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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K/A
AMENDMENT NO. 1
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): December 6, 1994
APACHE CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 1-4300 41-0747868
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification
Number)
2000 POST OAK BOULEVARD
SUITE 100
HOUSTON, TEXAS 77056-4400
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (713) 296-6000
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ITEM 5. OTHER EVENTS
On December 6, 1994, Apache Corporation ("Apache") announced the
issuance of up to $172.5 million principal amount of 6% Convertible
Subordinated Debentures due 2002 (the "Debentures"). Apache issued a press
release, dated December 6, 1994, which is listed under Item 7 as Exhibit 99.1
and incorporated herein by reference.
On January 4, 1995, Apache completed the issuance of $172.5 million of
the Debentures, which are convertible at the option of the holder into Apache
common stock at a conversion price of $30.68 per share. Net proceeds of $168.6
million will be used for general corporate purposes, including reduction of debt
and to provide funds for recently-announced acquisitions. The Debentures have
not been registered under the Securities Act of 1933, as amended, and may not
be offered or sold in the United States absent registration or an applicable
exemption from such registration requirements. In connection with the
Debentures, Apache entered into a Fiscal Agency Agreement with Chemical Bank,
as fiscal agent, which is listed under Item 7 as Exhibit 99.2 and incorporated
herein by reference.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(c) Exhibits
EXHIBIT DOCUMENT
------- --------
99.1 Press Release, dated December 6, 1994 (Apache
Issues $150 Million Convertible Subordinated
Debentures)
99.2 Fiscal Agency Agreement, dated as of January
4, 1995, between Apache and Chemical Bank, as
Fiscal Agent.
2
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this Amendment No. 1 on Form 8-K/A to be signed
on its behalf by the undersigned thereunto duly authorized.
APACHE CORPORATION
Date: January 11, 1995 /s/ Zurab S. Kobiashvili
Zurab S. Kobiashvili
Vice President, General Counsel
and Secretary
3
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EXHIBIT 99.1
[Apache Letterhead]
Tuesday, December 6, 1994
APACHE ISSUES $150 MILLION CONVERTIBLE SUBORDINATED DEBENTURES
HOUSTON -- Apache Corporation (NYSE:APA) today announced that it has entered
into an agreement to place $150 million principal amount ($172.5 million
principal amount if the overallotment option is exercised in full) of 6%
Convertible Subordinated Debentures due January 15, 2002. The debentures may be
redeemed by the company no sooner than January 15, 1998, and are subordinated
in right of payment to all senior indebtedness of the company. The debentures
are convertible at the option of the holders into common stock of the company
at a conversion price of $30.68 per share, subject to adjustment. The closing
of the placement of the debentures is expected to occur on January 4, 1995.
Net proceeds from the sale will be used for general corporate purposes,
including reduction of debt and to provide funds for acquisitions.
The debentures will not be and have not been registered under the Securities
Act of 1933, as amended, and may not be offered or sold in the United States
absent exemption from registration requirements.
# # #
Investor Relations: Paul Korus Media Relations: Suzanne Best
713-296-6662 713-296-6154
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EXHIBIT 99.2
FISCAL AGENCY AGREEMENT
dated as of
January 4, 1995
between
APACHE CORPORATION
and
CHEMICAL BANK,
as Fiscal Agent
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FISCAL AGENCY AGREEMENT ("Agreement"), dated as of January 4,
1995, between APACHE CORPORATION, a corporation duly organized and validly
existing under the laws of the State of Delaware (the "Company"), and CHEMICAL
BANK, a banking corporation duly organized and validly existing under the
laws of the United States (the "Fiscal Agent").
1. The Securities. The Company by a Subscription
Agreement, dated December 6, 1994 (the "Subscription Agreement"), among the
Company and the Managers (as defined therein), agreed to issue up to U.S.
