance and Discharge..................................................... 73
Section 1503. Covenant Defeasance.......................................................... 74
Section 1504. Conditions to Defeasance or Covenant Defeasance.............................. 74
Section 1505. Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions............................. 76
Section 1506. Reinstatement................................................................ 77
Section 1507. Qualifying Trustee........................................................... 77
ARTICLE SIXTEEN
Immunity of Incorporators, Stockholders, Officers, Directors and Employees.................. 77
Section 1601. Exemption from Individual Liability.......................................... 77
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
vii
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INDENTURE, dated as of November 30, 1998, 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 First National Bank of
Chicago, 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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(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 One First National Plaza, Suite 0126, Chicago, Illinois, 60670,
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
<PAGE>
"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.
4
<PAGE>
"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
5
<PAGE>
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 officer assigned by the Trustee to administer corporate trust matters and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company that owns
any Operating Property.
6
<PAGE>
"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.
"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.
7
<PAGE>
"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
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
8
<PAGE>
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 or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution
9
<PAGE>
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: Corporate Trust
Administration, 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.
-------------------------
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
10
<PAGE>
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.
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.
11
<PAGE>
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 on which the Securities may be listed, all
as determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
12
<PAGE>
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 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
13
<PAGE>
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:
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 November__, 1998 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
14
<PAGE>
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,
<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 for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after ______________], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ______________ of the years indicated,
15
<PAGE>
<TABLE>
<CAPTION>
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
- ---- ------------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _________% of the principal
amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
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.
[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.]
16
<PAGE>
[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 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
17
<PAGE>
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, 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
18
<PAGE>
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.
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.
19
<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 FIRST NATIONAL BANK OF CHICAGO,
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 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
20
<PAGE>
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 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;
21
<PAGE>
(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 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
22
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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;
23
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(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 Act of 1934 and any other
applicable statute or regulation. The Trustee shall have no responsibility to
24
<PAGE>
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.
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
25
<PAGE>
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
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.
26
<PAGE>
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.
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
27
<PAGE>
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 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
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<PAGE>
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
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.
29
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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.
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
30
<PAGE>
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.
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.
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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 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
32
<PAGE>
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 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
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(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,
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
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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 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;
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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;
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
36
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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.
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
37
<PAGE>
(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 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
38
<PAGE>
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;
(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;
39
<PAGE>
(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.
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<PAGE>
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.
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.
41
<PAGE>
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
42
<PAGE>
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 retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring
43
<PAGE>
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.
44
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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 or banking association
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation or banking association succeeding to all or
substantially all the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation or banking
--------
association 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.
45
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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 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.
46
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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:___________________
THE FIRST NATIONAL BANK OF CHICAGO
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 May ___ and November ___ 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 November ___ or May ___, 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.
47
<PAGE>
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.
48
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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.
49
<PAGE>
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
50
<PAGE>
(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
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<PAGE>
(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.
52
<PAGE>
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
54
<PAGE>
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.
Section 1006. Corporate Existence.
-------------------
55
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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 the Indenture.
56
<PAGE>
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.
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.
57
<PAGE>
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,
(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.
58
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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
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
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
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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 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
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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 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
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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.
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
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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 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.
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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 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
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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.
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.
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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.
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
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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 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
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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) 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
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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 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.
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(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.
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;
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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 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.
------------------------------------
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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 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.
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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 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.
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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 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
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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 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.
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(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 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.
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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.
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. In 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
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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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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: /s/ Juanita H. Hinshaw
------------------------------------
Name: Juanita H. Hinshaw
Title: Vice President and Treasurer
<PAGE>
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Mark J. Frye
-------------------------------
Name: Mark J. Frye
Title: Asst. Vice President
<PAGE>
STATE OF ILLINOIS )
------------ )
COUNTY OF COOK )
------------
On 11-23-98, before me, A. Marsh, Notary Public, personally appeared
Mark J. Frye, 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.
/s/ Anthony Marsh
- ---------------------------------
Notary Public
[SEAL]
<PAGE>
STATE OF MISSOURI )
------------- )
COUNTY OF ST. LOUIS )
-------------
On the 24th day of November, 1998, before me personally came
Juanita H. Hinshaw, to me known, who, being by me duly sworn, did depose and
say that he/she is Vice President & Treasurer of Monsanto Company, 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.
/s/ Karen S. Marschel
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Notary Public
[SEAL]
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EXHIBIT 4.2
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MONSANTO COMPANY
AND
THE FIRST NATIONAL BANK OF CHICAGO,
as Unit Agent
________________
MASTER UNIT AGREEMENT
________________
Dated as of November 30, 1998
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TABLE OF CONTENTS
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RECITALS.................................................................................................. 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions................................................................................. 1
Section 102. Reserved.................................................................................... 9
Section 103. Form of Documents Delivered to Unit Agent .................................................. 10
Section 104. Acts of Holders; Record Dates............................................................... 10
Section 105. Notices, etc. to Unit Agent and the Company................................................. 12
Section 106. Notice to Holders; Waiver................................................................... 12
Section 107. Effect of Headings and Table of Contents.................................................... 13
Section 108. Successors and Assigns...................................................................... 13
Section 109. Separability Clause......................................................................... 13
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
UNIT CERTIICATE FORMS
Section 201. Forms of Unit Certificates Generally....................................................... 14
Section 202. Form of Unit Agent's Certificate of Authentication......................................... 15
ARTICLE THREE
THE UNITS
Section 301. Title and Terms; Denominations............................................................. 15
Section 302. Rights and Obligations Evidenced by the Unit Certificates.................................. 16
Section 303. Execution, Authentication, Delivery and Dating............................................. 16
Section 304. Temporary Unit Certificates................................................................ 17
Section 305. Registration; Registration of Transfer and Exchange........................................ 17
Section 306. Mutilated, Destroyed, Lost and Stolen Unit Certificates.................................... 20
Section 307. Persons Deemed Owners...................................................................... 21
Section 308. Cancellation............................................................................... 21
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Section 309. Substitution of Pledged Securities and Creation of Stripped Units;Units Not Otherwise
Separable.................................................................. 22
Section 310. Payments on the Units..................................................................... 24
ARTICLE FOUR
THE PLEDGED SECURITIES
Section 401. Payments on the Pledged Securities........................................................ 24
Section 402. Transfer of Pledged Securities Upon Occurrence of Termination Event....................... 25
ARTICLE FIVE
THE PURCHASE CONTRACTS
Section 501. Purchase of Shares of Common Stock........................................................ 26
Section 502. Contract Fees............................................................................. 27
Section 503. Deferral of Payment Dates For Contract Fee................................................ 28
Section 504. Payment of Purchase Price................................................................. 29
Section 505. Issuance of Shares of Common Stock........................................................ 31
Section 506. Adjustment of Settlement Rate............................................................. 31
Section 507. Notice of Adjustments and Certain Other Events............................................ 36
Section 508. No Fractional Shares...................................................................... 37
Section 509. Charges and Taxes......................................................................... 38
Section 510. Termination Event; Notice................................................................. 38
Section 511. Early Settlement.......................................................................... 38
ARTICLE SIX
REMEDIES
Section 601. Unconditional Rights of Holders........................................................... 39
Section 602. Restoration of Rights and Remedies........................................................ 39
Section 603. Rights and Remedies Cumulative............................................................ 39
Section 604. Delay or Omission Not Waiver.............................................................. 39
Section 605. Undertaking for Costs..................................................................... 40
Section 606. Waiver of Stay or Extension Laws.......................................................... 40
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ARTICLE SEVEN
THE UNIT AGENT
Section 701. Certain Duties and Responsibilities....................................................... 40
Section 702. Notice of Default......................................................................... 41
Section 703. Certain Rights of Unit Agent.............................................................. 41
Section 704. Not Responsible for Recitals or Issuance of Units......................................... 42
Section 705. May Hold Units............................................................................ 43
Section 706. Money Held in Trust....................................................................... 43
Section 707. Compensation and Reimbursement............................................................ 43
Section 708. Corporate Unit Agent Required; Eligibility................................................ 44
Section 709. Resignation and Removal; Appointment of Successor......................................... 44
Section 710. Acceptance of Appointment by Successor.................................................... 45
Section 711. Merger, Conversion, Consolidation or Succession to Business............................... 46
Section 712. Preservation of Information; Communications to Holders.................................... 46
Section 713. No Obligations of Unit Agent.............................................................. 47
Section 714. Tax Compliance............................................................................ 47
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
Section 801. Supplemental Agreements Without Consent of Holders........................................ 48
Section 802. Supplemental Agreements with Consent of Holders........................................... 48
Section 803. Execution of Supplemental Agreements...................................................... 50
Section 804. Effect of Supplemental Agreements......................................................... 50
Section 805. Reference to Supplemental Agreements...................................................... 50
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 901. Covenant Not to Merge, Consolidate, Sell or Convey Property............................... 51
Except Under Certain Conditions
Section 902. Rights and Duties of Successor Corporation................................................ 51
Section 903. Opinion of Counsel to Unit Agent.......................................................... 52
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ARTICLE TEN
COVENANTS
Section 1001. Performance Under Purchase Contracts..................................................... 52
Section 1002. Maintenance of Office or Agency.......................................................... 53
Section 1003. Company to Reserve Common Stock.......................................................... 53
Section 1004. Covenants as to Common Stock............................................................. 53
Section 1005. Statements of Officers of the Company as to Default...................................... 53
TESTIMONIUM............................................................................................. 54
SIGNATURES.............................................................................................. 54
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EXHIBIT A Form of Normal Unit Certificate
EXHIBIT B Form of Stripped Unit Certificate
EXHIBIT C Form of Call Option Agreement
EXHIBIT D Form of Pledge Agreement
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MASTER UNIT AGREEMENT, dated as of November 30, 1998, between MONSANTO
COMPANY, a Delaware corporation (the "Company"), and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking corporation, acting as unit agent for the Holders of
Units from time to time (the "Unit Agent").
RECITALS
The Company has duly authorized the execution and delivery of this
Agreement and the Unit Certificates evidencing the Units.
All things necessary to make the Company's obligations under the Units,
when the Unit Certificates are executed by the Company and authenticated,
executed on behalf of the Holders and delivered by the Unit 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 Units 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:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular; and
(b) 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 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
<PAGE>
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.
"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.
"Aggregate Call Option Exercise Consideration" has the meaning set forth in
the Call Option Agreement.
"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
Unit Agent.
"Business Day" means any day other than Saturday, Sunday or any other day
on which banking institutions in The City of New York or Chicago, Illinois are
authorized or obligated by law or executive order to be closed.
"Call Option" means an option entitling the Call Option Holder to acquire
the Debentures underlying the related Normal Unit on the terms and subject to
the conditions set forth in the Call Option Agreement.
"Call Option Agreement" means the Call Option Agreement, dated as of the
date hereof, between the Call Option Holder named therein and the Unit Agent, in
its capacity as Unit Agent and as attorney-in-fact for the Holders from time to
time of the Normal Units, the form of which is attached hereto as Exhibit C, as
the same may be amended from time to time in accordance with the terms hereof
and thereof.
"Call Option Expiration Date" means August 31, 2001 (or, if such date is
not a Trading Day, the next succeeding Trading Day).
"Call Option Holder" means the Person named as the Call Option Holder in
the Call Option Agreement.
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"Call Settlement Date" means the date on which the Call Options are settled
pursuant to the Call Option Agreement.
"Cash Merger" has the meaning specified in Section 511.
"Closing Price" has the meaning specified in Section 501.
"Collateral Agent" means First Union National Bank, 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.
"Common Stock" means the Common Stock, par value $2.00 per share, of the
Company having such terms as set forth in the Company's certificate of
incorporation, as amended from time to time.
"Company" means the Person designated 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, with respect to each Purchase Contract, a fee payable
by the Company to the Holder of the related Unit, accruing on the Stated Amount
of such Unit from and including the date of first issuance of any Units to but
excluding the Stock Purchase Date and payable quarterly in arrears on each
Quarterly Payment Date to and including the Stock Purchase Date at a rate per
annum equal to the Contract Fee Rate (and computed on the basis of a 360-day
year of twelve 30-day months), plus any additional fees accrued thereon pursuant
to Section 503.
"Contract Fee Rate" means 0.55%.
"Corporate Trust Office" means the principal office of the Unit Agent, at
which at any particular time its corporate trust business shall be administered,
which office at the date hereof is located at One First National Plaza, Suite
0126, Chicago, Illinois 60670-0126.
"Current Market Price" has the meaning specified in Section 506(a)(8).
"Debenture Put Option" has the meaning specified for the term "Put Option"
in the Indenture.
"Debentures" means the 5.95% Junior Subordinated Deferrable Debentures due
November 30, 2003 of the Company issued under the Indenture.
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"Deferral Rate" means 5.95% per annum plus, for the period after the Call
Option Expiration Date, the amount (if any) by which the interest rate on the
Debentures shall have been increased on the Call Option Expiration Date in
accordance with the terms of the Debentures.
"Depositary" means a clearing agency registered under the Exchange Act that
is designated to act as Depositary for Global Units as contemplated by Section
305.
"Early Settlement" has the meaning set forth in Section 511.
"Early Settlement Date" has the meaning set forth in Section 511.
"Exchange Act" means the Securities Exchange Act of 1934 or any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 104.
"Global Unit Certificate" means a Unit Certificate that evidences all or
part of the Normal Units or a Unit Certificate that evidences all or a part of
the Stripped Units and is registered in the name of the Depositary or a nominee
thereof.
"Holder" means a Person in whose name a Unit Certificate is registered in
the Unit Register; "Holder", when used with respect to any particular Unit
Certificate (or Unit), means a Person in whose name such Unit Certificate (or
the Unit Certificate evidencing such Unit) is registered in the relevant Unit
Register.
"Indenture" means the Indenture, dated as of the date hereof, between the
Company and The First National Bank of Chicago, as Trustee, as the same may be
amended or supplemented from time to time with respect to the terms of the
Debentures in accordance with the terms thereof.
"Issuer Order" or "Issuer Request" means a written order or request 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 Unit Agent.
"Normal Unit" means the rights to purchase Common Stock under a Purchase
Contract, together with ownership of the Debentures or other Pledged Securities
pledged to secure the obligations referred to in (a) and (b) below, subject to
(a) the obligations owed to the Company under such Purchase Contract, (b) for so
long as any Call Options remain exercisable, the obligations owed to the Call
Option Holder under a Call Option and (c) the
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pledge arrangements securing the foregoing obligations; provided, however, that
the term "Normal Unit" will not include any Stripped Unit.
"NYSE" has the meaning specified in Section 501.
"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 Unit
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 Unit Certificates" means, as of the date of determination, all
Unit Certificates theretofore authenticated, executed and delivered pursuant to
this Agreement, except:
(a) Unit Certificates theretofore canceled by the Unit Agent or
delivered to the Unit Agent for cancellation; and
(b) Unit Certificates in exchange for or in lieu of which other Unit
Certificates have been authenticated, executed on behalf of the Holder and
delivered pursuant to this Agreement, other than any such Unit Certificate
in respect of which there shall have been presented to the Unit Agent proof
satisfactory to it that such Unit Certificate is held by a bona fide
purchaser in whose hands the Units evidenced by such Unit Certificate are
valid obligations of the Company.
"Outstanding Units" means, as of the date of determination, all Units
evidenced by then Outstanding Unit Certificates, except, on or after the
Termination Date or Stock Purchase Date, Units for which the underlying Pledged
Securities or the Common Stock purchasable upon settlement of the underlying
Purchase Contracts, as the case may be, have been theretofore deposited with the
Unit Agent in trust for the Holders of such Units; provided, however, that in
determining whether the Holders of the requisite number of Units have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Units 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 Unit
Agent shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Units which the Unit
Agent actually knows to be so owned shall be so disregarded. Units so owned
which have been pledged in good faith may be regarded as Outstanding Units if
the pledgee establishes to the satisfaction of the Unit Agent
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the pledgee's right so to act with respect to such Units and that the pledgee is
not the Company or any Affiliate of the Company.
"Paid Units" has the meaning specified in Section 504(a).
"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 of the Pledged Securities under the Pledge
Agreement.
"Pledge Agreement" means the Pledge Agreement, dated as of the date hereof,
among the Company, the Call Option Holder, the Collateral Agent and the Unit
Agent, in its capacity as Unit Agent and as attorney-in-fact for the Holders
from time to time of the Units, the form of which is attached hereto as Exhibit
D, as the same may be amended from time to time in accordance with the terms
hereof and thereof.
"Pledged Securities" has the meaning specified in the Pledge Agreement.
"Predecessor Unit Certificate" of any particular Unit Certificate means
every previous Unit Certificate evidencing all or a portion of the rights and
obligations of the Holder under the Units evidenced thereby; and, for the
purposes of this definition, any Unit Certificate authenticated and delivered
under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or
stolen Unit Certificate shall be deemed to evidence the same rights and
obligations of the Holder as the mutilated, destroyed, lost or stolen Unit
Certificate.
"Principal Agreements" means this Agreement (including the obligations
under the Purchase Contracts), the Pledge Agreement and the Call Option
Agreement.
"Purchase Contract" means the obligation of the Company to sell and the
Holder of the related Unit to purchase Common Stock on the terms and subject to
the conditions set forth in Article Five hereof.
"Purchase Contract Settlement Fund" has the meaning specified in Section
505.
"Purchased Shares" has the meaning specified in Section 506(a)(6).
"Put Agent" has the meaning specified in Section 504(b)(i).
"Quarterly Payment Date" means each February 28, May 31, August 31 and
November 30, commencing February 28, 1999.
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"Record Date", when used with respect to any payment date, means the
Business Day next preceding such payment date; provided, however, that if any
Units are no longer evidenced by a Global Unit Certificate, "Record Date", when
used with respect to any payment date for such Units, means the first day of the
month in which such payment date falls; and provided further, that if payments
are in respect of Debentures underlying Normal Units, "Record Date", when used
with respect to such payments means the record date for such payments determined
as provided under the Indenture.
"Reorganization Event" has the meaning specified in Section 506(b).
"Responsible Officer", when used with respect to the Unit Agent, means any
officer of the Unit Agent assigned by the Unit Agent to administer corporate
trust matters and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Senior Indebtedness" has the meaning specified in the Indenture.
"Settlement Rate" has the meaning specified in Section 501.
"Stated Amount" means $40.00 per Unit.
"Stock Purchase Date" means November 30, 2001 or such earlier date on which
the Purchase Contract may be settled pursuant to Section 511.
"Stripped Unit" means the rights to purchase Common Stock under a Purchase
Contract, together with ownership of the Treasury Securities pledged to secure
the obliga tions referred to in (a) below, subject to (a) the obligations owed
to the Company under such Purchase Contract and (b) the pledge arrangements
securing the foregoing obligations; provided, however, that the term "Stripped
Unit" will only include Units issued as a result of a Stripped Unit Creation as
contemplated by Section 309.
"Stripped Unit Creation" has the meaning specified in Section 309(a).
"Termination Date" means the date, if any, on which a Termination Event
occurs.
"Termination Event" means the occurrence of any of the following events at
any time on or prior to the Stock Purchase Date: (a) a decree or order of 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 90 days prior to the Stock
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<PAGE>
Purchase Date, such decree or order shall have continued undischarged and
unstayed for a period of 90 days, or (b) 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 90 days
prior to the Stock Purchase Date, such decree or order shall have continued
undischarged and unstayed for a period of 90 days, or (c) 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 or any statute successor
thereto, in each case as amended from time to time.
"Trading Day" has the meaning specified in Section 501.
"Treasury Securities" means United States Treasury Securities.
"Underwriting Agreement" means the Underwriting Agreement dated November
23, 1998, among the Company, and Goldman, Sachs & Co. and Salomon Smith Barney
Inc., as the Underwriters named therein.
"Unit Agent" means the Person named as the "Unit Agent" in the first
paragraph of this Agreement until a successor Unit Agent shall have become such
pursuant to the applicable provisions of this Agreement, and thereafter "Unit
Agent" shall mean the Person who is then the Unit Agent hereunder.
"Unit Certificate" means a certificate evidencing the rights and
obligations of a Holder in respect of the number of Normal Units or Stripped
Units, as the case may be, specified on such certificate.
"Unit Register" and "Unit Registrar" have the respective meanings specified
in Section 305.
"Units" means the Normal Units and, if any are issued, the Stripped Units.
The Purchase Contracts, Call Options and/or Pledged Securities constituting a
part of any Units
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are sometimes referred to herein as "underlying" such Units and are sometimes
herein said to "underlie" such Units.
"Unpaid Units" has the meaning specified in Section 504(a).
"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. Reserved.
Section 103. Form of Documents Delivered to Unit 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 or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this 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 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 Unit Agent
and, where it is hereby expressly required, to the Company.
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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
Agreement and (subject to Section 701) conclusive in favor of the Unit 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 Unit Agent deems sufficient.
(c) The ownership of Units shall be proved by the Unit Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Unit shall bind every future Holder of the
same Unit and the Holder of every Unit Certificate evidencing such Unit 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 Unit
Agent or the Company in reliance thereon, whether or not notation of such action
is made upon such Unit Certificate.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Units 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 Units. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Units 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 Units on such record date. Nothing in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite number of Outstanding Units 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
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Expiration Date to be given to the Unit Agent in writing and to each Holder of
Units 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 Unit Agent in writing, and to each Holder of Units 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 Unit Agent and the Company.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of Holders or other document provided or permitted by this Agreement
to be made upon, given or furnished to, or filed with,
(a) the Unit 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 Unit Agent at the
Corporate Trust Office, Attention: Corporate Trust Administration, or at
any other address previously furnished in writing by the Unit Agent to the
Holders and the Company, or
(b) the Company by the Unit 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 800
North Lindbergh Boulevard, St. Louis, Missouri 63167, Attention: Treasurer,
or at any other address previously furnished in writing by the Company to
the Unit Agent.
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 Unit 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
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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 Unit 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 Unit 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 Units 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.
Section 110. Benefits of Agreement.
Nothing in this Agreement or in the Unit Certificates, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and 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 Units evidenced by their Unit Certificates by their
acceptance of delivery thereof.
Section 111. Governing Law.
THIS AGREEMENT AND THE UNITS SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
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NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
Section 112. Legal Holidays.
In any case where any Quarterly Payment Date or the Stock Purchase Date
shall not be a Business Day, then (notwithstanding any other provision of this
Agreement or of the Units) payment in respect of distributions or interest on or
principal of Pledged Securities or Contract Fees shall not be made, Purchase
Contracts shall not be performed and other actions described herein shall not
occur, but such payments shall be made, the Purchase Contracts shall be
performed and such other actions shall occur, as applicable, on the next
succeeding Business Day with the same force and effect as if made on such
Quarterly Payment Date or Stock Purchase Date, as the case may be; provided,
that to the extent such payment is made on the next succeeding Business Day, no
distributions or interest shall accrue or be payable by the Company or any
Holder for the period from and after any such Quarterly Payment Date or Stock
Purchase Date, as the case may be, to the date of payment or performance; except
that if such next succeeding Business Day is in the next succeeding calendar
year, such payment shall be made, the Purchase Contracts shall be performed or
such other action shall occur on the immediately preceding Business Day with the
same force and effect as if made on such Quarterly Payment Date or the Stock
Purchase Date.
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
UNIT CERTIFICATE FORMS
Section 201. Forms of Unit Certificates Generally.
Unit Certificates evidencing Normal Units shall be in substantially the
form set forth in Exhibit A hereto and Unit Certificates evidencing the Stripped
Units shall be in substantially the form of Exhibit B hereto, in each case with
such letters, numbers or other marks of identification or designation and such
legends or endorsements printed, litho-
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graphed or engraved thereon as may be required by the rules of any securities
exchange on which the Units are listed or Depositary therefor, or as may,
consistently herewith, be determined by the officers of the Company executing
such Unit Certificates, as evidenced by their execution of the Unit
Certificates.
The definitive Unit 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 Unit Certificates,
consistent with the provisions of this Agreement, as evidenced by their
execution thereof.
Every Global Unit Certificate authenticated, executed and delivered
hereunder shall bear a legend in substantially the following form:
THIS UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE WITHIN THE MEANING OF
THE MASTER UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS UNIT CERTIFICATE MAY NOT
BE EXCHANGED IN WHOLE OR IN PART FOR A UNIT CERTIFICATE REGISTERED, AND NO
TRANSFER OF THIS UNIT CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN
THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE MASTER UNIT AGREEMENT.
Section 202. Form of Unit Agent's Certificate of Authentication.
The form of the Unit Agent's certificate of authentication of the Units
shall be in substantially the form set forth on the form of the Unit
Certificates.
ARTICLE THREE
THE UNITS
Section 301. Title and Terms; Denominations.
The aggregate number of Units evidenced by Unit Certificates authenticated,
executed on behalf of the Holders and delivered hereunder is limited to
17,500,000, except for Unit Certificates authenticated, executed and delivered
upon registration of transfer of, in exchange for, or in lieu of, other Unit
Certificates pursuant to Section 304, 305, 306 or 805.
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All of the Unit Certificates authenticated, executed and delivered
hereunder shall be Normal Units except for any Unit Certificates evidencing
Stripped Units issued in connection with a Stripped Unit Creation pursuant to
Section 309 and Unit Certificates authenticated, executed and delivered upon
registration of transfer of, in exchange for, or in lieu of, other Unit
Certificates evidencing Stripped Units pursuant to Section 304, 305, 306 or 805.
Unit Certificates shall be issuable only in registered form and only in
denominations of a single Unit and any integral multiple thereof.
Section 302. Rights and Obligations Evidenced by the Unit Certificates.
Each Unit Certificate shall evidence the number of Units specified therein.
Prior to the purchase, if any, of shares of Common Stock under the Purchase
Contracts, the Units shall not entitle the Holders to any of the rights or
privileges of a holder of shares of Common Stock by virtue of holding such
Units, including, without limitation, the right to vote or receive any dividends
or other distributions 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.
Section 303. Execution, Authentication, Delivery and Dating.
Subject to the provisions of Section 309 hereof, upon the execution and
delivery of this Agreement, and at any time and from time to time thereafter,
the Company may deliver Unit Certificates executed by the Company to the Unit
Agent for authentication, execution on behalf of the Holders and delivery,
together with its Issuer Order for authentication of such Unit Certificates, and
the Unit Agent in accordance with such Issuer Order shall authenticate, execute
on behalf of the Holders and make such Unit Certificates available for delivery.
The Unit Certificates 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 Unit Certificates
may be manual or facsimile.
Unit 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 Unit Certificates or
did not hold such offices at the date of such Unit Certificates.
Each Unit Certificate shall be dated the date of its authentication.
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No Purchase Contract or Call Option underlying a Unit evidenced by a Unit
Certificate shall be valid until such Unit Certificate has been executed on
behalf of the Holder by the manual signature of an authorized signatory of the
Unit Agent, as such Holder's attorney-in-fact. Such signature by an authorized
signatory of the Unit Agent shall be conclusive evidence that the Holder of such
Unit Certificate has entered into the Purchase Contracts and Call Options
underlying the Units evidenced by such Unit Certificate.
No Unit Certificate shall be entitled to any benefit under this Agreement
or be valid or obligatory for any purpose unless there appears on such Unit
Certificate a certificate of authentication substantially in the form provided
for herein executed by an authorized signatory of the Unit Agent by manual
signature, and such certificate upon any Unit Certificate shall be conclusive
evidence, and the only evidence, that such Unit Certificate has been duly
authenticated and delivered hereunder.
Section 304. Temporary Unit Certificates.
Pending the preparation of definitive Unit Certificates, the Company shall
execute and deliver (together with an Issuer Order) to the Unit Agent, and the
Unit Agent shall authenticate, execute on behalf of the Holders, and deliver, in
lieu of such definitive Unit Certificates, temporary Unit Certificates which are
in substantially the form set forth in Exhibit A or Exhibit B 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 Units are listed
or Depositary therefor, or as may, consistently herewith, be determined by the
officers of the Company executing such Unit Certificates, as evidenced by their
execution of the Unit Certificates.
If temporary Unit Certificates are issued, the Company will cause
definitive Unit Certificates to be prepared without unreasonable delay. After
the preparation of definitive Unit Certificates, the temporary Unit Certificates
shall be exchangeable for definitive Unit Certificates upon surrender of the
temporary Unit 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 Unit Certificates, the Company shall execute and
deliver to the Unit Agent, and the Unit Agent shall authenticate, execute on
behalf of the Holder, and deliver in exchange therefor, one or more definitive
Unit Certificates of authorized denominations and evidencing a like number of
Normal Units or Stripped Units, as the case may be, as the temporary Unit
Certificate or Unit Certificates so surrendered. Until so exchanged, the
temporary Unit Certificates shall in all respects evidence the same benefits and
the same obligations with respect to the Units evidenced thereby as definitive
Unit Certificates.
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Section 305. Registration; Registration of Transfer and Exchange.
The Unit Agent shall keep at the Corporate Trust Office registers (the
registers maintained in such office being herein referred to as the "Unit
Registers") in which, subject to such reasonable regulations as it may
prescribe, the Unit Agent shall provide for the registration of Unit
Certificates evidencing the Normal Units and the Stripped Units and of transfers
of Unit Certificates evidencing the Normal Units and the Stripped Units (the
Unit Agent, in such capacity, the "Unit Registrar"). Upon request from any
Trustee or the Company, the Unit Agent shall furnish to such requesting party a
copy of the Unit Register for the Unit Certificates evidencing the Normal Units
as promptly as practicable.
Upon surrender for registration of transfer of any Unit Certificate at the
Corporate Trust Office, the Company shall execute and deliver to the Unit Agent,
and the Unit 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 Unit Certificates evidencing a like number of
Normal Units or Stripped Units, as the case may be.
At the option of the Holder, Unit Certificates may be exchanged for other
Unit Certificates evidencing a like number of Normal Units or Stripped Units, as
the case may be, upon surrender of the Unit Certificates to be exchanged at the
Corporate Trust Office. Whenever any Unit Certificates are so surrendered for
exchange, the Company shall execute and deliver to the Unit Agent, and the Unit
Agent shall authenticate, execute on behalf of the Holder, and deliver the Unit
Certificates which the Holder making the exchange is entitled to receive.
All Unit Certificates issued upon any registration of transfer or exchange
of a Unit Certificate shall evidence the ownership of the same number of Normal
Units or Stripped Units, as the case may be, and be entitled to the same
benefits and subject to the same obligations, under the Principal Agreements as
the Normal Units or Stripped Units, as the case may be, evidenced by the Unit
Certificate surrendered upon such registration of transfer or exchange.
Every Unit Certificate presented or surrendered for registration of
transfer or for exchange shall (if so required by the Unit Agent) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Unit 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 Unit Certificate, but the Company and the Unit 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 Unit Certificates (which, for these purposes, includes a
Stripped Unit Creation or a transfer of Pledged Securities as
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contemplated by Section 504(a)), other than any exchanges pursuant to Sections
304, 306 and 805 not involving any transfer.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder and deliver any Unit
Certificate in respect of a Unit Certificate presented or surrendered for
registration of transfer or for exchange on or after the Stock Purchase Date or
the Termination Date. In lieu of delivery of a new Unit Certificate, upon
satisfaction of the applicable conditions specified above in this Section and
receipt of appropriate registration or transfer instructions from such Holder,
the Unit Agent shall (a) if the Stock Purchase Date has occurred, deliver the
shares of Common Stock issuable in respect of the Purchase Contracts forming a
part of the Units evidenced by such Unit Certificate, or (b) if a Termination
Event shall have occurred on or prior to the Stock Purchase Date, transfer the
liquidation or principal amount of the Pledged 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 (a), (b), (c) and (d) below shall apply only to
Global Unit Certificates:
(a) Each Global Unit 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 Unit Certificate or a nominee thereof
and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Unit Certificate shall constitute a single
Unit Certificate for all purposes of this Agreement.
(b) Notwithstanding any other provision in this Agreement, no Global
Unit Certificate may be exchanged in whole or in part for Unit Certificates
registered, and no transfer of a Global Unit Certificate in whole or in
part may be registered, in the name of any Person other than the Depositary
for such Global Unit Certificate or a nominee thereof unless (i) such
Depositary (x) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Unit Certificate or (y) has ceased
to be a clearing agency registered under the Exchange Act or (ii) there
shall have occurred and be continuing a default by the Company in respect
of its obligations under one or more Principal Agreements.
(c) Subject to Clause (b) above, any exchange of a Global Unit
Certificate for other Unit Certificates may be made in whole or in part,
and all Unit Certificates issued in exchange for a Global Unit Certificate
or any portion thereof shall be registered in such names as the Depositary
for such Global Unit Certificate shall direct.
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(d) Every Unit Certificate authenticated and delivered upon
registration of transfer of, in exchange for or in lieu of a Global Unit
Certificate or any portion thereof, whether pursuant to this Section,
Section 304, 306 or 805 or otherwise, shall be authenticated, executed on
behalf of the Holders and delivered in the form of, and shall be, a Global
Unit Certificate, unless such Unit Certificate is registered in the name of
a Person other than the Depositary for such Global Unit Certificate or a
nominee thereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Unit Certificates.
If any mutilated Unit Certificate is surrendered to the Unit Agent, the
Company shall execute and deliver to the Unit Agent, and the Unit Agent shall
authenticate, execute on behalf of the Holder, and deliver in exchange therefor,
a new Unit Certificate, evidencing the same number of Normal Units or Stripped
Units, as the case may be, and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Unit Agent (a) evidence
to their satisfaction of the destruction, loss or theft of any Unit Certificate,
and (b) 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 Unit Agent that such Unit Certificate has been acquired by a
bona fide purchaser, the Company shall execute and deliver to the Unit Agent,
and the Unit Agent shall authenticate, execute on behalf of the Holder, and
deliver to the Holder, in lieu of any such destroyed, lost or stolen Unit
Certificate, a new Unit Certificate, evidencing the same number of Normal Units
or Stripped Units, as the case may be, and bearing a number not
contemporaneously outstanding.
Notwithstanding the foregoing, the Company shall not be obligated to
execute and deliver to the Unit Agent, and the Unit Agent shall not be obligated
to authenticate, execute on behalf of the Holder, and deliver to the Holder, on
or after the Stock Purchase Date or the Termination Date, a Unit Certificate in
respect of any mutilated, destroyed, lost or stolen Unit Certificate. In lieu
of delivery of a new Unit Certificate, upon satisfaction of the applicable
conditions specified above in this Section and receipt of appropriate
registration or transfer instructions from such Holder, the Unit Agent shall (a)
if the Stock Purchase Date has occurred, deliver the shares of Common Stock
issuable in respect of the Purchase Contracts forming a part of the Units
evidenced by such Unit Certificate, or (b) if a Termination Event shall have
occurred on or prior to the Stock Purchase Date, transfer the liquidation or
principal amount of the Pledged 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 Unit Certificate under this Section, the
Company and the Unit Agent may require the payment by the Holder of a sum
sufficient to cover any tax
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or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Unit Agent) connected
therewith.
Every new Unit Certificate issued pursuant to this Section in lieu of any
destroyed, lost or stolen Unit Certificate shall constitute an original
additional contractual obligation of the Company and of the Holder, whether or
not the destroyed, lost or stolen Unit 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 the Principal Agreements equally and proportionately
with any and all other Unit 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 Unit Certificates.
Section 307. Persons Deemed Owners.
Prior to due presentment of a Unit Certificate for registration of
transfer, the Company and the Unit Agent, and any agent of the Company or the
Unit Agent, may treat the Person in whose name such Unit Certificate is
registered as the owner of the Units evidenced thereby, for the purpose of
receiving payments of distributions or interest on the Pledged Securities,
receiving or making payments of Contract Fees and performance of the underlying
Purchase Contracts and Call Options and for all other purposes whatsoever,
whether or not the payment of distributions or interest on the Pledged
Securities or any Contract Fee payable in respect of the Purchase Contracts
constituting a part of the Units evidenced thereby shall be overdue and
notwithstanding any notice to the contrary, and neither the Company nor the Unit
Agent, nor any agent of the Company or the Unit Agent, shall be affected by
notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Unit Certificate,
nothing herein shall prevent the Company, the Unit Agent or any agent of the
Company or the Unit 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 Unit Certificate or impair, as between such
Depositary and owners of beneficial interests in such Global Unit Certificate,
the operation of customary practices governing the exercise of rights of such
Depositary (or its nominee) as Holder of such Global Unit Certificate.
Section 308. Cancellation.
All Unit Certificates surrendered for delivery of shares of Common Stock on
or after the Stock Purchase Date, transfer of Pledged Securities after the
occurrence of a Termination Event or registration of transfer or exchange shall,
if surrendered to any Person other than the Unit Agent, be delivered to the Unit
Agent and, if not already canceled, shall be promptly
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canceled by it. The Company may at any time deliver to the Unit Agent for
cancellation any Unit Certificates previously authenticated, executed and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Unit Certificates so delivered shall, upon Issuer Order, be
promptly canceled by the Unit Agent. No Unit Certificates shall be
authenticated, executed on behalf of the Holder and delivered upon transfer of,
in exchange for or in lieu of any Unit Certificates canceled as provided in this
Section, except as expressly permitted by this Agreement. All canceled Unit
Certificates held by the Unit Agent shall be disposed of as directed by Issuer
Order.
If the Company or any Affiliate of the Company shall acquire any Unit
Certificate, such acquisition shall not operate as a cancellation of such Unit
Certificate unless and until such Unit Certificate is delivered to the Unit
Agent canceled or for cancellation.
Section 309. Substitution of Pledged Securities and Creation of Stripped
Units; Units Not Otherwise Separable.
(a) A Holder of Normal Units may obtain the release from the Pledge of
such Holder's Pledged Securities underlying such Normal Units, free and clear of
the Company's and the Call Option Holder's security interests therein, and
convert such Normal Units into Stripped Units (collectively, a "Stripped Unit
Creation") at any time after the original issuance of such Normal Units and on
or prior to the second Business Day immediately preceding the Stock Purchase
Date by:
(i) delivering to the Collateral Agent: (w) Treasury Securities that
through their scheduled payments will generate not later than the Stock
Purchase Date an amount of cash that is at least equal to the aggregate
Stated Amount of such Normal Units, (x) if any Contract Fees are or will be
payable by the Holders to the Company, Treasury Securities that through
their scheduled payments will generate not later than each Quarterly
Payment Date falling after the date on which the requirements for such
Stripped Unit Creation contained in this Section 309(a) are satisfied and
on or before the Stock Purchase Date an amount of cash that is at least
equal to the aggregate Contract Fees that are scheduled to be payable in
respect of the Purchase Contracts underlying such Normal Units on each such
Quarterly Payment Date (assuming for this purpose that no Contract Fees
will then have been deferred under Section 503); (y) if there are any
deferred Contract Fees payable by such Holder to the Company on the date on
which the requirements for such Stripped Unit Creation contained in this
Section 309(a) are satisfied, an amount of cash equal to (1) the aggregate
unpaid amount of such Contract Fees accrued to such date, if such date is a
Quarterly Payment Date, and (2) the aggregate unpaid amount of such
Contract Fees accrued to the Quarterly Payment Date immediately preceding
such date plus interest thereon at a rate per annum equal to the Deferral
Rate for the period from and including such Quarterly Payment Date to but
excluding such date
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(calculated on the basis of a 360-day year of twelve 30-day months), if
such date is not a Quarterly Payment Date; and (z) if the Call Options
underlying such Normal Units remain exercisable on the date on which the
requirements contained in this Section 309(a) for such Stripped Unit
Creation are satisfied, an instrument from the Call Option Holder releasing
its security interest in the Pledged Securities securing such Call Options
and agreeing that such Call Options no longer underlie such Normal Units
(or the Stripped Units they become); and
(ii) surrendering the Unit Certificate evidencing such Normal Units,
with the form of Request to Create Stripped Units thereon duly completed
and executed, to the Unit Agent, whereupon the Unit Agent shall promptly
request the Collateral Agent to release the Pledged Securities underlying
such Normal Units;
provided, however, that if Treasury Securities are the Pledged Securities
underlying such Normal Units, a Stripped Unit Creation may only be effected with
respect to a number of Normal Units that will result in the release from the
Pledge of Treasury Securities in denominations of $1,000 and integral multiples
thereof.
(b) Upon receipt of the items described in clause (i) of Section 309(a)
above and the request from the Unit Agent described in clause (ii) of Section
309(a) above, the Collateral Agent will, in accordance with the terms of the
Pledge Agreement, release to the Unit Agent, on behalf of the Holder, from the
Pledge, free and clear of the Company's and the Call Option Holders's security
interests therein, the securities that theretofore had been the Pledged
Securities underlying such Normal Units, and upon receipt thereof the Unit Agent
shall promptly:
(i) cancel the Unit Certificate for such Normal Units;
(ii) transfer such released Pledged Securities to the Holder or,
subject to Section 305, the Holder's designee;
(iii) authenticate, execute on behalf of such Holder and deliver to
the Holder or, subject to Section 305, the Holder's designee a Unit
Certificate executed by the Company in accordance with Section 303
evidencing a number of Stripped Units equal to the number of such Normal
Units.
Concurrently with the release of the securities that theretofore had been the
Pledged Securities underlying such Normal Units as contemplated by the preceding
sentence, the Treasury Securities delivered to the Collateral Agent as
contemplated by clause (i) of Section 309(a) above shall thereupon be
substituted for such securities as Pledged Securities underlying the Stripped
Units created from such Normal Units.
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(c) Except for a Stripped Unit Creation effected in compliance with this
Section 309, for so long as the Purchase Contract underlying a Normal Unit
remains in effect such Normal Unit shall not be separable into its constituent
parts, and the rights and obligations of the Holder of such Normal Unit in
respect of the Pledged Securities, Purchase Contract and Call Option underlying
such Normal Unit may be acquired, and may be transferred and exchanged, only as
an integrated Normal Unit. For so long as the Purchase Contract underlying a
Stripped Unit remains in effect such Stripped Unit shall not be separable into
its constituent parts, and the rights and obligations of the Holder of such
Stripped Unit in respect of the Pledged Securities and Purchase Contract
underlying such Stripped Unit may be acquired, and may be transferred and
exchanged, only as an integrated Stripped Unit. Other than a Unit Certificate,
no Holder of a Unit, nor any transferee thereof, shall be entitled to receive a
certificate evidencing the ownership of Pledged Securities or any other rights
or obligations underlying such Unit for so long as the Purchase Contract
underlying such Unit remains in effect.
Section 310. Payments on the Units.
Contract Fees payable by the Company to the Holders, and all amounts
payable to Holders as required by Section 401 or 504(b), will be payable at the
office of the Unit 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 relevant Unit Register on
the Record Date; provided, however, that for so long as any Units are evidenced
by Global Certificates, the Unit Agent will pay each such amount payable in
respect of such Units by wire transfer in same-day funds, no later than 2:00
p.m., New York City time, on the Business Day such amount is received by the
Unit Agent from the Collateral Agent or the Company (or, if such amount is
received by the Unit Agent after 1:00 p.m., New York City time, on a Business
Day or on a day that is not a Business Day, no later than 10:00 a.m., New York
City time, on the next succeeding Business Day), to the Depositary, to the
account or accounts designated by it for such purpose.
ARTICLE FOUR
THE PLEDGED SECURITIES
Section 401. Payments on the Pledged Securities.
On each Quarterly Payment Date, as provided by the terms of the Pledge
Agreement, subject to receipt by the Collateral Agent of the relevant payments
in respect of the Pledged Securities underlying any Holder's Units, (a) the
Collateral Agent shall, subject to Section 504(b), remit to the Unit Agent the
amount of such payments and (b) the Unit Agent shall pay the amount referred to
in clause (a) above, subject to receipt thereof by the Unit Agent from the
Collateral Agent, to the Person in whose name the Unit Certificate (or one
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or more Predecessor Unit Certificates) evidencing such Units is registered at
the close of business on the Record Date next preceding such Quarterly Payment
Date.
Payments on the Pledged Securities on the Stock Purchase Date are discussed
at Section 504.
Section 402. Transfer of Pledged Securities Upon Occurrence of Termination
Event.
Upon the occurrence of a Termination Event and the transfer of the Pledged
Securities underlying each Holder's Units to the Unit Agent pursuant to the
terms of the Pledge Agreement, the Unit Agent shall request transfer
instructions with respect to such Pledged Securities from such Holder by written
request mailed to such Holder at his address as it appears in the relevant Unit
Register and shall give notice of such Termination Event to the Collateral
Agent. Thereafter, upon surrender to the Unit Agent of a Unit Certificate
evidencing a Holder's Units, with transfer instructions in proper form for
transfer of the underlying Pledged Securities, the Unit Agent shall transfer the
Pledged Securities evidenced by such Unit Certificate to such Holder in
accordance with such instructions; provided, however, that if the Pledged
Securities are to be transferred to a Person other than the Person in whose name
such Unit Certificate is registered, no such transfer shall be made unless the
Person requesting the transfer has paid any transfer and other taxes required by
reason of such transfer to a Person other than the registered Holder of such
Unit Certificate or has established to the satisfaction of the Company that such
tax either has been paid or is not payable. Until the foregoing conditions to
transfer any of the Pledged Securities underlying any Units has been met, the
Unit Agent shall hold such Pledged Securities as custodian for the Holder of
such Units.
If upon a Termination Event any Holder of Units would, after satisfying the
foregoing conditions, otherwise be entitled to receive (or have transferred to
such Holder's designee) Treasury Securities of any series having a principal
amount that is not an integral multiple of $1,000, such Holder shall instead be
entitled to receive (or have transferred to such Holder's designee) Treasury
Securities of such series in a principal amount equal to the next lower integral
multiple of $1,000 plus a portion of the net proceeds from the sale of Treasury
Securities of such series contemplated by the succeeding sentence representing
such Holder's interest therein. As soon as practicable after transfer to the
Unit Agent of the Pledged Securities as provided in the Pledge Agreement, the
Unit Agent shall, on behalf of all Holders who, by virtue of the preceding
sentence, will not be entitled to a portion of the Treasury Securities of any
series to which they would otherwise be entitled, aggregate and sell the
Treasury Securities of such series representing such portion to or through one
or more U.S. government securities dealers at then prevailing prices, deduct
from the proceeds of such sales all commissions and other out-of-pocket
transaction costs incurred in connection with such sales and, until the net
proceeds therefrom have been distributed to the Holders entitled thereto or
their designees, hold such proceeds in trust for such Holders.
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ARTICLE FIVE
THE PURCHASE CONTRACTS
Section 501. Purchase of Shares of Common Stock.