$172,500,000, aggregate principal amount of its 6% Convertible Subordinated
Debentures due 2002 (hereinafter referred to as the "Securities"). Interest on
the Securities shall be calculated on the basis of a 360-day year comprised of
twelve 30-day months. Except as set forth in the next sentence, the Securities
will initially be issued in temporary form, and will subsequently be exchanged
for Securities in definitive form either as bearer Securities ("Bearer
Securities"), in denominations of U.S. $1,000 and U.S. $10,000 and with
interest coupons attached, representing the semiannual interest payable
thereon, or as fully registered Securities ("Registered Securities," which term
shall include, where the context so requires, the Restricted Securities as
hereinafter defined), in denominations of U.S. $1,000 and integral multiples
thereof. In addition, Securities may be sold on behalf of the Company by the
Managers (or their affiliates) to qualified institutional buyers pursuant to
Rule 144A under the United States Securities Act of 1933 (the "Securities Act")
or to accredited investors pursuant to Regulation D under the Securities Act in
accordance with the terms of this Agreement and the Subscription Agreement (the
"Restricted Securities," which may be in a global or typewritten form and later
exchanged for a printed Security of an equivalent amount, and which, for all
purposes hereunder shall be a Definitive Security (as defined herein) in the
form of a Registered Security). The Securities in definitive form shall be
substantially in the form of Exhibit A hereto (the "Definitive Securities").
The Securities will be convertible as provided in Section 4 of the Definitive
Securities and Section 7 hereof. The Securities may be redeemed by the Company
as provided in Section 3 of the Definitive Securities and Section 6 hereof.
The Securities will be subordinated as provided in Section 7 of the Definitive
Securities. The temporary global debenture in respect of the Securities will
be issued in bearer form without coupons in the aggregate principal amount of
the entire issue of Securities (less the aggregate principal amount of the
Restricted Securities concurrently issued), substantially in the form of
Exhibit B hereto (the "Global Security"). The Definitive Securities and the
Global Security shall contain such appropriate
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insertions, omissions, substitutions and other variations as are required or
permitted by this Agreement and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may,
consistent herewith, be determined by the officer of the Company executing
such Securities, as evidenced by his execution of such Securities.
2. Appointment of Agents and Security Registrar.
(a) The Company hereby appoints Chemical Bank, acting at
and through its principal corporate trust office at 450 West 33rd Street, 15th
Floor, New York, New York 10001 and having an office in London at 125 London
Wall, London, EC2Y 5AJ, England, as its fiscal agent in respect of the
Securities upon the terms and subject to the conditions herein set forth.
(Chemical Bank and its successor or successors as such fiscal agent qualified
and appointed in accordance with Section 12 hereof are herein called the
"Fiscal Agent.") The Fiscal Agent shall have the powers and authority granted
to and conferred upon it herein and in the Securities, and such further powers
and authority, acceptable to it, to act on behalf of the Company as the
Company may hereafter grant to or confer upon it.
(b) In addition, the Company hereby appoints Chemical Bank,
acting at and through its office in New York at 450 West 33rd Street, 15th
Floor, New York, New York 10001, and in London at 125 London Wall, London, EC2Y
5AJ, England, as its paying agent in respect of the Securities upon the terms
and subject to the conditions herein set forth. (Chemical Bank and its
successor or successors as such paying agent qualified and appointed in
accordance with Section 12 hereof are herein called the "Paying Agent.") The
Paying Agent shall have the powers and authority granted to and conferred upon
it herein and in the Securities, and such further powers and authority,
acceptable to it, to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. As used herein, "paying agencies" shall
mean paying agencies maintained by the Company as provided in Section 12(f)
hereof.
(c) The Company hereby appoints Chemical Bank, acting at
and through its offices in New York at 450 West 33rd Street, 15th Floor, New
York, New York 10001 and in London at 125 London Wall, London, EC2Y 5AJ,
England, as its conversion agent in respect of the Securities upon the terms
and subject to the conditions herein set forth. (Chemical Bank and its
successor or successors as such conversion agent qualified and
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appointed in accordance with Section 12 hereof are herein called the
"Conversion Agent," and the Paying Agent, the Conversion Agent, the Transfer
Agents (as herein defined) and the Fiscal Agent are sometimes herein referred
to severally as an "Agent" and collectively as the "Agents"). The Conversion
Agent shall have the powers and authority granted to and conferred upon it
herein and in the securities, and such further powers and authority, acceptable
to it, to act on behalf of the Company as the Company may hereafter grant to or
confer upon it. As used herein, "conversion agencies" shall mean conversion
agencies maintained by the Company as provided in Section 12(f) hereof.