Each Holder of a Unit Certificate, by his acceptance thereof, agrees that
it has entered into and shall be bound by the underlying Purchase Contract the
terms and conditions of which are set forth in this Article Five. Each Purchase
Contract shall obligate the Holder of such Unit to purchase, and the Company to
sell, on the Stock Purchase 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 Stock Purchase Date, there shall have occurred a Termination Event.
The "Settlement Rate" is equal to (a) if the Applicable Market Value (as defined
below) is greater than or equal to $48.80 (the "Threshold Appreciation Price"),
0.8197 of a share of Common Stock per Purchase Contract, (b) if the Applicable
Market Value is less than 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 or, if there is not a
nearest 1/10,000th of a share, to the next lower 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 509, no fractional shares of
Common Stock will be issued upon settlement of Purchase Contracts.
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 Stock Purchase 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
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 investment
banking firm retained for this purpose by the 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
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or association or over-the-counter market that is the primary market for the
trading of the Common Stock.
Each Holder of a Unit Certificate evidencing Normal Units, by his
acceptance thereof, irrevocably authorizes the Unit Agent to enter into and
perform the underlying Purchase Contracts and Call Options 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
and Call Options, consents to the provisions of the Principal Agreements,
irrevocably authorizes the Unit Agent to enter into and perform the Call Option
Agreement and the Pledge Agreement on his behalf as his attorney-in-fact, and
consents to and agrees to be bound by the Pledge of the Pledged Securities
underlying such Normal Units pursuant to the Pledge Agreement. Each Holder of a
Unit Certificate evidencing Stripped Units, by his acceptance thereof,
irrevocably authorizes the Unit Agent to enter into and perform the underlying
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 of the
Principal Agreements, irrevocably authorizes the Unit Agent to 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 Pledged Securities underlying such
Stripped Units pursuant to the Pledge Agreement. Each Holder of Units, by his
acceptance thereof, further irrevocably covenants and agrees that, unless such
Holder satisfies its obligations to the Company under the Purchase Contracts
underlying such Units as provided in Section 504(a), then to the extent and in
the manner provided in Section 504(b) and the Pledge Agreement, but subject to
the terms thereof, payments in respect of all or a portion of the principal of
or proceeds from the Pledged Securities on the Stock Purchase 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 Unit Certificate, the transferee shall
be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts and any Call Options
evidenced thereby and by the Pledge Agreement and the transferor shall be
released from all such obligations evidenced by the Unit Certificate so
transferred. The Company covenants and agrees, and each Holder of a Unit
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, if any Contract Fees are or will be payable by the
Company to the Holders, the Company shall pay, prior to 1:00 p.m., New York City
time, on each Quarterly Payment Date to and including the Stock Purchase Date,
the Contract Fees payable in respect of each Purchase Contract to the Person in
whose name the Unit Certificate (or one
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or more Predecessor Unit Certificates) evidencing such Purchase Contract is
registered at the close of business on the Record Date next preceding such
Quarterly Payment Date. The Company's obligations with respect to such Contract
Fees are hereby expressly subordinated in right of payment to the prior payment
in full of all Senior Indebtedness, to the extent and in the manner set forth in
the Indenture.
Each Unit Certificate delivered under this Agreement upon registration of
transfer of, in exchange for or in lieu of any other Unit Certificate shall
carry the rights to receive and obligations to pay Contract Fees accrued and
unpaid, and to accrue, which were carried by the Purchase Contracts evidenced by
such other Unit Certificate.
Section 503. Deferral of Payment Dates For Contract Fee.
So long as no default in the Company's obligations under the Principal
Agreements has occurred and is continuing, the Company shall have the right, at
any time prior to the Stock Purchase Date, to defer the payment of any or all of
the Contract Fees otherwise payable by the Company on any Quarterly Payment
Date, but only if the Company shall give the Holders and the Unit Agent written
notice of its election to defer such payment (specifying the amount to be
deferred) at least five Business Days prior to the earlier of (a) the next
succeeding Quarterly Payment Date or (b) the date the Company is required to
give notice of the Record Date or Quarterly Payment Date with respect to payment
of such Contract Fee to the NYSE or other applicable self-regulatory
organization or to Holders, or (c) the Record Date for such Quarterly Payment
Date. Any Contract Fees so deferred shall bear additional Contract Fees thereon
at a rate per annum equal to the Deferral Rate (computed on the basis of a 360-
day year of twelve 30-day months), compounding on each succeeding Quarterly
Payment Date, until paid in full. Deferred Contract Fees (and additional
Contract Fees accrued thereon) shall be due on the next succeeding Quarterly
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 Stock
Purchase Date.
In the event the Company exercises its option to defer the payment of
Contract Fees payable by it, then, until all deferred Contract Fees (including
additional Contract Fees accrued thereon) have been paid in full, the Company
shall not (a) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of the
Company's capital stock, (b) make any payment of principal, interest or premium,
if any, on or repay, repurchase or redeem any debt securities of the Company
that rank pari passu with or junior in right of payment to the Contract Fees or
(c) make any guarantee payments with respect to any guarantee by the Company of
any securities of any subsidiary of the Company if such guarantee ranks pari
passu or junior in right of payment to the Contract Fees (other than, in the
case of clauses (a), (b) and (c), (i) dividends or distributions in shares of,
or options, warrants or rights to subscribe for or purchase shares of, common
stock of the Company, (ii) any declaration of a dividend in
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connection with the implementation of a stockholder's rights plan, or the
issuance of stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto, (iii) as a result of a
reclassification of the Company's capital stock solely into shares of one or
more classes or series of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock, (iv) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the securities being converted or
exchanged and (v) purchases of common stock in connection with the satisfaction
by the Company of its obligations under any of the Company's benefit plans for
its and its subsidiaries' directors, officers or employees or any of the
company's dividend reinvestment plans).
Section 504. Payment of Purchase Price.
(a) A Holder of Units shall, by no later than 10:00 a.m., New York City
time, on the Stock Purchase Date, deliver to the Unit Agent payment of the
purchase price for the shares of Common Stock to be purchased pursuant to the
Purchase Contracts underlying such Units, which payment shall be made in lawful
money of the United States by certified or cashier's check payable to the order
of the Company in immediately available funds in an amount equal to the
aggregate Stated Amount of such Holder's Units.
By 12:00 noon, New York City time, on the Stock Purchase Date, the Unit
Agent shall (i) transfer to the Company all of the payments the Company is
entitled to receive as contemplated by the preceding sentence, (ii) notify the
Collateral Agent and the Company as to the number of Normal Units and the number
of Stripped Units, respectively, with respect to which payment has been received
as aforesaid (such Units being collectively referred to as "Paid Units") and the
number of Normal Units and the number of Stripped Units, respectively, with
respect to which payment has not been received as aforesaid (such Units being
collectively referred to as "Unpaid Units"), and (iii) request the Collateral
Agent (with notice of such request to the Company) to release the Pledged
Securities underlying the Paid Units (or, in the case of Treasury Securities,
the cash payments received thereon) from the Pledge and transfer such released
Pledged Securities (or such cash) to the Unit Agent for delivery to the Holders
of such Units entitled thereto, free and clear of the Company's security
interest therein.
By 1:00 p.m., New York City time, on the Stock Purchase Date, the
Collateral Agent shall, as provided by the terms of the Pledge Agreement, comply
with the request referred to in clause (iii) of the preceding sentence (subject
to the Company's right under the Pledge Agreement to prevent the Collateral
Agent from doing so to the extent the aggregate amount the Company has received
as contemplated by clause (i) of the preceding sentence is less than the
aggregate amount payable with respect to the Units referred to in such request).
The Unit Agent shall thereupon, subject to its receipt from the Collateral Agent
of the Pledged
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Securities (or cash) referred to in such request and subject to Section 305,
transfer such released Pledged Securities (or cash) to the respective Holders
entitled thereto in accordance with the settlement instructions specified in the
form of Settlement Instructions appearing on the Unit Certificates evidencing
the Paid Units; provided, however, that if any such Unit Certificate is not
surrendered to the Unit Agent with the form of Settlement Instructions thereon
duly completed and executed, the Unit Agent shall hold such Pledged Securities
(or cash), and any distributions or interest received on such Pledged
Securities, as custodian for the Holder entitled thereto, to be delivered to
such Holder (without any interest thereon and subject to Section 305) upon
surrender of such Unit Certificate to the Unit Agent (with the form of
Settlement Instructions thereon duly completed and executed).
(b) With respect to each Holder's Unpaid Units, pursuant to the terms of
the Pledge Agreement,
(i) if Debentures underlie such Unpaid Units, the Collateral Agent,
on behalf of such Holder, shall, as Put Agent, exercise the Debenture Put
Option with respect thereto;
(ii) the Collateral Agent shall deliver to the Company, out of the
proceeds from the exercise of such Debenture Put Option or, if Treasury
Securities underlie such Unpaid Units, the proceeds from the payment of
such Treasury Securities at maturity, an amount equal to the aggregate
Stated Amount of such Unpaid Units plus the unpaid Contract Fees, if any,
payable by such Holder to the Company in respect of such Unpaid Units to
satisfy in full such Holder's obligations under such Unpaid Units; and
(iii) the Collateral Agent shall remit to the Unit Agent, on behalf
of such Holder, the remainder of the proceeds, if any, from the Pledged
Securities underlying such Unpaid Units for distribution to such Holder.
The amount referred to in clause (iii) above shall, subject to receipt thereof
by the Unit Agent from the Collateral Agent, be paid to the Person in whose name
the Unit Certificate (or one or more Predecessor Unit Certificates) evidencing
such Unpaid Units is registered at the close of business on the Record Date next
preceding the Stock Purchase Date.
(c) Each Holder will be entitled to apply any unpaid amounts owing by the
Company to such Holder as a set-off to reduce, dollar-for-dollar, any amounts
then owing by such Holder to the Company in respect of such Holder's Units, and
such set-off amounts will be treated for all purposes as having been paid in
full by such Holder as required hereby.
(d) 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 of the
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related Unit unless the Company 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 (either directly or by operation of
set-off as contemplated by the preceding sentence).
Section 505. Issuance of Shares of Common Stock.
As promptly as practicable on or after the Stock Purchase Date, upon
receipt by the Company of payment in full of the aggregate 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
deposit with the Unit Agent, for the benefit of the Holders of the Units, one or
more certificates representing the shares of Common Stock registered in the name
of the Unit Agent (or its nominee) as custodian for the Holders (such
certificates for shares of Common Stock, together with any dividends or
distributions with respect thereto, being hereinafter referred to as the
"Purchase Contract Settlement Fund") to which the Holders are entitled
hereunder. Subject to the foregoing, upon surrender of a Unit Certificate to
the Unit Agent on or after the Stock Purchase Date, with the form of Settlement
Instructions thereon duly completed and executed, the Holder of such Unit
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 Units then held by such Holder) together with cash in
lieu of fractional shares as provided in Section 509 and any dividends or
distributions with respect to such shares constituting part of the Purchase
Contract Settlement Fund, but without any interest thereon, and the Unit
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 form of Settlement Instructions appearing on the surrendered Unit
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 Unit
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 Unit 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.
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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 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 Units upon settlement of the Purchase Contracts underlying such
Units) 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.
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(3) In case outstanding shares of Common Stock shall be subdivided 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
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 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 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 para graph (1) of this Section), 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 the determination of stockholders
entitled to receive such distribution by a fraction of which the numerator 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 Unit Agent) of the portion of the assets or evidences
of indebtedness so distributed applicable to one share of Common Stock and the
denominator shall all 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. 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, when combined 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 to the extent
such amount has not already been applied in a prior adjustment pursuant to this
paragraph (5) and (II) 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 date of expiration of such
tender or exchange offer, of the consideration paid 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 expiring 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
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Common Stock on the date fixed for the determination of stockholders entitled to
receive such distribution times the number of shares of Common Stock outstanding
on such date (such excess portion of such distribution being herein referred to
as the "Excess Amount"), 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 the
determination of stockholders entitled to receive such distribution by a
fraction of which (i) the numerator shall be the Current Market Price per share
of the Common Stock on the date fixed for such determination less an amount
equal to (x) such Excess Amount divided by (y) the number of shares of Common
----------
Stock outstanding at the close of business on the date fixed for such
determination and (ii) the denominator shall be the Current Market Price per
share of the Common Stock on the date fixed for such determination, 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.
(6) In case the Company or any subsidiary of the Company shall consummate a
tender or exchange offer for all or any portion of the Common Stock and pay an
aggregate consideration in respect thereof having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) that, when combined 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 date of expiration of such tender or exchange offer, of the consideration
paid in respect of any other tender or exchange offer by the Company or any of
its subsidiaries for all or any portion of the Common Stock expiring within the
12 months preceding the date of expiration of such tender or exchange 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
date of expiration of such tender or exchange offer to the extent such amount
has not already been applied in a prior adjustment pursuant to paragraph (5) of
this Section, exceeds 15% of the product of the Current Market Price per share
of the Common Stock on the date of expiration of such tender or exchange offer
times the number of shares of Common Stock outstanding (including any tendered
shares) at the close of business on the date of such expiration, 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 of such expiration by a fraction of which (i) the
numerator shall be (A) the product of (I) the Current Market Price per share of
the Common Stock on the date of such expiration and (II) the number of shares of
Common Stock outstanding (including any tendered shares) at the close of
business on the date of such expiration less (B) the amount of cash plus the
fair market value (determined as aforesaid) of the aggregate consideration paid
in respect of such tender or exchange offer and (ii) the denominator shall be
the product of (A) the Current Market Price per share of the Common Stock on the
date of such expiration and (B) the number of shares of Common Stock
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outstanding (including any tendered shares) at the close of business on the date
of such expiration less the number of shares acquired pursuant to such tender or
exchange, such adjustment to become effective immediately prior to the opening
of business on the day following the date of such expiration.
(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
(i) 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 (ii) 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) 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 20 Trading Days 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 paragraph (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
Stock Purchase 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 para graph (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.
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(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 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, transfer,
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 (any such event, a "Reorganization Event"), the Settlement Rate will be
adjusted to provide that each Holder of Units will receive on the Stock Purchase
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 by a Holder of the number of shares of Common Stock
issuable on account of each Purchase Contract if the Stock Purchase 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, and 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 Unit Agent an agreement supplemental hereto providing that the Holders of
each Outstanding Unit shall have the rights provided by this Section 506. Such
supplemental agreement shall provide for adjustments 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.
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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 Unit 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 Units 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 Unit Agent shall not at any time be under any duty or
responsibility to any holder of Units 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 Unit 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 Unit Agent makes no
representation with respect thereto. The Unit 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.
Section 508. No Fractional Shares.
No fractional shares or scrip representing fractional shares of Common
Stock shall be issued or delivered upon settlement on the Stock Purchase Date.
If Unit 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 Unit Certificates so surrendered. Instead of any fractional share of Common
Stock which would otherwise be deliverable upon settlement of any Purchase
Contracts on the Stock Purchase Date, the Company, through the Unit Agent, shall
make a cash payment in respect of such fractional interest in an amount equal to
such fraction times
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the Applicable Market Value. The Company shall provide the Unit Agent from time
to time with sufficient funds to permit the Unit Agent to make all cash payments
required by this Section 508 in a timely manner.
Section 509. 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; 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 Unit 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 Unit Certificate surrendered in respect of the Purchase Contracts
evidenced thereby, other than in the name of the Unit Agent, as custodian for
such Holder, and the Company shall not be required to issue or deliver such
share certificates or Unit 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.
Section 510. Termination Event; Notice.
The Purchase Contracts and the obligations and rights of the Company and
the Holders thereunder, including, without limitation, all obligations and
rights to pay or receive any accrued or deferred Contract Fees or to settle such
Purchase Contracts pursuant to this Article Five, shall immediately and
automatically terminate, without the necessity of any notice or action by any
Holder, the Unit Agent or the Company, if, on or prior to the Stock Purchase
Date, a Termination Event shall have occurred. Upon the occurrence of a
Termination Event, the Company shall give written notice to the Unit Agent and
the Collateral Agent, at their addresses as they appear in the Unit Registers.
Upon and after the occurrence of a Termination Event, the provisions of this
Article Five (other than this Section 510) shall automatically terminate and be
of no further force or effect, and the Unit Certificates shall thereafter
represent only the right to receive the Pledged Securities forming a part of the
Units theretofore evidenced thereby in accordance with the provisions of Section
402 and the Pledge Agreement.
Section 511. Early Settlement.
(a) In the event of a merger or consolidation of the Company of the type
described in clause (i) of Section 506(b) in which the Common Stock outstanding
immediately prior to such merger or consolidation is exchanged for consideration
consisting of at least 30% cash or cash equivalents (any such event a "Cash
Merger"), then the Company (or the successor to the Company hereunder) shall be
required to offer the Holder of each Unit the right to settle the Purchase
Contract underlying such Unit prior to the Stock
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Purchase Date ("Early Settlement") as provided herein. On or before the fifth
Business Day after the consummation of a Cash Merger the Company or, at the
request and expense of the Company, the Unit Agent shall give all Holders
notice, in the manner provided in Section 106, of the occurrence of the Cash
Merger and of the right of Early Settlement arising as a result thereof. The
Company shall also deliver a copy of such notice to the Unit Agent, the
Collateral Agent and, if the Call Options have not been exercised, the Call
Option Holder.
Each such notice shall contain:
(i) the date, which shall be not less than 20 nor more than 30 days
after the date of such notice, on which the Early Settlement will be
effected (the "Early Settlement Date");
(ii) the date, which shall be three Business Days prior to the Early
Settlement Date, by which the Early Settlement right must be exercised;
(iii) the Settlement Rate in effect as a result of such Cash Merger
and the kind and amount of securities, cash and other property receivable
by the Holder upon settlement of each Purchase Contract pursuant to Section
506(b);
(iv) a statement to the effect that all or a portion of the Stated
Amount payable by the Holder to settle the Purchase Contract will be offset
against the amount of cash so receivable upon exercise of Early Settlement,
as applicable;
(v) the instructions a Holder must follow to exercise the Early
Settlement right; and
(vi) a statement to the effect that accrued and unpaid Contract Fees
in respect of the Purchase Contracts for which Early Settlement shall have
been effected shall be payable on the Early Settlement Date and that upon
such payment Contract Fees on such Purchase Contracts shall cease to
accrue.
(b) To exercise an Early Settlement right, a Holder shall deliver to the
Unit Agent on or before 5:00 p.m., New York City time on the date specified in
the notice the Unit Certificate(s) with respect to which the Early Settlement
right is being exercised with the form of "Election to Settle Early" on the
reverse thereof duly completed accompanied by payment of the purchase price for
the property to be purchased pursuant to the Purchase Contracts underlying such
Units, which payment shall be made in lawful money of the United States by
certified or cashier's check payable to the order of the Company in immediately
available funds in an amount equal to the aggregate Stated Amount of the Units
in respect of which the Early Settlement is being effected less the amount of
cash that otherwise would be deliverable by the Company or its successor upon
settlement of the
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Purchase Contract in lieu of Common Stock pursuant to Section 506(b) and as
described in the notice to Holders.
(c) In the event an Early Settlement right shall be exercised by a Holder
in accordance with the terms hereof, (i) on the Early Settlement Date the
Company shall deliver or cause to be delivered by the Unit Agent to each such
exercising Holder the net cash, securities and other property to be received, as
provided herein, by such exercising Holder in respect of the number of
Purchase Contracts for which such Early Settlement right was exercised, together
with all accrued and unpaid Contract Fees to the Early Settlement Date payable
on such Purchase Contracts, in accordance with the settlement instructions
provided by such Holder and (ii) all references herein to Stock Purchase Date
shall be deemed to refer to such Early Settlement Date and all references to
form of Settlement Instruction shall be deemed to refer to the form of Election
to Settle Early, as applicable.
(d) In the event that Early Settlement is effected with respect to less
than all of the Purchase Contracts underlying the Units evidenced by a Unit
Certificate, upon such Early Settlement the Company shall execute and the Unit
Agent shall authenticate, execute on behalf of the Holders and deliver to the
Holder thereof, at the expense of the Company, a Unit Certificate evidencing the
Units as to which Early Settlement was not effected.
ARTICLE SIX
REMEDIES
Section 601. Unconditional Rights of Holders.
Notwithstanding any other provision in this Agreement, the Holder of any
Unit shall have the right, which is absolute and unconditional but which is
subject to Section 510, to purchase Common Stock pursuant to the Purchase
Contract underlying such Unit and to receive payment of Contract Fees payable by
the Company to such Holder with respect to such Purchase Contract and, in each
such case, to institute suit for the enforcement of any such right, and such
rights shall not be impaired without the consent of such Holder.
Section 602. Restoration of Rights and Remedies.
If any Holder of Units 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.
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Section 603. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement of mutilated,
destroyed, lost or stolen Unit Certificates in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Holders of
Units 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 604. Delay or Omission Not Waiver.
No delay or omission of any Holder to exercise any right or remedy 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 Unit by his
acceptance of the Unit Certificate evidencing such Unit 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 Unit Agent for any action taken, suffered or omitted by it as Unit 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 Unit
Agent, to any suit instituted by any Holder of Units, or group of Holders,
holding in the aggregate more than 10% of the number of Outstanding Units, or to
any suit instituted by any Holder of Units for the enforcement of payments due
in respect of Pledged Securities or Contract Fees on Purchase Contracts
underlying such Units on or after the respective due dates therefor, or for
enforcement of the right to purchase shares of Common Stock under the Purchase
Contracts constituting a part of such Units.
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 Unit 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 UNIT AGENT
Section 701. Certain Duties and Responsibilities.
(a)(i) The Unit Agent undertakes to perform, with respect to the
Units, 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 Unit Agent; and
(ii) in the absence of bad faith or negligence on its part, the
Unit Agent may, with respect to the Units, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Unit 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 Unit Agent, the Unit Agent shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Agreement but shall have no duty to confirm or
investigate the accuracy or mathematical calculations or other facts stated
therein.
(b) No provision of this Agreement shall be construed to relieve the
Unit Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(ii) the Unit 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 Unit Agent was negligent in ascertaining the pertinent facts; and
(iii) no provision of this Agreement shall require the Unit Agent 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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(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 Unit 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 Unit Agent has actual
knowledge, the Unit Agent shall transmit by mail to all Holders of Units, as
their names and addresses appear in the Unit Registers, notice of such default
hereunder, unless such default shall have been cured or waived.
Section 703. Certain Rights of Unit Agent.
Subject to the provisions of Section 701:
(a) the Unit 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 Unit
Agent shall deem it desirable that a matter be proved or established prior
to taking, suffering or omitting any action hereunder, the Unit 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 Unit Agent may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Unit 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 Unit Agent, in its
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discretion, may make reasonable further inquiry or investigation into such
facts or matters related to the issuance of the Units and the execution,
delivery and performance of the Purchase Contracts as it may see fit, and,
if the Unit 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 Unit Agent may execute any of its powers hereunder or perform
any duties hereunder either directly or by or through agents or attorneys
and the Unit 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 Units.
The recitals contained herein and in the Unit Certificates shall be taken
as the statements of the Company and the Unit Agent assumes no responsibility
for their correctness. The Unit Agent makes no representations as to the
validity or sufficiency of this Agreement or of the Units. The Unit Agent shall
not be accountable for the use or application by the Company of the proceeds in
respect of the Debentures or Purchase Contracts.
Section 705. May Hold Units.
Any Unit Registrar or any other agent of the Company, or the Unit Agent, in
its individual or any other capacity, may become the owner or pledgee of Units
and may otherwise deal with the Company with the same rights it would have if it
were not Unit Registrar or such other agent, or the Unit Agent.
Section 706. Money Held in Trust.
Money held by the Unit Agent hereunder need not be segregated from other
funds except to the extent required by law. The Unit 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:
(a) to pay to the Unit Agent from time to time reasonable compensation
for all services rendered by it hereunder as the Company and the Unit Agent
shall from time to time agree in writing;
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(b) except as otherwise expressly provided herein, to reimburse the
Unit Agent upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Unit 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
(c) to indemnify the Unit Agent and any predecessor Unit Agent and
their agents for, and to hold each of them harmless against, any and all
loss, damage, claim, liability or expense, including taxes (other than
taxes based upon, measured by or determined by the income of the Unit
Agent), 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.
The provision of this Section 707 shall survive the termination of this
Agreement and the resignation or removal of the Unit Agent.
Section 708. Unit Agent Required; Eligibility.
There shall at all times be an Unit Agent hereunder which shall be a
corporation or banking association 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 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. 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 Unit 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 Unit Agent and no appointment of a
successor Unit Agent pursuant to this Article shall become effective until the
acceptance of appointment by the successor Unit Agent in accordance with the
applicable requirements of Section 710.
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(b) The Unit 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 Unit Agent required by Section 710 shall
not have been delivered to the Unit Agent within 30 days after the giving of
such notice of resignation, the resigning Unit Agent may petition any court of
competent jurisdiction for the appointment of a successor Unit Agent.
(c) The Unit Agent may be removed at any time by Act of the Holders of a
majority in number of the Outstanding Units delivered to the Unit Agent and the
Company.
(d) If at any time
(i) the Unit Agent fails to comply with Section 310(b) of the TIA,
as if the Unit 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 Unit for at least six months,
or
(ii) the Unit 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
(iii) the Unit Agent shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Unit Agent or of its
property shall be appointed or any public officer shall take charge or
control of the Unit Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (x) the Company by a Board Resolution may remove the
Unit Agent, or (y) any Holder who has been a bona fide Holder of a Unit 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 Unit Agent
and the appointment of a successor Unit Agent.
(e) If the Unit Agent shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Unit Agent for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Unit
Agent and shall comply with the applicable requirements of Section 710. If no
successor Unit 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 Unit 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 Unit Agent.
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(f) The Company shall give, or shall cause such successor Unit Agent to
give, notice of each resignation and each removal of the Unit Agent and each
appointment of a successor Unit Agent by mailing written notice of such event by
first-class mail, postage prepaid, to all Holders of Units as their names and
addresses appear in the Unit Registers. Each notice shall include the name of
the successor Unit 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 Unit Agent, every
such successor Unit Agent so appointed shall execute, acknowledge and deliver to
the Company and to the retiring Unit Agent an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Unit Agent
shall become effective and such successor Unit Agent, without any further act,
deed or conveyance, shall become vested with all the rights, powers, agencies
and duties of the retiring Unit Agent; but, on the request of the Company or the
successor Unit Agent, such retiring Unit Agent shall, upon payment of its
charges, execute and deliver an instrument transferring to such successor Unit
Agent all the rights, powers and trusts of the retiring Unit Agent and shall
duly assign, transfer and deliver to such successor Unit Agent all property and
money held by such retiring Unit Agent hereunder.
(b) Upon request of any such successor Unit Agent, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Unit Agent all such rights, powers and agencies
referred to in paragraph (a) of this Section.
(c) No successor Unit Agent shall accept its appointment unless at the time
of such acceptance such successor Unit Agent shall be qualified and eligible
under this Article.
Section 711. Merger, Conversion, Consolidation or Succession to Business.
Any corporation or banking association into which the Unit Agent may be
merged or converted or with which it may be consolidated, or any corporation or
banking association resulting from any merger, conversion or consolidation to
which the Unit Agent shall be a party, or any corporation or banking association
succeeding to all or substantially all the corporate trust business of the Unit
Agent, shall be the successor of the Unit Agent hereunder, provided such
corporation or banking association 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 Unit Certificates
shall have been authenticated and executed on behalf of the Holders, but not
delivered, by the Unit Agent then in office, any successor by merger, conversion
or consolidation to such Unit Agent may adopt such authentication and execution
and deliver the Unit Certificates so authenticated
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and executed with the same effect as if such successor Unit Agent had itself
authenticated and executed such Units.
Section 712. Preservation of Information; Communications to Holders.
(a) The Unit Agent shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders received by the Unit Agent in
its capacity as Unit Registrar.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Unit Agent, and furnish to the Unit Agent reasonable proof that
each such applicant has owned a Unit 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 Units and is accompanied by a copy of the form
of proxy or other communication which such applicants propose to transmit, then
the Unit Agent shall, within five Business Days after the receipt of such
application, afford such applicants access to the information preserved at the
time by the Unit Agent in accordance with Section 712(a).
(c) Every Holder of Units, by receiving and holding the Unit Certificates
evidencing the same, agrees with the Company and the Unit Agent that none of the
Company, the Unit 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 Unit Agent.
Except to the extent otherwise provided in this Agreement, the Unit Agent
assumes no obligations and shall not be subject to any liability under this
Agreement or any Purchase Contract or Call Option in respect of the obligations
of the Holder of any Unit thereunder. The Company agrees, and each Holder of a
Unit Certificate, by his acceptance thereof, shall be deemed to have agreed,
that the Unit Agent's execution of the Unit Certificates on behalf of the
Holders shall be solely as agent and attorney-in-fact for the Holders, and that
the Unit Agent shall have no obligation to perform such Purchase Contracts or
Call Options on behalf of the Holders, except to the extent expressly provided
in Article Five hereof.
Section 714. Tax Compliance.
(a) The Unit 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
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practice with respect to (i) any payments made with respect to the Units or (ii)
the issuance, delivery, holding, transfer, redemption or exercise of rights
under the Units. 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 Unit 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)(ii) hereof.
(c) The Unit Agent shall maintain all appropriate records documenting com-
pliance with such requirements, and shall make such records available, on
written request, to the Company or to its authorized representative within a
reasonable period of time after receipt of such request.
ARTICLE EIGHT
SUPPLEMENTAL AGREEMENTS
Section 801. Supplemental Agreements Without Consent of Holders.
Without the consent of any Holders, the parties to any Principal Agreement,
at any time and from time to time, may enter into one or more agreements
supplemental hereto or thereto, in form satisfactory to such parties, for any of
the following purposes:
(1) to evidence the succession of another Person to any such party,
and the assumption by any such successor of the covenants of such party
herein or therein and under the Units; 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 Unit Agent; or
(4) to evidence the succession of another Person to the rights of the
Call Option Holder under the Call Options, in connection with a transfer of
such rights by the Call Option Holder to such Person; or
(5) to make provision with respect to the rights of Holders pursuant
to the requirements of Section 506(b); or
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<PAGE>
(6) to cure any ambiguity, to correct or supplement any provisions
herein or therein which may be inconsistent with any other provisions
herein or therein, or to make any other provisions with respect to such
matters or questions arising under such Principal 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 majority of the
Outstanding Units (or, with respect to modifications that adversely affect only
the Holders of Normal Units or only the Holders of Stripped Units, with the
consent of the Holders of not less than a majority of the Outstanding Units that
comprise Normal Units or Stripped Units, as the case may be), by Act of said
Holders delivered to the parties to any Principal Agreement, such parties (when
authorized, in the case of the Company, by a Board Resolution) may enter into an
agreement or agreements supplemental to such Principal Agreement for the purpose
of modifying in any manner the terms of the Units, or the provisions of such
Principal Agreement or the rights of the Holders in respect of the Units;
provided, however, that no such supplemental agreement shall, without the
consent of the Holder of each Outstanding Unit affected thereby,
(1) change any payment date;
(2) change the amount or type of Pledged Securities underlying a Unit,
impair the right of the Holder of any Unit to receive distributions or
interest payments on the underlying Pledged Securities or otherwise
adversely affect the Holder's rights in or to such Pledged Securities
(including the rights of Holders of Normal Units to effect a Stripped Unit
Creation);
(3) reduce the Contract Fees or other amounts receivable by Holders in
respect of Units or increase other amounts payable by Holders in respect of
Units or change any place where, or the coin or currency in which, any
Contract Fees or other amounts receivable or payable in respect of Units
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 Stock
Purchase Date or otherwise adversely affect the Holder's rights under any
Purchase Contract; or
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(6) reduce the amount payable on exercise of any Call Option, extend
the Call Option Expiration Date (as defined in the Call Option Agreement)
or otherwise adversely affect any Holder's rights under any Call Option; or
(7) reduce the percentage of the Outstanding Units 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.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Persons entitled to consent to any supplemental
agreement to any Principal Agreement. 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 consent to such supplemental agreement, whether or not such
Holders remain Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date, any
such consent previously given shall automatically and without further action by
any Holder be cancelled and of no further effect.
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 the Principal Agreements, the Unit 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 Unit
Agent may, but shall not be obligated to, enter into any such supplemental
agreement which affects the Unit Agent's own rights, duties or immunities under
this Agreement or otherwise.
Section 804. Effect of Supplemental Agreements.
Upon the execution of any supplemental agreement under this Article, the
relevant Principal Agreement shall be modified in accordance therewith, and such
supplemental agreement shall form a part of such Principal Agreement for all
purposes; and every Holder of Unit Certificates theretofore or thereafter
authenticated, executed on behalf of the Holder and delivered hereunder shall be
bound thereby.
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Section 805. Reference to Supplemental Agreements.
Unit 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 Unit Agent, bear a notation in form
approved by the Unit Agent as to any matter provided for in such supplemental
agreement. If the Company shall so determine, new Unit Certificates so modified
as to conform, in the opinion of the Unit 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 Unit Agent
in exchange for Outstanding Unit Certificates evidencing the same number of
Normal Units or Stripped Units, as the case may be.
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 (a) 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 and the Pledge
Agreement by one or more supplemental agreements in form satisfactory to the
Unit Agent and, in the case of the Pledge Agreement, the Collateral Agent,
executed and delivered to the Unit Agent, and, in the case of the Pledge
Agreement, the Collateral Agent by such corporation, and (b) the Company or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance of any covenant or condition under any Principal Agreement or under
any of the Units.
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, such successor corporation shall
succeed to and be substituted for the Company with the same effect as if it had
been named in the Principal Agreements 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 Unit Certificates
evidencing Units issuable hereunder which theretofore shall not have been
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<PAGE>
signed by the Company and delivered to the Unit 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 Unit Agent
shall authenticate and execute on behalf of the Holders and deliver any Unit
Certificates which previously shall have been signed and delivered by the
officers of the Company to the Unit Agent for authentication and execution, and
any Unit Certificate evidencing Units which such successor corporation
thereafter shall cause to be signed and delivered to the Unit Agent for that
purpose. All the Unit Certificates so issued shall in all respects have the
same legal rank and benefit under this Agreement as the Unit Certificates
theretofore or thereafter issued in accordance with the terms of this Agreement
as though all of such Unit 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 Unit
Certificates evidencing Units thereafter to be issued as may be appropriate.
Section 903. Opinion of Counsel to Unit Agent.
The Unit Agent, subject to Sections 701 and 703, shall be provided 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.
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 Units 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 Unit Certificates may be presented or surrendered for
acquisition of shares of Common Stock upon settlement and for transfer of
Pledged Securities upon occurrence of a Termination Event, where Unit
Certificates may be surrendered for registration of transfer or exchange or
for effecting Stripped Unit Creations, where payment of Contract Fees payable by
the Company to the Holders may be made and where notices and demands to or upon
the Company in respect of the Units and this Agreement may be served. The
Company will give prompt written notice to the Unit Agent of the location, and
any
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<PAGE>
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 Unit 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 Unit 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 Unit 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 Unit 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 Units the Corporate Trust
Office and appoints the Unit Agent at its Corporate Trust Office as paying agent
in such city.
Section 1003. Company to Reserve Common Stock.
The Company shall at all times prior to the Stock Purchase 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 underlying the Units.
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 the Purchase Contracts underlying the
Units will, upon issuance, be newly issued (i.e., not issued out of treasury
shares) and 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 Unit Agent, on or before May 1 in each year
(beginning the first May 1 after the date of the original issuance of the Units
hereunder) a brief certificate 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 Agreement, 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
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has knowledge and the nature thereof. For purposes of this Section 1005, non-
compliance or default shall be determined without regard to any grace period or
requirement of notice.
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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: /s/ Juanita H. Hinshaw
_______________________________
Juanita H. Hinshaw
Vice President & Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
as Unit Agent
By: /s/ Mark J. Frye
__________________________
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EXHIBIT 4.3
================================================================================
GOLDMAN, SACHS & CO.,
as Call Option Holder
AND
THE FIRST NATIONAL BANK OF CHICAGO,
as Unit Agent and as Attorney-In-Fact
------------------
CALL OPTION AGREEMENT
------------------
Dated as of November 30, 1998
================================================================================
<PAGE>
CALL OPTION AGREEMENT
CALL OPTION AGREEMENT, dated as of November 30, 1998, between GOLDMAN,
SACHS & CO., as Call Option Holder, and THE FIRST NATIONAL BANK OF CHICAGO, as
Unit Agent and as attorney-in-fact of the Holders from time to time of the
Normal Units.
RECITALS
Monsanto Company and the Unit Agent are parties to the Master Unit
Agreement, dated as the date hereof (as the same may be supplemented or amended
in accordance with the terms thereof, the "Master Unit Agreement"). The Master
Unit Agreement contemplates that the Company will issue Debentures, and that
Debentures will underlie Normal Units outstanding from time to time thereunder.
It is intended that the Holders from time to time of the Normal Units
grant Call Options entitling the Call Option Holder to acquire the Debentures
underlying the related Normal Units on the terms and subject to the conditions
set forth herein. Pursuant to the terms of the Principal Agreements and the
Unit Certificates for the Normal Units, the Holders from time to time of the
Normal Units irrevocably authorize the Unit Agent, as attorney-in-fact of such
Holders, to enter into such Call Options and execute and deliver this Agreement
on behalf of such Holders.
Accordingly, the Call Option Holder and the Unit Agent, on its own
behalf and as attorney-in-fact of the Holders from time to time of the Normal
Units, agree as follows:
ARTICLE ONE
Definitions
Section 1. Definitions. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires:
(a) capitalized terms used herein and not defined are used herein as
defined in the Master Unit Agreement; and
<PAGE>
(b) 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.
"Aggregate Call Option Exercise Consideration" means consideration
comprised of:
(a) Treasury Securities that through their scheduled payments will
generate by each Quarterly Payment Date falling after the Call
Settlement Date and on or before the Stock Purchase Date an
amount of cash equal to the aggregate interest payments that are
scheduled to be payable in respect of the Debentures underlying
the Normal Units on such Quarterly Payment Date (assuming for
this purpose, even if not true, that (i) no distributions or
interest payments will then have been deferred and (ii) that the
rate of interest on the Debentures remains at 5.95%);
(b) Treasury Securities that through their scheduled payments will
generate by the Stock Purchase Date an amount of cash equal to
the aggregate Stated Amount of the Normal Units; and
(c) if the Company is, at the Call Settlement Date, deferring
interest payments on the Debentures, an amount in cash equal to
(i) the aggregate unpaid interest payments on the Debentures
underlying the Normal Units accrued to the Call Settlement Date,
if the Call Settlement Date is a Quarterly Payment Date, or (ii)
the aggregate unpaid interest payments on the Debentures
underlying the Normal Units accrued to the Quarterly Payment Date
immediately preceding the Call Settlement Date plus interest
thereon at the Deferral Rate for the period from and including
such Quarterly Payment Date to but excluding such Call Settlement
Date (computed on the basis of a 360-day year of twelve 30-day
months), if the Call Settlement Date is not a Quarterly Payment
Date.
"Call Option Expiration Date" means August 31, 2001 (or, if such date
is not a Business Day, the next succeeding Business Day).
ARTICLE TWO
Call Option
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<PAGE>
Section 2.1 Grant. The Holders from time to time of the Normal Units
acting through the Unit Agent as their attorney-in-fact hereby grant the Call
Options to the Call Option Holder on the terms and subject to the conditions set
forth herein.
Section 2.2 Consideration. As consideration for such Call Options,
concurrently with the execution hereof, the Call Option Holder is paying to the
underwriters under the Underwriting Agreement (who are acting in this regard on
behalf of the initial investors in the Normal Units) an amount equal to $0.10
per Call Option.
Section 2.3 Expiration or Termination of Call Options. The Call
Options shall be irrevocable, but the Call Options and the rights of the Call
Option Holder and the obligations of the Holders of Normal Units thereunder
shall (a) expire on the Call Option Expiration Date if the Call Settlement Date
has not occurred on or prior to such date and (b) automatically terminate upon
the occurrence of a Termination Event.
ARTICLE THREE
Exercise of Call Options
Section 3.1 Exercise Mechanics.
(a) The Call Option Holder may exercise all (but not less than all)
the Call Options by (i) delivering to the Unit Agent and the Collateral Agent,
on or prior to the Call Option Expiration Date, a notice, substantially in the
form set forth in Annex A attached hereto, stating that the Call Option Holder
is exercising its Call Options and specifying the Call Settlement Date therefor
(which must be a Business Day falling on or before the Call Option Expiration
Date) and (ii) delivering to the Collateral Agent, by Noon, New York City time,
on the Call Settlement Date, the Aggregate Call Option Exercise Consideration.
(b) Pursuant to the Pledge Agreement, upon receipt by the Collateral
Agent of the Aggregate Call Option Exercise Consideration in the manner
contemplated hereby and by the Pledge Agreement, the Collateral Agent shall
release the Debentures underlying the Normal Units, free and clear of any lien,
pledge or security interest created by the Pledge Agreement, and transfer such
released Debentures to the Call Option Holder or its designee as specified in
the notice referred to in Section 3.1(a) above.
(c) The Unit Agent shall, not later than three Business Days
following the Call Settlement Date, mail notice of the exercise of the Call
Options to the Holders of Normal Units in the manner prescribed by the Master
Unit Agreement.
ARTICLE FOUR
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<PAGE>
Miscellaneous
4.1 Amendments. This Agreement may be amended in the manner set forth in
Section 801 of the Master Unit Agreement with respect to supplemental
agreements.
4.2 Governing Law. THIS AGREEMENT 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. The Call Option Holder, the Unit Agent and the
Holders from time to time of the Normal Units, acting through the Unit 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 Call Option Holder, the Unit Agent and the Holders
from time to time of the Normal Units, acting through the Unit 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.
4.3 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 party. 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.
4.4 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Call Option
Holder and the Unit Agent, and the Holders from time to time of the Normal
Units, by their acceptance of the same, shall be deemed to have agreed to be
bound by the provisions hereof and to have ratified the agreements of, and the
grant of the Call Options hereunder by, the Unit Agent.
4.5 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.
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<PAGE>
4.6 Severability. If any provision hereof is invalid or unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, (a) 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 (b) 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.
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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.
GOLDMAN, SACHS & CO.,
as Call Option Holder
/s/ Goldman, Sachs & Co.
-----------------------------------
(Goldman, Sachs & Co.)
Address for Notices:
85 Broad Street
New York, New York 10004
Attention: Registration Department
Telecopy: 212-357-1557
THE FIRST NATIONAL BANK OF CHICAGO,
as Unit Agent and as attorney-in-fact of the
Holders from time to time of the Normal Units
By: /s/ Mark J. Frye
------------------------------
Name: Mark J. Frye
Title: Asst. Vice President
Address for Notices:
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
Telecopy: 312-407-1708
<PAGE>
EXHIBIT 4.4
================================================================================
MONSANTO COMPANY
GOLDMAN, SACHS & CO.,
as Call Option Holder
FIRST UNION NATIONAL BANK
as Collateral Agent and Securities Intermediary
AND
THE FIRST NATIONAL BANK OF CHICAGO
as Unit Agent and as Attorney-In-Fact
--------------
PLEDGE AGREEMENT
--------------
Dated as of November 30, 1998
================================================================================
<PAGE>
PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of November 30, 1998, among MONSANTO COMPANY, a
Delaware corporation (the "Company", as such term is more fully defined in the
Master Unit Agreement referred to below), GOLDMAN, SACHS & CO., as Call Option
Holder, FIRST UNION NATIONAL BANK, as Collateral Agent and in its capacity as a
"securities intermediary" as defined in Section 8-102(a)(14) of the Code (as
defined herein) (in such capacity, the "Securities Intermediary"), and THE FIRST
NATIONAL BANK OF CHICAGO, as Unit Agent and as attorney-in-fact of the Holders
from time to time of the Units.
RECITALS
The Company and the Unit Agent are parties to the Master Unit Agreement,
dated as of the date hereof (as the same may be supplemented or amended from
time to time in accordance with the terms thereof, the "Master Unit Agreement").
The Master Unit Agreement contemplates that the Debentures or Treasury
Securities that from time to time underlie the Units be pledged to the
Collateral Agent to secure the obligations of the Holders of Units under the
Purchase Contracts and Call Options that underlie such Units.
Pursuant to the terms of the Principal Agreements and the Unit
Certificates, the Holders from time to time of the Units irrevocably authorize
the Unit Agent, as attorney-in-fact of such Holders, to execute and deliver
this Agreement on behalf of such Holders and to grant the pledge provided hereby
of the Pledged Securities underlying such Units as provided herein and subject
to the terms hereof.
Accordingly, the Company, the Call Option Holder, the Collateral Agent and
the Unit Agent, in its capacity as Unit Agent and as attorney-in-fact of the
Holders from time to time of the Units, agree as follows:
Section 1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) capitalized terms used herein and not defined are used herein as
defined in the Master Unit Agreement;
(b) 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; and
<PAGE>
(c) all other terms contained herein shall, unless the context
indicates otherwise, have the meanings assigned to such terms by the Code
(as defined herein) to the extent the same are defined therein.
"Aggregate Call Option Exercise Consideration" has the meaning specified in
the Call Option 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 Part 357 of Title 31 of the Code of
Federal Regulations (31 CFR (S)(S) 357 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 Treasury Securities.
"Code" has the meaning specified in Section 2 hereof.
"Collateral" has the meaning specified in Section 2 hereof.
"Collateral Account" means the trust account (number 1072003531) maintained
at First Union National Bank in the name of "First Union National Bank, as
Collateral Agent".
"Date of Deemed Receipt" means, with respect to any payment received by the
Collateral Agent, the date of receipt thereof; provided, however, that if such
payment is received on a date which is not a Quarterly Payment Date and is not
either a payment in respect of defaulted interest on Debentures or a payment
comprising a part of the Aggregate Call Option Exercise Consideration, "Date of
Deemed Receipt" means, with respect to such payment, the Quarterly Payment Date
next succeeding such date of receipt.
"Pledged Securities" means all Debentures constituting a part of the Units
and any Treasury Securities delivered in exchange for Debentures in accordance
with Section 5(b) and (c) hereof (or securities entitlements thereto) in each
case that have been delivered to the Collateral Agent and not released by the
Collateral Agent to the Unit Agent under the provisions of this Agreement.
"Proceeds" means all interest, dividends, cash, instruments, securities,
financial assets (as defined in Article 8 of the Code) and other property and
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the Pledged Securities.