(d) The Company shall cause to be kept at the principal
corporate trust office of the Fiscal Agent a register (the registers maintained
in such office and in any other office or agency designated for such purpose
(which office shall be located outside of the United Kingdom) being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as the Company may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Fiscal Agent is hereby appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities as herein provided.
3. Registration and Transfer.
(a) Upon surrender for registration of transfer of
any Registered Security at any office or agency designated for such purpose by
the Company pursuant to Section 12(g) hereof, the Company shall execute, and
the Fiscal Agent shall authenticate and register and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Registered Securities of any authorized denominations and of a like
aggregate principal amount; provided, however, that prior to the date which is
three years after the Closing Date (as defined in the Definitive Securities)
(the "Transfer Restriction Date"), the Fiscal Agent shall not register the
transfer of any Restricted Security unless:
(i) Either (x) the registered holder presenting such
Restricted Security for transfer, or its agent, shall have advised the
Fiscal Agent in writing that such registered holder intends to rely or
is relying on the exemption from the registration and resale provisions
of the Securities Act provided by Rule 144A thereunder (or a
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successor provision) in making such transfer or (y) the person
presenting such Restricted Security for transfer (if other than the
registered holder or its agent), or its agent, shall have advised the
Fiscal Agent in writing that the person in whose name the Restricted
Security is to be registered upon transfer (or, in the case of a
transfer to a nominee, each beneficial owner of such Restricted
Security) is a "qualified institutional buyer" (as defined in Rule
144A) (a "QIB") and that such person has been advised that the
Restricted Security has been sold or transferred to it in reliance
upon Rule 144A; or
(ii) Either (x) the registered holder presenting such
Restricted Security for transfer, or its agent, shall have advised the
Fiscal Agent in writing that the registered holder intends to rely on
or is relying on the exemption from the registration provisions of the
Securities Act provided by Regulation S thereunder and the address of
the person in whose name the registered holder, or its agent, has
requested the Restricted Security to be registered upon transfer is an
address outside of the United States (as defined in Regulation S) or
(y) the person presenting such Restricted Security for transfer (if
other than the registered holder or its agent), or its agent, shall
have advised the Fiscal Agent in writing that the person in whose name
the Restricted Security is to be registered upon transfer (or, in the
case of a transfer to a nominee, each beneficial owner of such
Restricted Security), has been advised that the Restricted Security
has been sold or transferred to it in reliance upon the exemption
from the registration provisions of the Securities Act provided by
Regulation S and the address of the person in whose name the Restricted
Security is to be registered in the Security Register upon transfer is
an address outside the United States (as defined in Regulation
S); or
(iii) A broker or dealer registered under Section 15
of the Securities Exchange Act of 1934 shall have advised the Fiscal
Agent in writing that (x) each person who will become a beneficial
owner of the Restricted Security upon transfer is a sophisticated
institutional investor which is an "accredited investor" as such term
is defined in Regulation D under the Securities Act, (y) no general
solicitation or advertising was made or used by such broker or dealer
in connection with the offer and sale of such Restricted Subsidiary to
such person(s) and (z) such institutional investor has been
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informed that the Securities have not been registered under the
Securities Act and are subject to the restrictions on transfer set
forth in the Securities and this Agreement and such advice is
accompanied by a written opinion of U.S. counsel acceptable in form and
substance to the Company that the transfer is being made pursuant to an
exemption from the registration requirements of the Securities Act and
the Company provides written confirmation to the Fiscal Agent
that such opinion is in form and substance acceptable to the Company;
or
(iv) The Fiscal Agent has received transfer
documentation indicating, and a written opinion of U.S. counsel
acceptable in form and substance to the Company confirming, that the
transfer is being made pursuant to an exemption from, or a transaction
not otherwise subject to, the registration requirements of the
Securities Act, and the Company provides written confirmation to the
Fiscal Agent that such opinion is in form and substance acceptable
to the Company.
For purposes of this Section 3(a), any such advice to
the Fiscal Agent in writing may be in the form of a letter, notice or other
written document or, with respect to Section 3(a)(i) and (ii) above, by
appropriate notation on the transfer notice set forth on such Security.
(b) Bearer Securities may, at the option of the holder
thereof, be exchanged for an equal aggregate principal amount of Registered
Securities in denominations of $1,000 and integral multiples thereof without
coupons and/or Bearer Securities of authorized denominations, upon surrender
of the Bearer Securities to be exchanged at any office or agency designated
for such purpose by the Company pursuant to Section 12(g), with all unmatured
coupons and all matured coupons in default thereto appertaining. If such
holder is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons, in default, such exchange may be effected if the Bearer
Securities are accompanied by payment in an amount equal to the face amount of
such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company if there be furnished to it such security
or indemnity as it may require to save it, the Fiscal Agent, the Paying Agent
and any paying agency harmless. If thereafter the holder of such Security
shall surrender to any paying agency any such missing coupon in respect of
which such a payment shall have
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been made, such holder shall be entitled to receive the amount of such payment.
Registered Securities may, at the option of the holder thereof,
be exchanged for Registered Securities of any other authorized denominations
and of a like aggregate principal amount, upon surrender of the Securities to
be exchanged at any office or agency designated for such purpose by the Company
pursuant to Section 12(g). Registered Securities shall not be exchangeable for
Bearer Securities. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Fiscal Agent shall authenticate and deliver,
the Registered Securities which the holder making the exchange is entitled to
receive.
(c) All Securities issued upon any registration of transfer
or exchange of Securities shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Securities surrendered upon such registration of transfer or
exchange.
(d) Every Registered Security presented for registration of
transfer or surrendered for exchange shall be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company, the
Fiscal Agent and the Transfer Agent to which such Security is presented or
surrendered and the Security Registrar, duly executed by the holder thereof
or his attorney duly authorized in writing. In the case of Registered
Securities, all such instruments shall comply with the provisions of Section
3(a) above. The registration of the transfer of a Registered Security by the
Security Registrar shall be deemed to be the written acknowledgment of such
transfer on behalf of the Company.
(e) No service charge shall be made for any exchange or
registration of transfer, 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 exchange or registration of transfer of Securities, other
than exchanges pursuant to Section 4 hereof or not involving any registration
of transfer.
(f) Neither the Company nor the Fiscal Agent nor any of the
offices or agencies designated for the purposes specified in Section 12(f) nor
any Transfer Agent shall be required (i) to exchange Bearer Securities for
Registered Securities
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during the period between the close of business on the Record Date (as defined
in Section 5(c) hereof) and the opening of business on the next succeeding
interest payment date, (ii) to exchange any Bearer Security (or portion
thereof) for a Registered Security if the Company shall determine that, as a
result thereof, it may incur adverse consequences under the Federal income tax
laws and regulations (including proposed regulations) of the United States in
effect or proposed at the time of such exchange, or (iii) in the event of a
redemption in part, (A) to register the transfer of Registered Securities or to
exchange any Bearer Securities for Registered Securities during a period of 15
days immediately preceding the date notice is given identifying the serial
numbers of the Securities to be redeemed, or (B) to register the transfer of
or exchange any Registered Security so selected for redemption in whole or in
part, except portions not being redeemed of Securities being redeemed in
part, or (C) to exchange any Bearer Security called for redemption; provided,
however, that a Bearer Security called for redemption may be exchanged, on the
terms and conditions set forth above, for a Registered Security that is
simultaneously surrendered, with written instruction for payment on the date
fixed for redemption, unless the redemption date is between the close of
business on any Record Date and the close of business on the next succeeding
interest payment date, in which case such exchange may only be made prior to
the Record Date immediately preceding the redemption date.
(g) The Company agrees to cause each original purchaser of
Restricted Securities to be advised that, notwithstanding that such
Securities are eligible for book-entry delivery through a central securities
repository (a "Repository"), transfer of Restricted Securities prior to the
Transfer Restriction Date otherwise than to a QIB shall be made by surrender
for registration of transfer of such Restricted Securities to any office or
agency designated for such purpose by the Company pursuant to Section 12(g)
hereof.