-2-
<PAGE>
Section 2. The Pledge. The Holders from time to time of the Units acting
through the Unit Agent, as their attorney-in-fact, hereby pledge to the
Collateral Agent (for the benefit of the Company and the Call Option Holder as
their interests may appear), and grant to the Collateral Agent, for the benefit
of the Company and the Call Option Holder (as their interests may appear) a
security interest in all of the right, title and interest of such Holders in and
to (i) the Pledged Securities, (ii) the Collateral Account and all securities,
financial assets and other property credited thereto and all security
entitlements related thereto and (iii) all proceeds from each of the foregoing
(collectively, the "Collateral"), as collateral security to ensure the
performance when due by such Holders of their respective obligations under the
Purchase Contracts and Call Options underlying such Units. Concurrently with
the execution of this Agreement, the initial Holders of the first 17,500,000
Normal Units issued under the Master Unit Agreement, the Unit Agent and the
Collateral Agent are causing $700,000,000 aggregate principal amount of
Debentures to be delivered to, and registered in the name of, the Collateral
Agent, and such Debentures will thereupon constitute Pledged Securities forming
a part of such Normal Units. As used in this Section 2, the term "delivery"
shall have the meaning ascribed to it in the Uniform Commercial Code as in
effect in the State of New York (the "Code"). In addition, the execution hereof
by the Unit Agent and the Collateral Agent shall constitute an acknowledgment by
the Collateral Agent and Securities Intermediary of the Pledge and of the
Securities Intermediary's holding of such Debentures or other Pledged Securities
substituted therefor in accordance with the provisions hereof subject to the
Pledge and of the Securities Intermediary's crediting such Debentures or other
Pledged Securities to the Collateral Account for purposes of perfecting the
Pledge under applicable law, including, to the extent applicable, the Uniform
Commercial Code as adopted and in effect in any applicable jurisdiction and the
Applicable Treasury Regulations. Subject to the Pledge, the Holders from time to
time of the Units shall have full beneficial ownership of the Pledged Securities
underlying such Units, and shall be entitled (directly or through the Collateral
Agent) to all of the rights provided by such Pledged Securities, and the Company
and the Call Option Holder shall have no rights with respect to such Pledged
Securities other than their respective security interests therein.
Section 3. Payments in Respect of the Pledged Securities. Any payment
received by the Collateral Agent in respect of the Pledged Securities underlying
any Normal Units or Stripped Units shall be paid by the Collateral Agent, by
wire transfer in same day funds no later than 1:00 p.m., New York City time, on
the Date of Deemed Receipt (or, if the Date of Deemed Receipt is not a Business
Day or if such payment is received by the Collateral Agent after noon, New York
City time, on the Date of Deemed Receipt, then such payment shall be made by the
Collateral Agent no later than 10:00 a.m., New York City time, on the next
succeeding Business Day), as follows:
(a) in the case of payments not scheduled to fall on and that are not
in respect of amounts due on the Stock Purchase Date or Early Settlement
Date, as applicable, to the Unit Agent, to the account designated by it for
payments in respect of Normal
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<PAGE>
Units or the account designated by it for payments in respect of Stripped
Units, as the case may be; and
(b) in the case of payments scheduled to fall on or that are in
respect of amounts due on the Stock Purchase Date or Early Settlement Date,
as applicable, (i) with respect to payments received in respect of Units
which are Paid Units (as specified in the notice from the Unit Agent
referred to in Section 4), to the Unit Agent, to the account designated by
it for payments in respect of Paid Units which are Normal Units or the
account designated by it for payments in respect of Paid Units which are
Stripped Units, as the case may be; and (ii) with respect to payments
received in respect of Units which are Unpaid Units (as specified in the
notice from the Unit Agent referred to in Section 4), (x) first, to the
Company, to the account designated by it for such purpose, in an amount
equal to the aggregate amount payable to the Company in respect of such
Unpaid Units, and (y) second, to the extent of any amount remaining after
the payment (if any) referred to in (x) above, to the Unit Agent, to the
account designated by it for payments in respect of Unpaid Units which are
Normal Units; provided, however, that if the Company disputes the notice
from the Unit Agent referred to in Section 4 and notifies the Collateral
Agent in writing, prior to noon, New York City time, on the Stock Purchase
Date or Early Settlement Date, as applicable, that the number of Paid Units
or the number of Unpaid Units (or both) is different from that indicated in
such notice, the foregoing payments with respect to any Paid Units or
Unpaid Units subject to dispute shall not be paid until such dispute is
resolved.
All payments received by the Unit Agent as provided herein shall be
applied by the Unit Agent pursuant to the provisions of the Master Unit
Agreement.
Section 4. Notice with Respect to Numbers of Paid Units and Unpaid Units;
Exercise of Debenture Put Options with Respect to Unpaid Units. By 12:00 noon,
New York City time, on the Stock Purchase Date or Early Settlement Date, as
applicable, the Unit Agent shall, as provided in the Master Unit Agreement,
notify the Company and the Collateral Agent as to the number of Normal Units and
the number of Stripped Units, respectively, which are Paid Units and the number
of Normal Units and the number of Stripped Units, respectively, which are Unpaid
Units. Promptly after receiving such notification, the Collateral Agent, on
behalf of such Holder, shall, as Put Agent, exercise the Debenture Put Option
with respect thereto. The payment received by the Collateral Agent from the
exercise of any Debenture Put Option shall then be applied by the Collateral
Agent in accordance with Section 3(b).
Section 5. Release and Substitution of Pledged Securities. (a) Upon
notice to the Collateral Agent by the Company or the Unit Agent that there has
occurred a Termination Event, the Collateral Agent shall release all Pledged
Securities from the Pledge and shall
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<PAGE>
transfer, without recourse, such released Pledged Securities, free and clear of
any lien, pledge or security interest created hereby, to the Unit Agent for
delivery by the Unit Agent pursuant to the provisions of the Master Unit
Agreement.
(b) Upon notice to the Collateral Agent by the Call Option Holder that the
Call Option Holder is exercising the Call Options in accordance with the terms
of the Call Option Agreement with respect to the Debentures underlying the
Normal Units, provided that the Collateral Agent receives the requisite
Aggregate Call Option Exercise Consideration on the Call Settlement Date
specified in such notice, the Collateral Agent shall release such Debentures
from the Pledge and transfer, without recourse, such released Debentures, free
and clear of any lien, pledge or security interest created hereby, to the Call
Option Holder or its designee as specified in such notice, whereupon (i) the
Treasury Securities constituting all or a part of the Aggregate Call Option
Exercise Consideration so received by the Collateral Agent shall be subject to
the Pledge with respect to the Normal Units and (ii) the Pledge shall cease to
constitute a security interest for the benefit of the Call Option Holder.
(c) In connection with a Stripped Unit Creation, upon request by the Unit
Agent to the Collateral Agent to release the then Pledged Securities underlying
the number of Normal Units indicated in such request, provided that the
Collateral Agent has received (i) the Treasury Securities and cash required by
Section 309(a)(i) of the Master Unit Agreement for a Stripped Unit Creation
relating to such Normal Units and (ii) if the Call Options underlying such
Normal Units remain exercisable on the date of receipt of such instruction, an
instrument from the Call Option Holder releasing its security interest in the
Pledged Securities underlying such Normal Units and agreeing that such Call
Options no longer underlie such Normal Units (or the Stripped Units they
become), the Collateral Agent shall release such Pledged Securities from the
Pledge and transfer, without recourse, such released Pledged Securities, free
and clear of any lien, pledge or security interest created hereby, to the Unit
Agent for delivery by the Unit Agent pursuant to the provisions of the Master
Unit Agreement, whereupon the Treasury Securities so received by the Collateral
Agent in connection with such Stripped Unit Creation shall be subject to the
Pledge and constitute the Pledged Securities underlying the Stripped Units so
created.
(d) In connection with the delivery to the Collateral Agent of Treasury
Securities pursuant to Section 5(b) or (c), such delivery shall be by Federal
Reserve Bank-Wire to the account of the Securities Intermediary designated by it
for such purpose, and the Securities Intermediary and the Call Option Holder or
transferring Holder of Normal Units, as the case may be, shall take appropriate
action (i) so that the applicable Federal Reserve Bank through which such
Treasury Securities have been purchased will reflect such transfer and the
Securities Intermediary shall credit a security entitlement with respect to such
Treasury Securities in the Collateral Account in accordance with Applicable
Treasury Regulations and (ii) as may be required to perfect the Pledge under
Applicable Treasury Regulations and applicable law.
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<PAGE>
(e) On the Stock Purchase Date or Early Settlement Date, as applicable, the
Collateral Agent shall release the Debentures underlying Units which are Paid
Units (as specified in the notice from the Unit Agent referred to in Section 4)
from the Pledge and transfer, without recourse, such released Debentures, free
and clear of any lien, pledge or security interest created hereby, to the Unit
Agent for delivery pursuant to the provisions of the Master Unit Agreement;
provided, however, that if the Company disputes the notice from the Unit Agent
referred to in Section 4 and notifies the Collateral Agent, prior to noon, New
York City time, on the Stock Purchase Date or Early Settlement Date, as
applicable, that the number of Paid Units is different from that indicated in
such notice, the foregoing release with respect to any Paid Units subject to
dispute shall not be made until such dispute is resolved.
Section 6. Rights and Remedies. (a) The Collateral Agent shall have all
of the rights and remedies with respect to the Collateral of a secured party
under the Code (whether or not said Code is in effect in the jurisdiction where
the rights and remedies are asserted) and, with respect to Pledged Securities
which are Treasury Securities, the Applicable Treasury Regulations, 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 due to the Company pursuant to the Purchase Contracts
underlying any Units, the Collateral Agent shall have and shall exercise, upon
the written direction of the Company and, if the Call Options are outstanding,
the Call Option Holder, with reference to the Pledged Securities underlying such
Units and the obligations of the Holders of such Units, any and all of the
rights and remedies available to a secured party under the Code and the
Applicable Treasury Regulations 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 distributions
or interest on the Pledged Securities, in each case subject to the provisions
hereof.
(d) The Unit Agent, the Call Option Holder and each Holder of Units agree
that, from time to time, upon the written request of the Collateral Agent, the
Unit Agent, the Call Option Holder or such Holder of Units 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.
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<PAGE>
Section 7. The Collateral Agent. The Collateral Agent, the Company and
the Call Option Holder hereby agree among themselves as follows (it being
understood and agreed that, except as provided in Section 7.08, neither the Unit
Agent nor any Holder of Units shall have any rights or duties under this Section
7):
7.01 Appointment, Powers and Immunities. The Collateral Agent shall act
hereunder as agent for the Company and the Call Option Holder, 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 shall also act as Put Agent on behalf of the Holders set
forth in Section 4. In connection therewith, the Unit Agent hereby authorizes
the Collateral Agent, acting as Put Agent to enter into and perform the
Debenture Put Option as set forth in Section 4 on its behalf and on behalf of
each of the Holders as attorney-in-fact. 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 or the Call Option Holder
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 Units, the Master Unit Agreement, or the Call Option Agreement or
for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement (other than as against the Collateral Agent), the
Units, the Master Unit Agreement or the Call Option Agreement or any other
document referred to or provided for herein or therein or for any failure by the
Company, the Call Option Holder, 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 7.02 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 or
wilful misconduct; 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 Units or any property deposited hereunder. Subject to the
foregoing, during the term of this Agreement the Collateral Agent shall take all
reasonable action in connection with the safekeeping and preservation of the
Pledged Securities 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 Securities.
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<PAGE>
7.02 Instructions of the Company. The Company (or, with respect to
matters relating to the Call Options, the Call Option Holder) 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 authorized by this Agreement; provided,
however, that (a) the Company shall not give any direction that in any way
adversely affects the rights of the Call Option Holder hereunder or under the
Call Options and the Call Option Holder shall not give any direction that in any
way adversely affects the rights of the Company hereunder or under the Purchase
Contracts, (b) such direction shall not conflict with the provisions of any law
or of this Agreement and (c) the Collateral Agent shall be adequately
indemnified as provided herein. Nothing in this Section 7.02 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.
7.03 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 or the Call Option Holder, as the case may be, in
accordance with this Agreement.
7.04 Rights in Other Capacities. The Collateral Agent and its affiliates
may (without having to account therefor to the Company or the Call Option
Holder) accept deposits from, lend money to, make investments in and generally
engage in any kind of banking, trust or other business with the Company, the
Call Option Holder, the Unit Agent and any Holder of Units 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 Company, the Call Option Holder,
the Unit Agent and any Holder of Units without having to account for the same to
the Company or the Call Option Holder, provided that the Collateral Agent
covenants and agrees with the Company and the Call Option Holder 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 Securities, except as contemplated by the terms hereof.
7.05 Non-Reliance on Collateral Agent. The Collateral Agent shall not be
required to keep itself informed as to the performance or observance by the Unit
Agent or any Holder of Units of this Agreement, the Master Unit Agreement, the
Call Option Agreement, the
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<PAGE>
Units or any other document referred to or provided for herein or therein or to
inspect the properties or books of the Unit Agent or any Holder of Units. The
Collateral Agent shall not have any duty or responsibility to provide the
Company or the Call Option Holder with any credit or other information
concerning the affairs, financial condition or business of the Unit Agent or any
Holder of Units that may come into the possession of the Collateral Agent or any
of its affiliates.
7.06 Compensation and Indemnity. The Company agrees: (a) to pay the
Collateral Agent from time to time reasonable compensation as agreed upon for
all services rendered by it hereunder and (b) to indemnify the Collateral Agent
for, and to hold it harmless against, any loss, liability or expense including
taxes (other than taxes based upon, measured by or determined by the income of
the Collateral Agent) 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. The provisions of this Section 7.06
shall survive the resignation or removal of the Collateral Agent and the
termination of this Agreement.
7.07 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 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 (a) 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 (b) 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.
7.08 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, the Unit
Agent and, if the Call Options are exercisable or have been exercised but not
settled, the Call Option Holder, (b) the Collateral
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<PAGE>
Agent may be removed at any time by the Company (provided, that, if the Call
Options are exercisable or have been exercised but not settled, the Call Option
Holder shall have consented to such removal), 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 Unit Agent and such failure shall be continuing, the Collateral
Agent may be removed by the Unit Agent. The Unit Agent shall promptly notify
the Company and, if the Call Options are exercisable or have been exercised but
not settled, the Call Option Holder of any removal of the Collateral Agent
pursuant to clause (c) of the immediately preceding sentence. Upon any such
resignation or removal, the Company and, if the Call Options are exercisable or
have been exercised but not settled, the Call Option Holder 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
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 7 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.
7.09 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.
7.10 Survival. The provisions of this Section 7 shall survive termination
of this Agreement and the resignation or removal of the Collateral Agent.
Section 8 Miscellaneous.
8.01 Amendments. This Agreement may be amended in the manner set forth in
Section 801 of the Master Unit Agreement for supplemental agreements. In
executing any amendment permitted by this Section, the Collateral Agent shall be
entitled to receive and (subject to Section 7.01 hereof) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such amendment is authorized or permitted by this
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<PAGE>
Agreement and is for a purpose set forth in Section 801 of the Master Unit
Agreement, and that all conditions precedent herein and in the Principal
Agreements related to such amendment have been satisfied.
8.02 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.
8.03 Governing Law. THIS AGREEMENT 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. The Company, the Call Option Holder, the Collateral
Agent and the Holders from time to time of the Units, acting through the Unit
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 Call Option Holder, the Collateral Agent
and the Holders from time to time of the Units, acting through the Unit 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.
8.04 Legal Holidays. In any case where any Quarterly Payment Date or the
Stock Purchase Date shall not be a Business Day, then (notwithstanding any other
provision of this Agreement or of the Units) the actions required by this
Agreement to occur on such date shall not occur on such date, but instead shall
occur on the next succeeding Business Day with the same force and effect as if
they had occurred on such Quarterly Payment Date or Stock Purchase Date, as the
case may be; except that if such next succeeding Business Day is in the next
calendar year, such actions shall occur on the immediately preceding Business
Day with the same force and effect as if made on such Quarterly Payment Date or
Stock Purchase Date.
8.05 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
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<PAGE>
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.
8.06 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the Company,
the Call Option Holder, the Collateral Agent and the Unit Agent, and the Holders
from time to time of the Units, by their acceptance of the same, shall be deemed
to have agreed to be bound by the provisions hereof and to have ratified the
agreements of, and the grant of the Pledge hereunder by, the Unit Agent, as
their attorney-in-fact.
8.07 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.
8.08 Severability. If any provision hereof is invalid or unenforceable in
any jurisdiction, then, to the fullest extent permitted by law, (a) 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 (b) 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.
8.09 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 Units to satisfy its obligations under the Purchase Contracts or Call
Options forming a part of the Units and (ii) the enforcement of this Section
8.09; 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.
8.10 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 Units here under, shall be absolute and unconditional irrespective
of:
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(a) any lack of validity or enforceability of any provision of the
Units 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 Units under the related Purchase Contracts or
Call Options or any other amendment or waiver of any term of, or any
consent to any departure from any requirement of, the Master Unit Agreement
or any Units 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.
[SIGNATURE PAGE FOLLOWS]
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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: /s/ Juanita H. Hinshaw
-----------------------------------
Name: Juanita H. Hinshaw
Title: Vice President & Treasurer
Address for Notices:
800 North Lindbergh Blvd.
St. Louis, Missouri 63167
Attention: Treasurer
Telecopy: (314) 694-4560
GOLDMAN, SACHS & CO.,
as Call Option Holder
/s/ Goldman, Sachs & Co.
----------------------------------------
(Goldman, Sachs & Co.)
Address for Notices:
85 Broad Street
New York, New York 10004
Attention: Registration Department
Telecopy: (212) 357-1557
THE FIRST NATIONAL BANK OF CHICAGO,
as Unit Agent and as attorney-in-fact of the Holders
from time to time of the Units
By: /s/ Mark J. Frye
-----------------------------------
Name: Mark J. Frye
Title: Asst. Vice President
<PAGE>
Address for Notices:
One First National Plaza
Suite 0126
Chicago, Illinois 60670-0126
Attention: Corporate Trust Administration
Telecopy: 312-407-1708
FIRST UNION NATIONAL BANK ,
as Collateral Agent
By: /s/ Shawn K. Bednasek
------------------------------------
Name: Shawn K. Bednasek
Title: Vice President
Address for Notices:
Attention:
Telecopy:
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EXHIBIT 4.5
REGISTERED REGISTERED
MONSANTO COMPANY
5.95% JUNIOR SUBORDINATED DEFERRABLE
DEBENTURES DUE NOVEMBER 30, 2003
No. 1 CUSIP No. 611662 AU 1
US$700,000,000
MONSANTO COMPANY, a corporation duly organized and existing under the
laws of Delaware (herein called the "Company," which term includes any successor
corporation under the Indenture hereinafter referred to for value received,
hereby promises to pay to First Union National Bank as Collateral Agent (the
"Collateral Agent") or registered assigns, (i) the principal sum of Seven
Hundred Million Dollars ($700,000,000) on November 30, 2003, (the "Maturity
Date") unless previously repurchased as provided herein, (ii) interest (a) on
said principal sum from November 30, 1998, or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on February 28, May 31, August 31 and November 30, of each
year, commencing on February 28, 1999, initially at the rate of 5.95% per annum
(the "Initial Interest Rate") until the Market Rate Increase Date (as
hereinafter defined), and if the Rate Increase Agent (as hereinafter defined)
establishes a Market Increase Rate (as hereinafter defined) at such Market
Increase Rate (whichever of the Initial Interest Rate or the Market Increase
Rate as may be in effect at any applicable time being referred to herein as the
"Interest Rate") thereafter until the principal hereof shall have become due and
payable, (b) at the Interest Rate on any overdue principal and premium, if any,
and (c) at the Interest Rate, compounded quarterly on any overdue installment of
interest and (iii) the Put Price (as hereinafter defined) with respect hereto,
in each case, without duplication and to the extent that payment of such
interest is enforceable under applicable law. The amount of interest payable on
any Interest Payment Date shall be computed on the basis of a 360-day year
consisting of twelve 30-day months. In the event that any date on which
principal of (or premium, if any), or interest on or the Put Price with respect
to this 5.95% Junior Subordinated Deferrable Debenture due November 30, 2003
(the "Debenture") is not a Business Day, then payment payable on such date will
be made on the next succeeding day that is a Business Day (and to the extent
such payment is made on the next succeeding Business Day, without any interest
or other payment in respect of any such delay), except that, if such Business
Day is in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on the date such payment was originally payable.
The interest so payable and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Debenture is registered at the close of business on
the Regular Record Date for such interest payment, which shall be one Business
Day prior to the relevant Interest Payment Date unless this Debenture is
distributed and is issued in certificated form, in which case the record date
for such interest installment shall be the first day of the month in which the
relevant Interest Payment Date falls.
<PAGE>
Except as otherwise provided in the Indenture, 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 by virtue of their having been such Holder as
may either be paid to the Person in whose name this Debenture 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 (as hereinafter defined), notice whereof is
to be given to Holders of Debentures not less than 10 calendar 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
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture. The principal of (and
premium, if any) and the interest on and the Put Price with respect to this
Debenture shall be payable at the office or agency of the Trustee in The City of
New York or at the office(s) of such Paying Agent(s) as the Company may
designate from time to time maintained for that purpose in any coin or currency
of the United States of America that at the time of payment is legal tender for
payment of public and private debts; provided, however, that payment of interest
-------- -------
may be made at the option of the Company by check mailed to the registered
Holder at such address as shall appear in the Register or by transfer to an
account maintained by the Holder entitled thereto as specified in the Register,
provided that proper instructions have been received by the relevant record
date. Notwithstanding the foregoing so long as the holder of this Debenture is
the Trustee, the payment of the principal of (and premium, if any) and interest
on this Debenture will be made in immediately available funds at such place and
to such account as may be designated by the Trustee.
The interest rate paid on the Debentures is subject to increase in
accordance with the procedures set forth herein. By 9:30 a.m. New York City
time, on the Market Rate Increase Date a nationally recognized investment
banking firm chosen by the Company (the "Rate Increase Agent") will determine
whether the then current market value of the Debentures, is at least equal to
100.25% of the Cash Equivalent of the Aggregate Call Option Consideration (as
hereinafter defined). If the Rate Increase Agent determines that the current
aggregate market value of the Debentures is at least equal to 100.25% of the
Cash Equivalent of the Aggregate Call Option Exercise Consideration (or the
interest rate paid on the Debentures is already equal to or greater than the
Maximum Debenture Rate (as hereinafter defined)), interest on the Debentures
will continue to accrue at the Initial Interest Rate. If the Rate Increase
Agent determines that the current aggregate market value of the Debentures is
not at least equal to 100.25% of the Cash Equivalent of the Aggregate Call
Option Exercise Consideration (and the interest rate is less than the Maximum
Debenture Rate), the Rate Increase Agent will, by 9:30 a.m., New York City time,
on the Market Rate Increase Date, select an increased rate equal to the lower of
(a) the rate that the Rate Increase Agent determines is sufficient to cause the
then current aggregate market value of such Debentures to be at least equal to
100.25% of the Cash Equivalent of the Aggregate Call Option Exercise
Consideration and (b) the Maximum Debenture Rate, and the interest rate will
thereupon become that increased rate (the "Market Increase Rate"). Upon any
such increase of the Market Increase Rate, the Rate Increase Agent shall notify
the Company and the Call Option Holder (as hereinafter defined) of such
increased rate.