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4. Global Security; Exchange.
(a) The Securities (other than the Restricted Securities)
shall initially be in the form of the Global Security. The Global Security and
the Restricted Securities shall be authenticated by the Fiscal Agent upon the
order of the Company on the same conditions, in substantially the same
manner and with the same effect as the Definitive Securities. The Global
Security and the Restricted Securities will be issued upon payment to the
Company or its order in United States dollars in next-day funds cleared through
the New York Clearing House Interbank Payments System. Notwithstanding the
foregoing, if the Company requests not later than seven days prior to the
Closing Date that payment be made in same-day funds, payment shall be made by
wire transfer in same-day funds; provided, however, that the Company shall
reimburse the Managers for the cost of obtaining such same-day funds, which
reimbursements may be taken out of the proceeds of the offering. Payment shall
be made at 3:00 p.m., London time, on January 4, 1995, or at such other time on
the same or such other date, not later than 5:00 p.m., London time, on the
fifth business day in London thereafter, as the Managers and the Company may
agree. Such payment will be made (1) upon authorization from the Managers, (2)
against delivery of the amount, if any, of Restricted Securities, as the
Managers may request and as they shall direct, and (3) against delivery of the
Global Security for the balance of the Securities to The Chase Manhattan Bank,
N.A., London office, as depositary (the "Common Depositary") for The Morgan
Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), and Cedel, societe anonyme
("Cedel"). The Global Security shall be held on deposit with the Common
Depositary for the accounts of the Euroclear Operator and Cedel, for credit to
the Managers' respective Securities Clearance Accounts (or to such other
accounts as the Managers may have specified) with the Euroclear Operator or
Cedel.
(b) Contemporaneously herewith, the Company shall execute
and deliver to the Fiscal Agent at its principal corporate trust office in
New York Definitive Securities (which may be in typewritten form) in respect of
the Restricted Securities. Without unnecessary delay but in any event not
less than 15 days prior to the Exchange Date (as defined below), the Company
will execute and deliver to the Fiscal Agent at its office in London Definitive
Securities in the aggregate principal amount outstanding in the Global
Security. "Exchange Date" means the date following the expiration of the
40-day period
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commencing on the Closing Date. At the request of a holder of Restricted
Securities, the Fiscal Agent shall deliver to such holder of Restricted
Securities printed Definitive Securities in exchange for an equal aggregate
principal amount of nonprinted Restricted Securities. On or after the
Exchange Date, the Global Security may be surrendered to the Fiscal Agent to be
exchanged, as a whole or in part, for Definitive Bearer Securities without
charge, and the Fiscal Agent shall authenticate and deliver, in exchange for
such Global Security or the portions thereof to be exchanged, an equal
aggregate principal amount of Definitive Bearer Securities, but only upon
presentation to the Fiscal Agent at its office in London of a certificate
of the Euroclear Operator or Cedel with respect to the Global Security or
portions thereof being exchanged, substantially in the form of Exhibit C
hereto, to the effect that it has received a certificate or certificates in
substantially the form set forth in Exhibit D hereto dated no earlier than 15
days prior to the Exchange Date and signed by the person appearing in its
records as the owner of the Global Security or portions thereof being
exchanged. Similarly, after the Exchange Date, portions of the Global Security
may be exchanged for an equal aggregate principal amount of Definitive
Registered Securities upon presentation to the Fiscal Agent at its office in
London of a certificate substantially in the form of Exhibit E hereto.
(c) Only Bearer Securities may be issued upon receipt by
the Euroclear Operator or Cedel of a certificate or certificates in the form of
Exhibit D hereto. Bearer Securities will be delivered only outside the
United States, its territories or possessions. Only Registered Securities
may be issued upon receipt by the Euroclear Operator or Cedel of a certificate
or certificates in the form of Exhibit E hereto.
(d) The delivery to the Fiscal Agent by the Euroclear
Operator or Cedel of any certificate referred to above may be relied upon by
the Company and the Fiscal Agent as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euroclear
Operator or Cedel pursuant to the terms of this Agreement.