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<PAGE>
"Cash Equivalent of the Aggregate Call Option Exercise Consideration"
means the cash value on the Market Rate Increase Date of a package of
consideration (the "Aggregate Call Option Exercise Consideration"), which
includes U.S. Treasury Strips, U.S. Treasury Bills or other U.S. Treasury
Securities (any of the foregoing being referred to herein as the "Treasury
Securities"), that will provide payments matching the aggregate interest due on
the Debentures through November 30, 2001, assuming that (a) the Treasury
Securities included in the Aggregate Call Option Exercise Consideration are
highly liquid Treasury Securities maturing on or within 35 days prior to
November 30, 2001 (any such Treasury Securities will be designated in good faith
by the holder of the call options on the Debentures (the "Call Option Holder")
in a notice delivered to the Rate Increase Agent by 8:30 a.m., New York City
time, on the Market Rate Increase Date or, if the Call Option Holder fails to so
designate such Treasury Securities, as designated in good faith by the Rate
Increase Agent, in either case in a manner intended to minimize the Cash
Equivalent of the Aggregate Call Option Exercise Consideration) and (b) such
Treasury Securities are valued based on the ask-side price thereof at 9:00 a.m.,
New York City time, on the Market Rate Increase Date (as determined on a same
day settlement basis by a reasonable and customary means selected in good faith
by the Rate Increase Agent and notified to the Call Option Holder prior thereto)
plus interest accrued thereon to such date.
"Maximum Debenture Rate" means (a) the yield to maturity (calculated
in accordance with standard market price) corresponding to the bid-side price at
9:00 a.m., New York City time, on the Market Rate Increase Date (as determined
by a reasonable and customary means selected in good faith by the Rate Increase
Agent and notified to the Call Option Holder prior thereto) of highly liquid
Treasury Securities maturing on or around the Maturity Date as selected in good
faith by the Rate Increase Agent plus (b) 350 basis points.
"Market Rate Increase Date" means August 31, 2001 (or, if such day is
not a Trading Day (as hereinafter defined), the next succeeding Trading Day).
"Trading Day" means a day on which the $2.00 par value common stock of
the Company (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.
If the Debentures are not otherwise pledged as collateral for the
Company's Units, the Debentures may be represented by one or more global
certificates registered in the name of Cede & Co. or other nominee of The
Depository Trust Company.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all present and future Senior Indebtedness (as
hereinafter defined), and this Debenture is issued subject to the provisions of
the Indenture with respect thereto. Each Holder of this Debenture by accepting
the same, (a) agrees to and shall be bound by such provisions, (b) authorizes
and directs the Trustee on
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<PAGE>
his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder
hereof, by his or her acceptance hereof, hereby waives all notice of the
acceptance of the subordination provisions contained herein and in the Indenture
by each holder of Senior Indebtedness, whether now outstanding or hereafter
incurred, and waives reliance by each such holder upon said provisions.
"Senior Indebtedness" shall mean, with respect to the Company, and
without duplication, the principal, premium (if any) and unpaid interest on all
present and future (1) indebtedness of the Company for borrowed money, (2)
obligations of the Company evidenced by bonds, debentures, notes or similar
instruments, (3) 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), (4) obligations of the
Company as lessee under leases required to be capitalized on the balance sheet
of the lessee under generally accepted accounting principles, (5) 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 (1) through (4) above, and (6)
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 kind referred to in clauses (1) through (5) 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. Senior Indebtedness shall continue to be Senior Indebtedness and be
entitled to the benefits of the subordination provisions irrespective of any
amendment, modification or waiver of any term of such Senior Indebtedness.
This Debenture is one of a duly authorized issue of securities of the
Company (the "Securities") issued under an Indenture, dated as of November 30,
1998, as amended or supplemented from time to time (the "Indenture"), between
the Company and The First National Bank of Chicago, as Trustee (the "Trustee"),
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
Debentures and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Debenture is one of the Securities designated
on the face hereof limited in aggregate principal amount to $700,000,000.
Any one or more of the following described events with respect to the
Debentures constitutes an "Event of Default" (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body): (a)
failure for 30 days to pay any interest on the Debentures when due (subject to
the deferral of any due date in the case of an Extension Period (as hereinafter
defined)); or (b) failure to pay any
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<PAGE>
principal on the Debentures when due at maturity or (c) failure to pay the Put
Price when due upon exercise of a Put Option (as hereafter defined); or (d)
failure to observe or perform any other of the covenants contained in the
Indenture for 90 days after written notice to the Company from the Trustee or to
the Company and the Trustee from the holders of at least 25% in principal amount
of the Debentures; or (e) the events of bankruptcy, insolvency or reorganization
of the Company set forth as Events of Default under the Indenture.
If any Event of Default, as provided for in the Indenture, with
respect to the Debentures shall occur and be continuing, the principal of the
Debentures may be declared due and payable in the manner and with the effect
provided in the Indenture.
So long as no Event of Default has occurred and is continuing, the
Company will have the right at any time during the term of Debentures to defer
the payment of interest at any time or from time to time for a period not
extending beyond the Maturity Date (each such period of deferral, an "Extension
Period") or ending on a date other than an Interest Payment Date. At the end of
an Extension Period, the Company must pay all interest then accrued and unpaid
(together with interest thereon accrued at a rate of 5.95% per annum (plus, for
the period after the Market Rate Increase Date, the difference, if any, between
the Market Increase Rate and the Initial Interest Rate) compounded on each
succeeding Interest Payment Date). During an Extension Period, interest will
continue to accrue and Holders of Debentures will be required to accrue interest
income for United States Federal income tax purposes prior to the receipt of
cash attributable to such income except to the extent that tax treatment changes
as a matter of law.
Prior to the expiration of any such Extension Period, the Company may
further extend such Extension Period, provided that such Extension Period,
together with all such previous and further extensions within such Extension
Periods, (i) shall not end on any date other than an Interest Payment Date and
(ii) shall not extend beyond the Maturity Date. Upon the termination of any
such Extension Period and the payment of all amounts then due on any Interest
Payment Date, the Company may elect to begin a new Extension Period, subject to
the above requirements. No interest shall be due and payable during an
Extension Period, except at the end thereof. The Company must give the Trustee
written notice of its election of any Extension Period (or an extension thereof)
at least five Business Days prior to the earlier of (a) the date the interest on
the Debentures would have been payable except for the election to begin or
extend such Extension Period, (b) the date the Company is required to give
notice to any securities exchange or to holders of Debentures of the Regular
Record Date or the date such interest is payable and (c) such Regular Record
Date. The Company shall give notice of the Company's election to begin or
extend a new Extension Period to the holders of the Debentures. There is no
limitation on the number of times that the Company may elect to begin an
Extension Period.
The Company has agreed that it will not (a) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to any of the Company's capital stock, (b) make
any payment of principal, interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Company that rank pari passu with or
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<PAGE>
junior in right of payment to the Debentures or (c) make any guarantee payments
with respect to any guarantee by the Company of any securities of any subsidiary
of the Company if such guarantee rank pari passu or junior in right of payment
to the Debentures (other than, in the case of clauses (a), (b) and (c), (i)
dividends or distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, common stock of the Company, (ii) any
declaration of a dividend in connection with the implementation of a
stockholder's rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights pursuant thereto,
(iii) as a result of a reclassification of the Company's capital stock solely
into shares of one or more classes or series of the Company's capital stock or
the exchange or conversion of one class or series of the Company's capital
stock for another class or series of the Company's capital stock, (iv) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged and (v) purchases of common stock in
connection with the satisfaction by the Company of its obligations under any of
the Company's benefit plans for its and its Subsidiaries' directors, officers or
employees or any of the Company's dividend reinvestment plans).
Each Holder of Debentures will have the right (a "Put Option") to
require the Company to repurchase such Debentures, on November 30, 2001 or, in
the event of a Cash Merger, on the Early Settlement Date (as defined in the
Master Unit Agreement, dated as of November 30, 1998, between the Company and
The First National Bank of Chicago, as Unit Agent) (either such date, the "Put
Option Date"), for a purchase price (the "Put Price") equal to the aggregate
principal amount thereof plus unpaid interest accrued thereon up to but not
including the Put Option Date, but only if the cash received on the exercise of
such option is used to settle the purchase contracts between the Company and The
First National Bank of Chicago, as Unit Agent, secured thereby.
The Holder of this Debenture and the Put Agent (the "Put Agent" which
initially will be First Union National Bank and subsequently, any successor
thereto as Collateral Agent), on behalf of Holders whose Debentures have been
delivered to the Put Agent for the purpose of exercising the Put Option related
to such Debentures, may exercise the Put Option related to this Debenture by
presenting and surrendering this Debenture, at the offices of the Trustee, with
the form of "Notice of Exercise of Put Right" on the reverse side of this
Debenture completed and executed as indicated, by 10:00 a.m., New York City
time, on the Put Option Date.
In the event of the exercise of the Put Option with respect to this
Debenture in part only, a new Debenture or Debentures for the portion hereof not
repurchased will be issued in the name of the Holder upon the cancellation
hereof.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company with the consent of the
Holders of not less than a majority in principal amount of the outstanding
Securities of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the outstanding Securities of
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<PAGE>
each series, on behalf of the Holders of all Securities of such series, to
waive, with respect to the Securities of such series, 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 Debenture will be conclusive and binding upon such Holder and upon all
future Holders of this Debenture and of any Debenture 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 Debenture.
Holders of Debentures may not enforce their rights pursuant to the
Indenture or the Debentures except as provided in the Indenture. No reference
herein to the Indenture and no provision of this Debenture or of the Indenture
will alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of, and premium, if any, and interest on and
the Put Price with respect to this Debenture at the times, places and rates,
herein prescribed.
The Debentures of this series are issuable only in registered form,
without coupons, in minimum denominations of $1,000 and integral multiples
thereof. As provided in the Indenture and subject to certain limitations
therein specified and to the limitations described below, if applicable,
Debentures of this series are exchangeable for Debentures of this series of like
aggregate principal amount of a different authorized denomination, as requested
by the Holder, surrendering the same.
As provided in the Indenture and subject to certain limitations
therein specified and to the limitations described below, if applicable, the
transfer of this Debenture is registerable in the Register upon surrender of
this Debenture for registration of transfer at the office or agency of the
Company maintained for that purpose duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Registrar (which will initially be the Trustee at its principal corporate trust
office located in Chicago, Illinois) duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures of
this series with like terms and conditions, of authorized denominations and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees.
Prior to due presentment of this Debenture for registration of
transfer, the Company and any agent of the Company may treat the Person in whose
name this Debenture is registered as the owner hereof for all purposes, whether
or not this Debenture is overdue and notwithstanding any notation of ownership
or other writing hereon, and none of the Company or any such agent will be
affected by notice to the contrary.
Unless the certificate of authentication hereof has been executed by
the Trustee referred to herein, or its successor as Trustee, or its
Authenticating Agent, by manual signature or an authorized signatory, this
Debenture will not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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<PAGE>
No recourse shall be had for the repayment of the principal of or
premium, if any, or interest on or the Put Price in respect of this Debenture,
or for any claim based hereon, or otherwise in respect hereof, or based on or in
respect of the Indenture, against any incorporator, stockholder, officer or
director, past, present or future, as such, of the Company or any predecessor or
successor Person, whether by virtue of any constitution, statute or rule of law,
or by the enforcement of an assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issuance hereof, expressly waived and released.
The Company agrees, and each holder of a beneficial interest in any
Debentures shall by the acquisition of such interest be deemed to have agreed,
that for United States Federal income tax purposes the Debentures are intended
to constitute indebtedness, except to the extent that the tax treatment of the
Debenture changes as a matter of law.
The Indenture and the Debentures will be governed by and construed in
accordance with the laws of the State of New York.
All capitalized terms used but not defined in this Debenture will have
the meanings assigned to them in the Indenture; and all references in the
Indenture to "Security" or "Securities" will be deemed to include this
Debenture.
The following legend is provided in accordance with Treasury
Regulation (S)1:1275-3(b):
This Debenture was issued with original issue discount ("OID"). The
Company will promptly, beginning no later than 10 days after the issue
date of this Debenture, make available to a Holder upon request the
information specified in Treasury Regulation section 1.1275-
3(b)(1)(i). Please send only such requests to Monsanto Company,
Attention: Vice President - Tax.
-8-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Date: November __, 1998
MONSANTO COMPANY
By:______________________
[SEAL]
Attest:
By:_______________________
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<PAGE>
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: November __, 1998 THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By:______________________________
Authorized Officer
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<PAGE>
ASSIGNMENT
_____________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) the Debentures to:
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
_________________________________________ agent to transfer this Debenture on
the books of the Company. The agent may substitute another to act for him or
her.
Date: _____________________________________
Signature: ____________________________________________________________________
(Sign exactly as your name appears on the other side of this
Debenture)
Signature Guarantee*:___________________________________________________________
_________
* Signature must be guaranteed by an "eligible guarantor institution" that is a
bank, stockholder, savings and loan association or credit union meeting the
requirements of the Registrar, which requirements include membership
participation in the Securities Transfer Agents Medallion Program ("STAMP") or
such other "signature guarantee program" as may be determined by the Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities and Exchange Act of 1934, as amended.
<PAGE>
NOTICE OF EXERCISE OF PUT RIGHT
The undersigned holder of this Debenture (or the Put Agent on behalf
of such holder) hereby gives notice and irrevocably exercises the Put requiring
the Company to repurchase this Debenture, or the portion designated below, for
the aggregate principal amount thereof plus any unpaid interest accrued on this
Debenture pursuant to the terms and subject to the conditions of the Debenture
and the Indenture, dated as of November 30, 1998 (the "Indenture") between the
Company and The First National Bank of Chicago, as trustee by 10:00 a.m., New
York time, on November 30, 2001. If any portion of the Debenture not to be
repurchased is to be registered in the name of a Person other than the
undersigned, the undersigned will pay any transfer tax payable incident thereto.
Date: ________________________________________
Principal amount of the Debenture to be repurchased ($1,000 or integral
multiples thereof): ______________
Signature:______________________________________________________________
(Sign exactly as your name appears on the other side of this Debenture)
Please print or type name and address, including zip code, and social security
or other identifying number
__________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
If any portion of the Debenture is to be registered in the name of and delivered
to a Person other than the holder hereof, please print or type name and address,
including zip code, and social security or other identifying number
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Signature Guarantee*:______________________________________________________
_________
* If this notice of Exercise of Put Right is signed by any Person other than
the registered holder of this Debenture, the Signature must be guaranteed by an
"eligible guarantor institution" that is a bank, stockholder, savings and loan
association or credit union meeting the requirements of the Registrar, which
requirements include membership or participation in the Securities Transfer
Agents Medallion Program ("STAMP") or such other "signature guarantee program"
as may be determined by the Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities and Exchange Act of 1934, as
amended.
<PAGE>
EXHIBIT 4.6
-----------
THIS UNIT CERTIFICATE IS A GLOBAL UNIT CERTIFICATE WITHIN THE MEANING OF THE
MASTER UNIT AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE THEREOF. THIS UNIT CERTIFICATE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A UNIT CERTIFICATE REGISTERED, AND NO TRANSFER OF THIS UNIT
CERTIFICATE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON
OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE MASTER UNIT AGREEMENT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST
HEREIN.
MONSANTO COMPANY
6.50% ADJUSTABLE CONVERSION-RATE EQUITY SECURITY UNITS
(STATED AMOUNT $40.00 PER NORMAL UNIT)
No. 2 CUSIP No. 611662 30 5
17,500,000 Normal Units
This Unit Certificate certifies that Cede & Co. is the registered
Holder of the number of Normal Units set forth above. Each Normal Unit
represents the right to purchase Common Stock under a Purchase Contract with
Monsanto Company, a Delaware corporation (the "Company"), together with
ownership of the Junior Subordinated Deferrable Debentures (the "Debentures") or
other Pledged Securities pledged to secure the obligations referred to in (a)
and (b) below, subject to (a) the obligations owed to the Company under such
Purchase Contract, (b) for so long as any Call Options remain exercisable, the
obligations owed to the Call Option Holder under a Call Option and (c) the
pledge arrangements securing the foregoing obligations.
Each Purchase Contract evidenced hereby is governed by and set forth
in a Master Unit Agreement, dated as of November 30, 1998 (the "Master Unit
Agreement"), between the Company and The First National Bank of Chicago, as unit
agent (herein called the "Unit Agent"). All terms used herein which are not
defined herein and which are defined in the Master Unit
<PAGE>
Agreement have the meanings set forth therein. Each Call Option evidenced
hereby is governed by the Call Option Agreement. The Pledge evidenced hereby is
governed by the Pledge Agreement. Reference is hereby made to the Master Unit
Agreement, the Call Option Agreement and the Pledge Agreement, and any
supplemental agreements thereto, for a description of the respective rights,
limitations of rights, obligations, duties and immunities thereunder of the Unit
Agent, the Company, the Call Option Holder, the Collateral Agent and the
Holders. The summary contained herein is qualified in its entirety by the
provisions of the Principal Agreements, and the Principal Agreements shall
govern the rights of the parties to the extent that there is any conflict
between such summary and such provisions.
Each Purchase Contract evidenced hereby obligates the Holder of this
Unit Certificate to purchase, and the Company to sell, on November 30, 2001 (the
"Stock Purchase Date"), at a price equal to $40.00 per Unit (the "Stated
Amount"), a number of shares of Common Stock, par value $2.00 per share, having
such terms as set forth in the Company's certificate of incorporation, as
amended from time to time ("Common Stock"), of the Company equal to the
Settlement Rate, unless on or prior to the Stock Purchase Date there shall have
occurred a Termination Event. The "Settlement Rate" is equal to (a) if the
Applicable Market Value (as defined in the Master Unit Agreement) is greater
than or equal to $48.80 (the "Threshold Appreciation Price"), 0.8197 of a share
of Common Stock per Purchase Contract, (b) if the Applicable Market Value is
less than 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 to the nearest
1/10,000th of a share or, if there is no nearest 1/10,000th of a share, rounded
downward to the nearest 1/10,000th of a share) 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 Master
Unit Agreement. No fractional shares of Common Stock will be issued upon
settlement of Purchase Contracts, but instead of issuing any fractional interest
the Company shall make a cash payment as provided in the Master Unit Agreement.
The purchase price for the shares of Common Stock to be purchased pursuant to
each Purchase Contract evidenced hereby, if not paid by 10:00 a.m., New York
City time, on the Stock Purchase Date, shall be paid by application of payments
received by the Company on the Stock Purchase Date from the Collateral Agent
pursuant to the Pledge Agreement in respect of the Pledged Securities pledged to
secure such Holder's obligations under such Purchase Contract.
The Purchase Contracts and the obligations and rights of the Company
and the Holders thereunder, including, without limitation, the rights and
obligations to receive and pay accrued or deferred Contract Fees, shall
immediately and automatically terminate, without the necessity of any notice or
action by any Holder, the Unit Agent or the Company, if, on or prior to the
Stock Purchase Date, a Termination Event shall have occurred. Upon and after
the occurrence of a Termination Event, the Collateral Agent shall release the
Pledged Securities from the Pledge. The Normal Units shall thereafter represent
the right to receive the Pledged Securities forming a part of such Normal Units
in accordance with the provisions of the Master Unit Agreement and the Pledge
Agreement.
-2-
<PAGE>
The Call Options evidenced hereby entitle the Call Option Holder to
acquire the Junior Subordinated Deferrable Debentures (the "Debentures")
evidenced hereby on or before August 31, 2001 unless prior to the exercise
thereof there shall have occurred a Termination Event. The Call Option Holder
may exercise such Call Options only in whole together with the Call Options
underlying the other Normal Units, by delivering to the Unit Agent a notice of
exercise and delivering to the Unit Agent the Aggregate Call Option Exercise
Consideration, whereupon the Debentures underlying the Normal Units will be
released from the Pledge and the Treasury Securities constituting all or part of
the Aggregate Call Option Exercise Consideration delivered to the Collateral
Agent will be substituted as the Pledged Securities underlying the Normal Units.
The Company shall pay, on each February 28, May 31, August 31 and
November 30, commencing February 28, 1999 (each, a "Quarterly Payment Date"), in
respect of each Purchase Contract evidenced hereby, a fee (the "Contract Fee")
accruing on the Stated Amount of such Unit from and including the date of first
issuance of any Units at a rate per annum equal to 0.55% (the "Contract Fee
Rate") (computed on the basis of a 360-day year of twelve 30-day months and
subject to deferral as described in the Master Unit Agreement), plus any
additional fees accrued thereon pursuant to Section 503 of the Master Unit
Agreement. The Company's obligations with respect to Contract Fees shall be, to
the extent provided in the Master Unit Agreement, subordinate and subject in
right of payment to all Senior Indebtedness.
Payments due to the Holder in respect of the Normal Units evidenced
hereby will be payable to the Person in whose name this Unit Certificate is
registered at the close of business on the Record Date next preceding the
relevant payment date.
The transfer of any Unit Certificate will be registered and Unit
Certificates may be exchanged as provided in the Master Unit Agreement. The
Unit Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents permitted by the Master Unit Agreement. No
service charge shall be required for any such registration of transfer or
exchange, but the Company and the Unit Agent may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Except as provided in the Master Unit Agreement in connection with a
Stripped Unit Creation, for so long as the Purchase Contract underlying a Normal
Unit remains in effect, such Normal Unit shall not be separable into its
constituent parts, and the rights and obligations of the Holder of such Normal
Unit in respect of the Pledged Securities and Purchase Contract constituting
such Normal Unit may be transferred and exchanged only as an integrated Normal
Unit.
Upon registration of transfer of this Unit Certificate, the transferee
shall be bound (without the necessity of any other action on the part of such
transferee) by the terms of the Purchase Contracts and Call Options evidenced
hereby and by the Pledge Agreement, and the transferor shall be released from
such obligations. 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.
-3-
<PAGE>
The Holder of this Unit Certificate, by his acceptance hereof,
irrevocably authorizes the Unit Agent to enter into and perform the related
Purchase Contracts and Call Options 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
and Call Options, consents to the provisions of the Principal Agreements,
irrevocably authorizes the Unit Agent to enter into and perform the Call Option
Agreement and the Pledge Agreement on his behalf as his attorney-in-fact,
irrevocably authorizes the Collateral Agent, acting as Put Agent, to enter into
and perform the Debenture Put Option on his behalf as his attorney-in-fact and
consents to and agrees to be bound by the Pledge evidenced hereby pursuant to
the Pledge Agreement.
Subject to certain exceptions, the provisions of the Principal
Agreements may be amended with the consent of the Holders of at least a majority
of the Outstanding Units or, if the amendment affects only the Holders of the
Normal Units or only the Holders of the Stripped Units, at least a majority of
the Outstanding Units comprising Normal Units or Stripped Units, as the case may
be.
THE PURCHASE CONTRACTS AND CALL OPTIONS SHALL FOR ALL PURPOSES BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
The Company, the Unit Agent and any agent of the Company or the Unit
Agent may treat the Person in whose name this Unit Certificate is registered as
the owner of the Normal Units evidenced hereby for the purpose of receiving
payments of distributions or interest on the Pledged Securities, receiving the
rights and performing the obligations under 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 Unit 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.
Copies of the Principal Agreements are available for inspection at the
offices of the Unit Agent.
Unless the certificate of authentication hereon has been executed by
the Unit Agent by manual signature, this Unit Certificate shall not be entitled
to any benefit under the Principal Agreements or be valid or obligatory for any
purpose.