(e) Upon any such exchange of a portion of the Global
Security for a Definitive Security or Securities, the Global Security shall
be endorsed by the Fiscal Agent to reflect the reduction of its principal
amount by an amount equal to the aggregate principal amount of such Definitive
Security or Securities. Until so exchanged in full, the Global Security
shall
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in all respects be entitled to the same benefits under this agreement as
Definitive Securities authenticated and delivered hereunder.
(f) The Company and any Agent may deem and treat the Person
in whose name any Registered Security shall be registered upon the Security
Register as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Agreement, interest on such
Security and for all other purposes; and neither the Company nor any Agent
shall be affected by any notice to the contrary. All such payments so made to
any such Person, or upon his order, shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
5. Payment.
(a) The Company will pay or cause to be paid to the
Fiscal Agent in New York the amounts, at the times and for the purposes, set
forth herein and in the text of the Securities; the Fiscal Agent shall
thereupon remit such payments to the Paying Agent, which is authorized and
instructed by the Company and the Fiscal Agent to make payment of the principal
of and interest on and Additional Amounts (as defined in Section 2 of the
Definitive Securities), if any, on the Securities from such payments.
(b) At least 15 days prior to the date on which any
payment of Additional Amounts shall be required to be made pursuant to Section
2 of the Definitive Securities, the Company will furnish the Paying Agent, each
other paying agency of the Company and the Fiscal Agent with a certificate of
one of its duly authorized officers instructing the Paying Agent and each other
paying agency of the Company as to the amounts required (i) to be deducted or
withheld for or on account of any taxes described in Section 2 of the
Definitive Securities from a payment to be made on that date and (ii)
to be paid to each holder of Securities or coupons as Additional Amounts
pursuant to that Section. If the foregoing amounts are not uniform for all
holders, then the Company's certificate shall specify by country of residence
or other factor the amounts required to be deducted or withheld and to be paid
as Additional Amounts for each holder or class of holders of the Securities or
coupons.
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In the absence of its receipt of any such certificate from the Company, the
Paying Agent may make payment without deduction or withholding. The Company
hereby agrees to indemnify the Paying Agent, each other paying agency of the
Company and the Fiscal Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence, default or bad
faith on their part, arising out of or in connection with actions taken or
omitted by any of them in reliance on any certificate furnished pursuant to
this Section.
(c) Interest on any Registered Security that 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 is registered at the close of
business on the January 1 or July 1 immediately preceding such interest payment
date (each a "Record Date"). In case a Bearer Security is surrendered for
exchange for a Registered Security after the close of business on any Record
Date and before the opening of business on the next succeeding interest payment
date, the Fiscal Agent shall not be required to perform such transfer or
exchange of such Security.
(d) In the case of any Registered Security which is
converted after any Record Date and on or prior to the next succeeding
interest payment date (other than any Registered Security called for redemption
prior to such interest payment date), interest that is payable on such interest
payment date shall be payable on such interest payment date notwithstanding
such conversion, and such interest shall be paid to the person in whose name
that Registered Security is registered at the close of business on such Record
Date. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security which is converted, interest that is
payable after the date of conversion on such Security shall not be payable.
(e) Any interest on any Registered Security that is
payable, but is not punctually paid or duly provided for, on any interest
payment date shall forthwith cease to be payable to the registered holder
thereof on the relevant Record Date by virtue of having been such holder, and
such defaulted interest may be paid by the Company to the registered holder of
such Registered Security on a subsequent record date established by the Company
in any lawful manner if, after notice given by the Company to the Fiscal Agent
of the proposed payment pursuant to this Section 5(e), such manner of payment
shall be deemed practicable by the Fiscal Agent.
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(f) Subject to the foregoing provisions of this Section 5,
each Security delivered under this Agreement upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry all the rights
to interest accrued and unpaid, and to accrue, which were carried by such other
Security.