-4-
<PAGE>
IN WITNESS WHEREOF, the Company and the Holder hereby agree to their
respective obligations under the Purchase Contracts evidenced by this
instrument, and the Holder hereby acknowledges that the Pledged Securities
evidenced by this instrument are subject to the Pledge under the Pledge
Agreement.
MONSANTO COMPANY
By:_____________________________
Attest: ______________________________________
HOLDER SPECIFIED ABOVE
By: THE FIRST NATIONAL
BANK OF CHICAGO,
as Attorney-in-Fact of such Holder
By:_____________________________
IN WITNESS WHEREOF, the Holder hereby agrees, for the benefit of the
Call Option Holder, to its obligations under any Call Options evidenced by this
instrument, and the Holder hereby acknowledges, for the benefit of the Call
Option Holder, that the Pledged Securities evidenced by this instrument are
subject to the Pledge under the Pledge Agreement.
HOLDER SPECIFIED ABOVE
By: THE FIRST NATIONAL
BANK OF CHICAGO,
as Attorney-in-Fact of such Holder
By:______________________________
Dated:
Unit Agent's Certificate of Authentication
This is one of the Unit Certificates referred to in the within
mentioned Master Unit Agreement.
THE FIRST NATIONAL BANK OF CHICAGO,
as Unit Agent
By: ________________________________
-5-
<PAGE>
SETTLEMENT INSTRUCTIONS
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Stock Purchase Date of the
Purchase Contracts underlying the number of Normal Units evidenced by this Unit
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 name of REGISTERED HOLDER
and delivered to a Person other than the
Holder, please print such Person's name and Please print name and address of
address: Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
_________________
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Common Stock is to be delivered other than to, and in
the name of, the registered Holder.
<PAGE>
ELECTION TO SETTLE EARLY
The undersigned Holder directs that a certificate for shares of Common
Stock deliverable upon settlement on or after the Special Early Settlement Date
of the Purchase Contracts underlying the number of Normal Units evidenced by
this Unit Certificate be registered in the name of, and delivered 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 name of REGISTERED HOLDER
and delivered to a Person other than the
Holder, please print such Person's name and Please print name and address of
address: Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
__________________
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if Common Stock is to be delivered other than to, and in
the name of, the registered Holder.
<PAGE>
REQUEST TO CREATE STRIPPED UNITS
The undersigned Holder directs that (a) the Pledged Securities
underlying the number of Normal Units indicated below (which number does not
exceed the number of Normal Units evidenced by this Unit Certificate) be
released from the Pledge and registered in the name of, and delivered to, the
undersigned at the address indicated below unless a different name and address
have been indicated below and (b) a corresponding number of Stripped Units be
registered in the name of, and delivered to, the undersigned at the address
indicated below unless a different name and address have been indicated below.
If the released Pledged Securities or the Stripped Units are to be registered in
the name of a Person other than the undersigned, the undersigned will pay any
transfer tax payable incident thereto.
The undersigned confirms that the requisite Treasury Securities, any
required cash and the instrument from the Call Option Holder have been delivered
to the Collateral Agent.
Dated: _________________________ _____________________________________
Signature*
If released Pledged Securities are to be REGISTERED HOLDER
registered in the name of and delivered to a
Person other than the Holder, please print Please print name and address of
such Person's name and address: Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
<PAGE>
If Stripped Units 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 Please print name and address of
and address: Registered Holder:
Name Name
Address Address
Social Security or other Taxpayer
Identification Number, if any
________________
* Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with
membership in an approved signature medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15 if Common Stock is to be
delivered other than to, and in the name of, the registered Holder.
<PAGE>
Exhibit 4.7
-----------
================================================================================
MONSANTO COMPANY
TO
THE BANK OF NEW YORK
as Trustee
__________
INDENTURE
Dated as of December 1, 1998
Providing for Issuance of 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
(S) 316(a)..................................................................101
(a)(1)(A).......................................................502, 512
(a)(1)(B)............................................................513
(a)(2)....................................................Not Applicable
(b)..................................................................508
(c)...............................................................104(c)
</TABLE>
-i-
<PAGE>
<TABLE>
<S> <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
Section 101. Definitions................................................ 1
Section 102. Compliance Certificates and Opinions....................... 10
Section 103. Form of Documents Delivered to Trustee..................... 11
Section 104. Acts of Holders; Record Dates.............................. 11
Section 105. Notices, Etc., to Trustee and Company...................... 12
Section 106. Notice to Holders; Waiver.................................. 13
Section 107. Conflict with Trust Indenture Act.......................... 13
Section 108. Effect of Headings and Table of Contents................... 13
Section 109. Successors and Assigns..................................... 13
Section 110. Separability Clause........................................ 14
Section 111. Benefits of Indenture...................................... 14
Section 112. Governing Law.............................................. 14
Section 113. Legal Holidays............................................. 14
ARTICLE TWO
Security Forms
Section 201. Forms Generally............................................ 14
Section 202. Form of Face of Security................................... 15
Section 203. Form of Reverse of Security................................ 18
Section 204. Additional Provisions Required in Book-Entry Security...... 25
Section 205. Form of Trustee's Certificate of Authentication............ 26
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series....................... 26
Section 302. Denominations.............................................. 29
Section 303. Execution, Authentication, Delivery and Dating............. 29
Section 304. Temporary Securities....................................... 31
Section 305. Registration, Registration of Transfer and Exchange;
Restrictions on Transfer................................... 32
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C>
Section 306. Mutilated, Destroyed, Lost and Stolen Securities........... 38
Section 307. Payment of Interest; Interest Rights Preserved............. 39
Section 308. Persons Deemed Owners...................................... 40
Section 309. Cancellation............................................... 41
Section 310. Computation of Interest.................................... 41
Section 311. CUSIP Numbers.............................................. 41
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture..................... 41
Section 402. Application of Trust Money.................................. 42
ARTICLE FIVE
Remedies
Section 501. Events of Default.......................................... 43
Section 502. Acceleration of Maturity; Rescission and Annulment......... 44
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee................................................. 45
Section 504. Trustee May File Proofs of Claim........................... 45
Section 505. Trustee May Enforce Claims Without Possession
of Securities.............................................. 46
Section 506. Application of Money Collected............................. 46
Section 507. Limitation on Suits........................................ 47
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................... 47
Section 509. Restoration of Rights and Remedies......................... 47
Section 510. Rights and Remedies Cumulative............................. 48
Section 511. Delay or Omission Not Waiver............................... 48
Section 512. Control by Holders......................................... 48
Section 513. Waiver of Past Defaults.................................... 48
Section 514. Undertaking for Costs...................................... 49
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities........................ 49
Section 602. Notice of Defaults......................................... 50
Section 603. Certain Rights of Trustee.................................. 50
Section 604. Not Responsible for Recitals or Issuance of Securities..... 51
Section 605. May Hold Securities and Serve as Trustee Under
Other Indentures........................................... 51
</TABLE>
-iv-
<PAGE>
<TABLE>
<S> <C>
Section 606. Money Held in Trust........................................ 52
Section 607. Compensation and Reimbursement............................. 52
Section 608. Disqualification; Conflicting Interests.................... 53
Section 609. Corporate Trustee Required; Eligibility.................... 53
Section 610. Resignation and Removal; Appointment of Successor.......... 53
Section 611. Acceptance of Appointment by Successor..................... 55
Section 612. Merger, Conversion, Consolidation or Succession to
Business................................................... 56
Section 613. Preferential Collection of Claims Against Company.......... 56
Section 614. Investment of Certain Payments Held by the Trustee......... 56
Section 615. Appointment of Authenticating Agent........................ 57
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of Holders.. 58
Section 702. Preservation of Information; Communications to Holders..... 59
Section 703. Reports by Trustee......................................... 59
Section 704. Reports by Company......................................... 60
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain Terms....... 60
Section 802. Successor Substituted...................................... 61
Section 803. Officers' Certificate and Opinion of Counsel............... 61
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Holders......... 61
Section 902. Supplemental Indentures with Consent of Holders............ 62
Section 903. Execution of Supplemental Indentures....................... 63
Section 904. Effect of Supplemental Indentures.......................... 64
Section 905. Conformity with Trust Indenture Act........................ 64
Section 906. Reference in Securities to Supplemental Indentures......... 64
ARTICLE TEN
Covenants
</TABLE>
-v-
<PAGE>
<TABLE>
<S> <C>
Section 1001. Payment of Principal, Premium and Interest................ 64
Section 1002. Maintenance of Office or Agency........................... 64
Section 1003. Money for Securities Payments to Be Held in Trust......... 65
Section 1004. Payment of Taxes and Other Claims......................... 66
Section 1005. Maintenance of Operating Properties....................... 67
Section 1006. Corporate Existence....................................... 67
Section 1007. Limitation upon Liens..................................... 67
Section 1008. Limitation upon Sales and Leasebacks...................... 69
Section 1009. Waiver of Certain Covenants............................... 70
Section 1010. Compliance Certificate.................................... 71
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.................................. 71
Section 1102. Election to Redeem: Notice to Trustee..................... 71
Section 1103. Selection by Trustee of Securities to Be Redeemed......... 72
Section 1104. Notice of Redemption...................................... 72
Section 1105. Deposit of Redemption Price............................... 73
Section 1106. Securities Payable on Redemption Date..................... 73
Section 1107. Securities Redeemed in Part............................... 74
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.................................. 74
Section 1202. Satisfaction of Sinking Fund Payments with Securities..... 74
Section 1203. Redemption of Securities for Sinking Fund................. 75
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance......................... 75
Section 1302. Defeasance and Discharge.................................. 76
Section 1303. Covenant Defeasance....................................... 76
Section 1304. Conditions to Defeasance or Covenant Defeasance........... 77
Section 1305. Deposited Money and U.S. Government Obligations to be
Held in Trust; Other Miscellaneous Provisions............. 79
</TABLE>
-vi-
<PAGE>
<TABLE>
<S> <C>
Section 1306. Reinstatement.............................................. 79
Section 1307. Qualifying Trustee......................................... 79
ARTICLE FOURTEEN
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 1401. Exemption from Individual Liability........................ 80
Schedule 305(h)(v)......................................................... S-1
</TABLE>
- ----------------
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 December 1, 1998, 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 Bank of New York, a New
York banking corporation, 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 (i) from time to time in one or more
transactions either exempt from, or not subject to, the registration provisions
of the Securities Act of 1933, as amended (the "Securities Act"), of its
unsecured debentures, notes or other evidences of indebtedness (the "Offered
Securities") and (ii) in one or more exchange offers registered under the
Securities Act for the then outstanding Offered Securities, of substantially
identical series of unsecured debentures, notes or other evidences of
indebtedness (except for the absence of the legend set forth in Section 305
manifesting the transfer restrictions and the terms with respect to the
liquidated damage payments applicable to the Offered Securities) (the "Exchange
Securities" and, together with the "Offered Securities," the "Securities").
The Company has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities.
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;
<PAGE>
(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
(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.
-2-
<PAGE>
"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 Article
Two hereof that contains the legend and additional schedule referred to in
Section 204 hereof, 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 Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its 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 101 Barclay Street, New York, New York 10286.
"Debt" has the meaning specified in Section 1007.
-3-
<PAGE>
"Default Day" has the meaning specified in Section 202.
"Defaulted Interest" has the meaning specified in Section 307.
"Definitive Securities" means Securities that are in the form of the
Securities set forth in Article Two hereof, that do not include the information
called for by Section 204.
"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
Exchange Act; and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any series shall mean the
Depositary with respect to the Securities of such series.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offers" means the offers that may be made by the Company pursuant
to a Registration Rights Agreement to exchange Offered Securities for Exchange
Securities.
"Exchange Offer Registration Statement" means a registration statement of
the Company on an appropriate form under the Securities Act with respect to the
Exchange Offers, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"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.
-4-
<PAGE>
"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," (i) when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity and (ii) includes Liquidated Damages if and when payable
pursuant to Section 202.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Liquidated Damages" has the meaning specified in Section 202.
"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.
"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:
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(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 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
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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.
"Prospectus" means the prospectus included in any Registration Statement
(including a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Offered Securities or the Exchange Securities, covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"QIB" or "Qualified Institutional Buyer" means "Qualified Institutional
Buyer" as such term is defined in Rule 144A under the Securities Act.
"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.
"Registration Default" has the meaning specified in Section 202.
"Registration Rights Agreement" means an agreement which may be entered
into from time to time between the Company and the holders of Offered Securities
or the broker or dealer offering such Offered Securities providing for, among
other things, an offer to exchange such
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Offered Securities for the corresponding series of Exchange Securities and the
filing of a Shelf Registration Statement under the circumstances described
therein.
"Registration Statement" means any Exchange Offer Registration Statement or
Shelf Registration Statement that covers any of the Offered Securities or the
Exchange Securities pursuant to the provisions of any Registration Rights
Agreement, and amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Regulation S" means Regulation S under the Securities Act, or any
successor provision.
"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.
"Restricted Subsidiary" means any Subsidiary of the Company that owns any
Operating Property.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144(k)" means Rule 144(k) under the Securities Act.
"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
oris 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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"Securities Act" has the meaning set forth in the first recital of this
Indenture.
"Security" or "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 Custodian" means the Trustee, as custodian with respect to Book-
Entry Securities, or any successor entity thereto.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Shelf Registration Period" means the shorter of (i) two years (or, if Rule
144(k) is amended to provide a shorter restrictive period, such shorter period)
and (ii) such period that will terminate when all the Offered Securities or
Exchange Securities, as applicable, covered by the applicable Shelf Registration
Statement have been sold pursuant to such Shelf Registration Statement.
"Shelf Registration Statement" means a "shelf" registration statement of
the Company which covers some or all of the Offered Securities or the Exchange
Securities, as applicable, on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the Commission, and
amendments and supplements to such registration statement, including post-
effective amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference therein.
"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.
"Time of Delivery" means the date on which any series of Offered Securities
is initially issued.
"Transfer Restricted Securities" means Securities that bear or are required
to bear the legend set forth in Section 305(h) hereof.
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"Transfer Restriction Termination Date" means the earlier of the first date
on which (i) the Securities of a series (other than such Securities acquired by
the Company or any Affiliate thereof since the issue date of such Securities)
may be sold pursuant to Rule 144(k) (or any successor provision) and (ii) all
such Securities have been exchanged or sold pursuant to an effective
registration statement.
"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 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 (except for the initial issuances
of Securities hereunder), 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;
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(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.
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
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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 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,
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(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: Corporate Trust Trustee
Administration, 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.
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.
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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.
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
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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 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 [if Book-
Entry Security, insert -- set forth above or such other principal sum on the
Schedule attached hereto (which shall not exceed $ _________] [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; [provided, however, in the event
(each such event in clauses (i) through (iii) below, being referred to as a
"Registration Default") that: (i) the Company is permitted under the law and
currently prevailing interpretations of the Commission's staff to effect the
Exchange Offers and the Exchange Offer Registration Statement is not declared
effective on or prior to the 180th day following the Time of Delivery; (ii) the
Registered Exchange Offers are not
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consummated or the applicable Shelf Registration Statement is not declared
effective on or prior to the 225th day following the Time of Delivery; or (iii)
after a Shelf Registration Statement is declared effective, (A) such Shelf
Registration Statement ceases to be effective prior to the end of the Shelf
Registration Period (except as permitted under the Registration Rights
Agreement); (B) such Shelf Registration Statement or the related Prospectus
ceases to be useable in connection with resales of Securities covered by such
Shelf Registration Statement prior to the end of the Shelf Registration Period
(except as permitted under the Registration Rights Agreement) because (1) the
Company determines that any event occurs as a result of which the related
Prospectus forming part of such Shelf Registration Statement would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, (2) the Company determines that it shall be
necessary to amend such Shelf Registration Statement, or supplement the related
Prospectus, to comply with the Securities Act or the Exchange Act or the rules
thereunder, or (3) the Company determines that it is advisable to suspend use of
the Prospectus for a discrete period of time due to pending material corporate
developments or similar material events that have not yet been publicly
disclosed and as to which the Company believes public disclosure will be
prejudicial to the Company, then, in addition to the stated interest set forth
in the title of this Security, liquidated damages ("Liquidated Damages") shall
accrue on this Security, over and above the interest rate set forth in the title
of this Security, following the occurrence of each Registration Default set
forth in clauses (i) and (ii) above from and including the next day following
each such Registration Default, in each case at a rate equal to 0.25% per annum;
provided, however, that in any case, if one or more Registration Defaults
referred to in clause (iii) above occurs and continues for more than 60 days
(whether or not consecutive) in any twelve month period (the 61st day being
referred to as the "Default Day") then from the Default Day until the earlier of
(i) the date such Shelf Registration Statement is again deemed effective or is
useable, (ii) the date that is the second anniversary of the Time of Delivery
(or, if Rule 144(k) is amended to provide a shorter restrictive period, such
shorter period) or (iii) the date on which all the Securities are sold pursuant
to such Shelf Registration Statement, Liquidated Damages shall accrue at a rate
of 0.25% per annum; provided, further, that the aggregate amount of Liquidated
Damages payable pursuant to the Registration Rights Agreement will in no event
exceed 0.25% per annum. The Liquidated Damages attributable to each
Registration Default referred to in clauses (i) and (ii) above shall cease to
accrue from the date of effectiveness of the Exchange Offer Registration
Statement after such 180-day period, in the case of clause (i) above, or the
consummation of the Registered Exchange Offers or the date of effectiveness of
the applicable Shelf Registration Statement after such 225-day period, in the
case of clause (ii) above.]
[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
[if applicable, insert -- (and Liquidated Damages, if any)] 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
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preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. [Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of _______% per annum (to the extent that the payment of
such interest shall be legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such interest has been made or
duly provided for, and such interest shall also be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest [if applicable, insert -- (and Liquidated Damages,
if any)] 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.
-17-
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
MONSANTO COMPANY
By_____________________
Title:
Attest:
_______________________
Title:
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 November 15, 1998 (herein called the
"Indenture"), between the Company and The Bank of New York, 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 are redeemable, as a whole or in
part, at the option of the Company, at any time or from time to time, on at
least 30 days, but not more than 60 days, prior notice mailed to the registered
address of each holder of Securities. The redemption prices will be equal to
the greater of (1) 100% of the principal amount of the Securities to be redeemed
or (2) the sum of the present values of the Remaining Scheduled Payments (as
defined below) discounted, on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months), at a rate equal to the sum of the
applicable Treasury Rate (as defined below) plus __ basis points, plus accrued
interest to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity (computed as of the
second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the
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<PAGE>
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of such series of Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such series of Securities. "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed by the
Company.
"Comparable Treasury Price" means, with respect to any redemption date, the
average of the Reference Treasury Dealer Quotations for such redemption date.
"Reference Treasury Dealer Quotations" means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Salomon Smith Barney Inc. and
Goldman, Sachs & Co. and their respective successors. If any of the foregoing
shall cease to be a primary U.S. Government securities dealer (a "Primary
Treasury Dealer"), the Company shall substitute another nationally recognized
investment banking firm that is a Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to Securities to be
redeemed, the remaining scheduled payments of principal of and interest on such
Securities that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with
respect to such Securities, the amount of the next succeeding scheduled interest
payment on such Securities will be reduced by the amount of interest accrued on
such Securities to such redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion of the Securities called for redemption (unless the
Company defaults in the payment of the redemption price and accrued interest).
On or before the redemption date, the Company will deposit with a paying agent
(or the Trustee) money sufficient to pay the redemption price of and accrued
interest on the Securities to be redeemed on such date. If less than all of the
Securities of any series are to be redeemed, the Securities to be redeemed shall
be selected by the Trustee by such method as the Trustee shall deem fair and
appropriate.]
[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
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<PAGE>
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 __________________], 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
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<PAGE>
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.]
[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
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<PAGE>
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 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
[if applicable, insert -- (and Liquidated Damages, if any)] 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.
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<PAGE>
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 [if applicable, insert -- (or Liquidated Damages, if
any)] 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.
[If applicable, insert -- Interest on this Security shall be computed on
the basis of a 360-day year of twelve 30-day months.]
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.
-23-
<PAGE>
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____ principal amount of Securities held
in *________ book-entry or *_______ definitive form by ________________ (the
"Transferor").
The Transferor*:
[_] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Book-Entry Security held by the
Depository a Security or Securities in definitive, registered form of
authorized denominations in an aggregate principal amount equal to its
beneficial interest in such Book-Entry Security (or the portion
thereof indicated above); or
[_] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify and agree that Transferor is familiar with the
Indenture relating to the above captioned Securities and as provided in Section
305 of such Indenture, the transfer of this Security does not require
registration under the Securities Act of 1933, as amended (the "Securities Act")
because:*
[_] Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 305(b)(ii)(A) or Section
305(e)(i)(A) of the Indenture).
[_] Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act in reliance
on Rule 144A (in satisfaction of Section 305(b)(ii)(B) or Section
305(e)(i)(B) of the Indenture) or pursuant to an exemption from
registration in accordance with Rule 904 under the Securities Act (in
satisfaction of Section 305(b)(ii)(B) or Section 305(e)(i)(B) of the
Indenture.)
[_] Such Security is being transferred in accordance with Rule 144 under
the Securities Act, or pursuant to an effective registration statement
under the Securities Act (in satisfaction of Section 305(b)(ii)(B) or
Section 305(e)(i)(B) of the Indenture).
[_] Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities
Act, other than Rule 144A, 144 or Rule 904 under the Securities Act,
and any applicable state securities laws. An Opinion of Counsel to
the effect that such transfer does not require registration under the
Securities Act accompanies this Certificate (in satisfaction of
Section 305(b)(ii)(C) or Section 305(e)(i)(C) of the Indenture).
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<PAGE>
---------------------
[INSERT NAME OF TRANSFEROR]
Dated: By:
------------------ --------------------------------
- -----------
*Check applicable box.
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:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE
OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK)
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
In addition, the reverse of each Book-Entry Security shall have attached to
it a Schedule in the following form:
-25-
<PAGE>
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Book-Entry Security have been
made:
<TABLE>
<CAPTION>
Signature of
Amount of increase in Principal Amount of this authorized
Amount of decrease in Principal Amount of Book-Entry Security signatory
Date of Principal Amount of this Book-Entry following such decrease of Trustee or
Exchange this Book-Entry Security Security (or increase) Security Custodian
-------- ------------------------ --------------------- ------------------------ ------------------
<S> <C> <C> <C> <C>
</TABLE>
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 Bank of New York,
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.
-26-
<PAGE>
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 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;
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<PAGE>
(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;
(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)).
-28-
<PAGE>
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.
The Offered Securities of a particular series and the corresponding series
of Exchange Securities shall be identical in all material respects (except that
the Exchange Securities will not contain the legend set forth in Section 305
manifesting the transfer restrictions or the terms with respect to the
liquidated damage payments applicable to the Offered Securities). The Exchange
Securities of a particular series shall be originally issued only in exchange
for the then outstanding Offered Securities of the corresponding series tendered
at the option of the Holders thereof pursuant to the applicable Exchange Offer.
The Exchange Securities of a particular series and the Offered Securities of the
corresponding series shall for all purposes under this Indenture be deemed to be
the same series of Securities.
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.
-29-
<PAGE>
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;
(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
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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 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,
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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.
Section 305. Registration, Registration of Transfer and Exchange; Restrictions
on Transfer.
(a) General Provisions Relating to Transfers and Exchanges.
(i) 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
and exchanges of Securities. The Trustee is hereby appointed "Security
Registrar" for the purpose of registering Securities and transfers and
exchanges of Securities as herein provided. To permit registrations,
transfers and exchanges of Securities, the Company shall execute and the
Trustee shall authenticate Definitive Securities and Book-Entry Securities
at the Security Registrar's request. Notwithstanding anything herein to
the contrary, there shall be only one Security Register with respect to
each series of Securities.
(ii) 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.
(iii) 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
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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.
(iv) All Definitive Securities and Book-Entry Securities issued upon
any registration of transfer or exchange of Definitive Securities or Book-
Entry Securities shall be the valid obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as
the Definitive Securities or Book-Entry Securities surrendered upon such
registration of transfer or exchange.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.
(ix) 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
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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.
(x) 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.
(b) Transfer and Exchange of Securities. When Definitive Securities are
presented by a Holder to the Security Registrar with a request: (x) to register
the transfer of the Definitive Securities; or (y) to exchange such Definitive
Securities for an equal principal amount of Definitive Securities of other
authorized denominations, the Security Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met; provided, however, that the Definitive Securities presented or surrendered
for register of transfer or exchange: (i) shall be duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Security
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing; and (ii) in the case of a Definitive Security that is a Transfer
Restricted Security, such request shall be accompanied by the following
additional information and documents, as applicable: (A) if such Transfer
Restricted Security is being delivered to the Security Registrar by a Holder for
registration in the name of such Holder, without transfer, a certification to
that effect from such Holder (in substantially the form of the "Certificate to
be Delivered Upon Exchange or Registration of Transfer of Securities" set forth
in Section 203); or (B) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (as defined in Rule 144A under
the Securities Act) in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with Rule 144 or Rule
904 under the Securities Act or pursuant to an effective registration statement
under the Securities Act, a certification to that effect from such Holder (in
substantially the form of the "Certificate to be Delivered Upon Exchange or
Registration of Transfer of Securities" set forth in Section 203) or (C) if such
Transfer Restricted Security is being transferred in reliance on another
exemption from the registration requirements of the Securities Act or the
securities laws of any other applicable jurisdiction, a certification to that
effect from such Holder (in substantially the form of the "Certificate to be
Delivered Upon Exchange or Registration of Transfer of Securities" set forth in
Section 203) and an Opinion of Counsel from such Holder or the transferee
reasonably acceptable to the Company and to the Security Registrar to the effect
that such transfer is in compliance with the Securities Act.
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(c) Transfer of a Definitive Security for a Beneficial Interest in a Book-
Entry Security. A Definitive Security may not be exchanged for a beneficial
interest in a Book-Entry Security except upon satisfaction of the requirements
set forth below. Upon receipt by the Trustee of a Definitive Security, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with: (i) if such Definitive Security is a
Transfer Restricted Security, a certification from the Holder thereof (in
substantially the form of the "Certificate to be Delivered Upon Exchange or
Registration of Transfer of Securities" set forth in Section 203) to the effect
that such Definitive Security is being transferred by such Holder to a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) in accordance with Rule 144A under the Securities Act; and (ii) whether or
not such Definitive Security is a Transfer Restricted Security, written
instructions from the Holder thereof directing the Trustee to make, or to direct
the Security Custodian to make, an endorsement on the Book-Entry Security to
reflect an increase in the aggregate principal amount of the Securities
represented by the Book-Entry Security, in which case the Trustee shall cancel
such Definitive Security in accordance with Section 309 hereof and cause, or
direct the Security Custodian to cause, in accordance with the standing
instructions and procedures existing between the Depository and the Security
Custodian, the aggregate principal amount of Securities represented by the Book-
Entry Security to be increased accordingly. If no Book-Entry Securities are
then outstanding, the Company shall issue and, upon receipt of a Company Order
in accordance with Section 303 hereof, the Trustee shall authenticate a new
Book-Entry Security in the appropriate principal amount.
(d) Transfer and Exchange of Book-Entry Securities. The transfer and
exchange of Book-Entry Securities or beneficial interests therein shall be
effected through the Depository, in accordance with this Indenture and the
procedures of the Depository therefor, which shall include restrictions on
transfer comparable to those set forth herein to the extent required by the
Securities Act.
(e) Transfer of a Beneficial Interest in a Book-Entry Security for a
Definitive Security.
(i) Any Person having a beneficial interest in a Book-Entry Security
may upon request exchange such beneficial interest for a Definitive
Security. Upon receipt by the Trustee of written instructions or such
other form of instructions as is customary for the Depository, from the
Depository or its nominee on behalf of any Person having a beneficial
interest in a Book-Entry Security, and, in the case of a Transfer
Restricted Security, the following additional information and documents
(all of which may be submitted by facsimile): (A) if such beneficial
interest is being transferred to the Person designated by the Depository as
being the beneficial owner, a certification to that effect from such Person
(in substantially the form of the "Certificate to be Delivered Upon
Exchange or Registration of Transfer of Securities" set forth in Section
203) or (B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under the Securities Act or
pursuant to an exemption from registration in accordance with Rule 144 or
Rule 904 under the Securities Act or
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pursuant to an effective registration statement under the Securities Act, a
certification to that effect from the transferor (in substantially the form
of "Certificate to be Delivered Upon Exchange or Registration of Transfer
of Securities" set forth in Section 203) or (C) if such beneficial interest
is being transferred in reliance on another exemption from the registration
requirements of the Securities Act or the securities laws of any other
applicable jurisdiction, a certification to that effect from the transferor
(in substantially the form of the "Certificate to be Delivered Upon
Exchange or Registration of Transfer of Securities" set forth in Section
203) and an Opinion of Counsel from the transferee or transferor reasonably
acceptable to the Company and to the Security Registrar to the effect that
such transfer is in compliance with the Securities Act, in which case the
Trustee or the Security Custodian, at the direction of the Trustee, shall,
in accordance with the standing instructions and procedures existing
between the Depository and the Security Custodian, cause the aggregate
principal amount of Book-Entry Securities to be reduced accordingly and,
following such reduction, the Company shall execute and, upon receipt of a
Company Order in accordance with Section 303 hereof, the Trustee shall
authenticate and deliver to the transferee a Definitive Security in the
appropriate principal amount.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Book-Entry Security pursuant to this Section 305(e) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Definitive Securities to the Persons in whose names such
Securities are so registered.
(f) Restrictions on Transfer and Exchange of Book-Entry Securities.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (g) of this Section 305), a Book-Entry Security may not
be transferred as a whole except by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such nominee to a
successor Depository or a nominee of such successor Depository.
(g) Authentication of Securities in Absence of Depository. If at any time:
(i) the Depository for the Securities notifies the Company that the Depository
is unwilling or unable to continue as Depository for the Book-Entry Securities
and a successor Depository for the Book-Entry Securities is not appointed by the
Company within 90 days after delivery of such notice; or (ii) the Company, at
its sole discretion, notifies the Trustee in writing that it elects to cause the
issuance of Definitive Securities under this Indenture, then the Company shall
execute, and the Trustee shall, upon receipt of a Company Order in accordance
with Section 303 hereof, authenticate and deliver, Definitive Securities in an
aggregate principal amount equal to the principal amount of the Book-Entry
Securities in exchange for such Book-Entry Securities.
(h) Legends and Authentication of Securities under Specified Circumstances.
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(i) Except as permitted by the following paragraphs (iii) and (iv),
each Security certificate evidencing Book-Entry Securities and Definitive
Securities (and all Securities issued in exchange therefor or substitution
thereof) issued other than pursuant to Regulation S shall bear a legend in
substantially the following form:
"THIS [NOTE] [DEBENTURE] HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (2) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE FOR THIS [NOTE] [DEBENTURE] A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), (3) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S
UNDER THE SECURITIES ACT OR (4) PURSUANT TO AN EXEMPTION FROM THE
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES."
(ii) Except as permitted by the following paragraphs (iii) and (iv),
each Security certificate evidencing Book-Entry Securities and Definitive
Securities (and all Securities issued in exchange therefor or substitution
thereof) issued pursuant to Regulation S shall bear a legend in
substantially the following form:
"THIS [NOTE] [DEBENTURE] HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, PRIOR TO
THE EXPIRATION OF A DISTRIBUTION COMPLIANCE PERIOD (DEFINED AS 40 DAYS
AFTER THE ISSUE DATE WITH RESPECT TO THE [NOTES] [DEBENTURES]), MAY NOT BE:
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF
REGULATION S OR (2) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, OR (3) TO AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
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TO THE TRUSTEE FOR THIS [NOTE] [DEBENTURE] A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE), AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES."
(iii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Book-Entry
Security) pursuant to Rule 144 under the Securities Act or pursuant to an
effective registration statement under the Securities Act: (A) in the case
of any Transfer Restricted Security that is a Definitive Security, the
Security Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive Security that does not bear
the legend set forth in (i) OR (ii) above and rescind any restriction on
the transfer of such Transfer Restricted Security; and (B) in the case of
any Transfer Restricted Security represented by a Book-Entry Security, such
Transfer Restricted Security shall not be required to bear the legend set
forth in (i) or (ii) above, but shall continue to be subject to the
provisions of Section 305(e) hereof; provided, however, that with respect
to any request for an exchange of a Transfer Restricted Security that is
represented by a Book-Entry Security for a Definitive Security that does
not bear the legend set forth in (i) or (ii) above, which request is made
in reliance upon Rule 144, the Holder thereof shall certify in writing to
the Security Registrar that such request is being made pursuant to Rule 144
(such certification to be substantially in the form of the "Certificate to
be Delivered Upon Exchange or Registration of Transfer of Securities" set
forth in Section 203).
(iv) Notwithstanding the foregoing, upon consummation of the Exchange
Offer, the Company shall issue and, upon receipt of a Company Order in
accordance with Section 303 hereof, the Trustee shall authenticate Exchange
Securities in exchange for Offered Securities accepted for exchange in the
Exchange Offer, which Exchange Securities shall not bear the legend set
forth in (i) or (ii) above, and the Security Registrar shall rescind any
restriction on the transfer of such Securities, in each case unless the
Holder of such Offered Securities is either (A) a broker-dealer, (B) a
Person participating in the distribution of the Offered Securities or (C) a
Person who is an affiliate (as defined in Rule 144A) of the Company.
(v) The letter required to be provided pursuant to paragraphs (i) and
(ii) above shall be substantially in the form of Schedule 305(h)(v) hereto.
(i) Cancellation and/or Adjustment of Book-Entry Securities. At such time
as all beneficial interests in Book-Entry Securities have been exchanged for
Definitive Securities, redeemed, repurchased or cancelled, all Book-Entry
Securities shall be returned to or retained and cancelled by the Trustee in
accordance with Section 309 hereof. At any time prior to such
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cancellation, if any beneficial interest in a Book-Entry Security is exchanged
for Definitive Securities, redeemed, repurchased or cancelled, the Trustee or
the Security Custodian, at the direction of the Trustee, shall, in accordance
with the standing instructions and procedures existing between the Depository
and the Security Custodian, cause the aggregate amount of Book-Entry Securities
to be reduced accordingly.
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.
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.
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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 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
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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.
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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 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
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Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to such Securities, 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.
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
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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 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
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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 unstated 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 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
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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,
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.
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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
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
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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.
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 indemnity
satisfactory to the Trustee 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.
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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.
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
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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 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
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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;
(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 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; provided, however, that the
Trustee shall retain a written record of any consultation with such counsel
dated the date of such consultation;
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(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 security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) the Trustee shall not be liable for any action taken, suffered or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(i) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
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.
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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
(1) to pay to the Trustee from time to time such 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, including taxes (other than taxes based on the income of the Trustee)
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.
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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(5) or Section 501(6), 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 serving as trustee or paying agent under certain
indentures pursuant to which the Company or its subsidiaries have issued
industrial revenue bonds, in an aggregate original principal amount of
approximately $137 million.
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
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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 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
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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 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
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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.
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).
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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
written 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, reinvestment or liquidation of an
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 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
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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.
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 Bank of New York, As Trustee
By________________________________
As Authenticating Agent
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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.
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.
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(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.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder.
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,
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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 of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 611(b); or
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(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 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
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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 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 conform, in the opinion
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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
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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 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
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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 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.
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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. 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
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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 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,
lender, 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
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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 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
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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 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
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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 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.
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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.
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.
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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.
Section 1105. Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on 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
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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 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.
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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
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
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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.
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
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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 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
-79-
<PAGE>
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 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.
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<PAGE>
(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.
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.
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<PAGE>
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 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: /s/ Juanita H. Hinshaw
---------------------------------------
Name: Juanita H. Hinshaw
----------------------------------
Title: Vice President & Treasurer
---------------------------------
THE BANK OF NEW YORK, as Trustee
By: /s/ Marie E. Trimboli
---------------------------------------
Name: Marie E. Trimboli
----------------------------------
Title: Assistant Treasurer
---------------------------------
<PAGE>
Schedule 305(h)(v)
------------------
We understand that the ____________________ of Monsanto Company (the
"Securities") were issued in a transaction not involving any public offering
within the United States within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), and that the Securities have not been registered
under the Securities Act, and we agree, on our own behalf and on behalf of each
account for which we acquire any Securities, that if in the future we decide to
resell or otherwise transfer any Securities, such Securities may be resold or
otherwise transferred only (i) to Monsanto Company or any subsidiary thereof,
(ii) pursuant to an effective registration statement under the Securities Act,
(iii) to a person who is a "qualified institutional buyer" (as defined in Rule
144A under the Securities Act) in a transaction meeting the requirements of Rule
144A, (iv) to an Institutional Accredited Investor (as defined below) that,
prior to such transfer, furnishes to The Bank of New York, as Trustee (the
"Trustee"), a signed letter substantially in the form hereof, (v) outside the
United States in a transaction meeting the requirements of Rule 904 under the
Securities Act or (vi) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act (if applicable) and (vii) in each case, in
accordance with any applicable securities laws of the United States or any other
applicable jurisdiction and in accordance with the legends set forth on the
Securities. We further agree to provide any person purchasing any of the
Securities from us a notice advising such purchaser that resales of such
Securities are restricted as stated herein. We understand that the registrar for
the Securities will not be required to accept for registration of transfer any
Securities, except upon presentation of evidence satisfactory to Monsanto
Company that the foregoing restrictions on transfer have been complied with. We
further understand that any Securities will be in the form of definitive
physical certificates and that such certificates will bear a legend reflecting
the substance of this paragraph.
We confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act (an "Institutional
Accredited Investor");
(ii) any purchase of Securities by us will be for our own account or
for the account of one or more Institutional Accredited Investors or as
fiduciary for the account of one or more trusts, each of which is an
"accredited investor" within the meaning of Rule 501(a)(7) under the
Securities Act and for each of which we exercise sole investment
discretion;
(iii) in the event that we purchase any Securities, we will acquire
Securities having a minimum purchase price of not less than $100,000 for
our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of
purchasing the Securities; and
S-1
<PAGE>
(v) we are not acquiring the Securities with a view to distribution
thereof or with any present intention of offering or selling the
Securities, except as permitted above; provided that the disposition of our
property and property of any accounts for which we are acting as fiduciary
shall remain at all times within our control.
We acknowledge that Monsanto Company, you and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
(Name of Purchaser)
By:__________________________________
Name:
Title:
S-2
<PAGE>
Exhibit 4.8
-----------
MONSANTO COMPANY
Officers' Certificate Pursuant to
Sections 102 and 301 of the Indenture
-------------------------------------
Each of the undersigned officers of Monsanto Company, a Delaware
corporation (the "Company"), does hereby certify as follows:
1. Each of the undersigned has read the Indenture, dated as of
December 1, 1998 (the "Indenture"), between the Company and The Bank of New
York, as Trustee (the "Trustee"), including Section 301 thereof, and the
definitions in the Indenture relating thereto, and has reviewed such other
corporate documents and records relating to the matters referred to herein,
and, in the opinion of the undersigned, has made such examination or
investigation, as is necessary to enable him or her to express an informed
opinion on the matters set forth below.
2. The terms of the senior unsecured indebtedness of the Company (the
"Securities") to be issued under the Indenture, have been established
pursuant to a Board Resolution (as defined in the Indenture) and are set
forth in Schedules I-1 through I-5 hereto.
3. All conditions precedent provided for in the Indenture relating to
the establishment and original issuance, authentication and delivery of the
Securities have been complied with.
4. In the opinion of the undersigned, Section 301 of the Indenture
has been complied with in the establishment of the terms of the Securities.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, we have hereto signed our names.
Dated: December 9, 1998
/s/ Juanita H. Hinshaw /s/ Barbara L. Blackford
- ---------------------------------- --------------------------------------
Name: Juanita H. Hinshaw Name: Barbara L. Blackford
Title: Vice President & Treasurer Title: Assistant Secretary
<PAGE>
SCHEDULE I-1
------------
Title of Designated Securities:
5.375% Notes due 2001
Aggregate Principal Amount:
$500,000,000
Price to Public:
$499,260,000
Purchase Price by Initial Purchasers:
$497,260,000
Specified Funds for Payment of Purchase Price:
Same-day funds by wire transfer
Indenture:
Indenture, dated as of December 1, 1998, between the Company and The Bank
of New York, as Trustee
Maturity:
December 1, 2001
Interest Rate:
5.375%
Interest Payment Dates:
June 1 and December 1 of each year, beginning June 1, 1999
Redemption Provisions:
Not redeemable prior to maturity
Sch. I-1-1
<PAGE>
Sinking Fund Provisions:
No sinking fund provisions
Interest Deferral Provisions
No interest deferral provisions
Defeasance Provisions:
Sections 1302 and 1303 of the Indenture apply
Other Terms:
Book-entry, through The Depository Trust Company
Time of Delivery:
December 9, 1998
Names and Addresses of Representatives:
Designated Representatives: Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Address for Notices, etc.: c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Sch. I-1-2
<PAGE>
SCHEDULE I-2
------------
Title of Designated Securities:
5.750% Notes due 2005
Aggregate Principal Amount:
$600,000,000
Price to Public:
$598,410,000
Purchase Price by Initial Purchasers:
$594,660,000
Specified Funds for Payment of Purchase Price:
Same-day funds by wire transfer
Indenture:
Indenture, dated as of December 1, 1998, between the Company and The Bank
of New York, as Trustee
Maturity:
December 1, 2005
Interest Rate:
5.750%
Interest Payment Dates:
June 1 and December 1 of each year, beginning June 1, 1999
Redemption Provisions:
Redeemable as a whole or in part, at the option of the Company, at any time
at a redemption price equal to the greater of (1) 100% of the principal
amount of the Designated Securities to be redeemed or (2) the sum of the
present values of the
Sch. I-2-1
<PAGE>
remaining scheduled principal and interest payments discounted, on a
semiannual basis, at a rate equal to the sum of the applicable Treasury
Rate (as defined in the Indenture) and 15 basis points.
Sinking Fund Provisions:
No sinking fund provisions
Interest Deferral Provisions
No interest deferral provisions
Defeasance Provisions:
Sections 1302 and 1303 of the Indenture apply
Other Terms:
Book-entry, through The Depository Trust Company
Time of Delivery:
December 9, 1998
Names and Addresses of Representatives:
Designated Representatives: Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Address for Notices, etc.: c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Sch. I-2-2
<PAGE>
SCHEDULE I-3
------------
Title of Designated Securities:
5.875% Notes due 2008
Aggregate Principal Amount:
$200,000,000
Price to Public:
$199,436,000
Purchase Price by Initial Purchasers:
$198,136,000
Specified Funds for Payment of Purchase Price:
Same-day funds by wire transfer
Indenture:
Indenture, dated as of December 1, 1998, between the Company and The Bank
of New York, as Trustee
Maturity:
December 1, 2008
Interest Rate:
5.875%
Interest Payment Dates:
June 1 and December 1 of each year, beginning June 1, 1999
Redemption Provisions:
Redeemable as a whole or in part, at the option of the Company, at any time
at a redemption price equal to the greater of (1) 100% of the principal
amount of the Designated Securities to be redeemed or (2) the sum of the
present values of the
Sch. I-3-1
<PAGE>
remaining scheduled principal and interest payments discounted, on a
semiannual basis, at a rate equal to the sum of the applicable Treasury
Rate (as defined in the Indenture) and 20 basis points.
Sinking Fund Provisions:
No sinking fund provisions
Interest Deferral Provisions
No interest deferral provisions
Defeasance Provisions:
Sections 1302 and 1303 of the Indenture apply
Other Terms:
Book-entry, through The Depository Trust Company
Time of Delivery:
December 9, 1998
Names and Addresses of Representatives:
Designated Representatives: Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Address for Notices, etc.: c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Sch. I-3-2
<PAGE>
SCHEDULE I-4
------------
Title of Designated Securities:
6.500% Debentures due 2018
Aggregate Principal Amount:
$500,000,000
Price to Public:
$497,910,000
Purchase Price by Initial Purchasers:
$493,535,000
Specified Funds for Payment of Purchase Price:
Same-day funds by wire transfer
Indenture:
Indenture, dated as of December 1, 1998, between the Company and The Bank
of New York, as Trustee
Maturity:
December 1, 2018
Interest Rate:
6.500%
Interest Payment Dates:
June 1 and December 1 of each year, beginning June 1, 1999
Redemption Provisions:
Redeemable as a whole or in part, at the option of the Company, at any time
at a redemption price equal to the greater of (1) 100% of the principal
amount of the Designated Securities to be redeemed or (2) the sum of the
present values of the
Sch. I-4-1
<PAGE>
remaining scheduled principal and interest payments discounted, on a
semiannual basis, at a rate equal to the sum of the applicable Treasury
Rate (as defined in the Indenture) and 20 basis points.
Sinking Fund Provisions:
No sinking fund provisions
Interest Deferral Provisions
No interest deferral provisions
Defeasance Provisions:
Sections 1302 and 1303 of the Indenture apply
Other Terms:
Book-entry, through The Depository Trust Company
Time of Delivery:
December 9, 1998
Names and Addresses of Representatives:
Designated Representatives: Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Address for Notices, etc.: c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Sch. I-4-2
<PAGE>
SCHEDULE I-5
------------
Title of Designated Securities:
6.600% Debentures due 2028
Aggregate Principal Amount:
$700,000,000
Price to Public:
$697,480,000
Purchase Price by Initial Purchasers:
$691,355,000
Specified Funds for Payment of Purchase Price:
Same-day funds by wire transfer
Indenture:
Indenture, dated as of December 1, 1998, between the Company and The Bank
of New York, as Trustee
Maturity:
December 1, 2028
Interest Rate:
6.600%
Interest Payment Dates:
June 1 and December 1 of each year, beginning June 1, 1999
Redemption Provisions:
Redeemable as a whole or in part, at the option of the Company, at any time
at a redemption price equal to the greater of (1) 100% of the principal
amount of the Designated Securities to be redeemed or (2) the sum of the
present values of the
Sch. I-5-1
<PAGE>
remaining scheduled principal and interest payments discounted, on a
semiannual basis, at a rate equal to the sum of the applicable Treasury
Rate (as defined in the Indenture) and 25 basis points.
Sinking Fund Provisions:
No sinking fund provisions
Interest Deferral Provisions
No interest deferral provisions
Defeasance Provisions:
Sections 1302 and 1303 of the Indenture apply
Other Terms:
Book-entry, through The Depository Trust Company
Time of Delivery:
December 9, 1998
Names and Addresses of Representatives:
Designated Representatives: Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Address for Notices, etc.: c/o Salomon Smith Barney Inc.
7 World Trade Center
New York, New York 10048
Sch. I-5-2