(g) In order to provide for the payment of the principal
of and interest on the Securities as the same shall become due and payable, the
Company shall pay to the Fiscal Agent in New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
the payment of public and private debts therein, and in same day funds, the
following amounts (and the Company shall give notice to the Fiscal Agent at
least one full business day prior to the date payment is due to the Paying
Agent as to the means of such payment), which payment the Fiscal Agent shall
thereupon remit to the Paying Agent at its office in London to be held and
applied by the Paying Agent as hereinafter set forth:
(i) The Company shall pay to the Fiscal Agent on the
business day immediately prior to each interest payment date an amount
sufficient to pay the interest due on (and Additional Amounts, if any,
on) all the Securities outstanding on such interest payment date; the
Fiscal Agent shall remit such payment to the Paying Agent, and the
Paying Agent shall apply the amounts so paid to it to the payment of
such interest (and Additional Amounts, if any) on such interest payment
date.
(ii) If the Company shall elect, or shall be required,
to redeem the Securities in accordance with Section 6 hereof, the
Company will pay to the Fiscal Agent, which shall thereupon remit such
payment to the Paying Agent on the business day immediately prior to
the date fixed for redemption thereof, an amount sufficient (after
deducting any amount then held by the Paying Agent and available for
the purpose) to pay the redemption price of the Securities called for
redemption on the redemption date or entitled to be redeemed, together
with accrued interest thereon (and Additional Amounts, if any, thereon)
to the date fixed for redemption, and the Paying Agent shall apply such
amount to the payment of the redemption price and accrued interest (and
Additional Amounts, if any) in accordance with the terms of the
Securities.
<PAGE> 14
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(iii) on the business day immediately prior to
the maturity date of the Securities, the Company shall pay to the
Fiscal Agent, which shall thereupon remit such payments to the Paying
Agent an amount which, together with any amounts then held by the
Paying Agent, and available for payment thereof, shall be equal to the
entire amount of principal and interest (and Additional Amounts, if
any) to be due on such maturity date on all the Securities then
outstanding, and the Paying Agent shall apply such amount to the
payment of the principal of and interest on (and Additional Amounts, if
any, on) the Securities in accordance with the terms of the
Securities.
6. Redemption. If, under the circumstances described in
Section 3 of the Definitive Securities, the Company shall elect to redeem the
outstanding Securities, the following provisions shall be applicable:
(a) The Company shall, at least 60 days (or such shorter
period as shall be reasonably acceptable to the Fiscal Agent) before the date
designated for such redemption, give notice to the Agents of its election to
redeem the outstanding Securities on the redemption date specified in such
notice and state in such notice that the conditions precedent to such
redemption have occurred and describe them, and in the case of redemptions
pursuant to Section 3(d) of the Definitive Securities shall provide to the
Fiscal Agent notice of the occurrence of a Change in Control (as defined in
Exhibit A hereto), and shall request the Fiscal Agent to arrange for
publication and mailing of the notice specified in Section 6(c) below.
(b) In case the Company shall give notice to the Agents of
its election to redeem the Securities, the Fiscal Agent shall cause to be
published on behalf of the Company a notice of redemption in accordance with
the provisions of Section 3 of the Definitive Securities and shall mail by
first-class mail a copy of the notice to each holder of a Registered Security
at the address of such holder as it shall appear in the Security Register. The
Fiscal Agent shall send a copy of such notice of redemption to the Company, the
Paying Agent (if different from the Fiscal Agent) and each other paying agency
of the Company.
(c) Such notice shall be published on behalf and at the
expense of the Company in an Authorized Newspaper (as defined in Section 19
hereof) in New York City, London and, so long as the Securities are listed on
the Luxembourg Stock
<PAGE> 15
-14-
Exchange, in Luxembourg, as set forth in Section 19 of this Agreement and
Section 3 of the Definitive Securities. In the case of a redemption in whole,
notice will be given once not more than 60 nor less than 30 days prior to the
date fixed for redemption. In the case of a partial redemption, notice will be
given twice, the first such notice to be given not more than 60 nor less than
45 days prior to the date fixed for redemption and the second such notice to be
given not more than 45 and not less than 30 days prior to the date fixed for
redemption. The Fiscal Agent shall notify the Company promptly of the portions
of outstanding Securities to be called for redemption.
(d) Under the circumstances described in Section 3(d) of
the Definitive Securities concerning the redemption of outstanding Securities
at the option of the holders thereof, the following provisions shall be
applicable:
(i) The Company shall give notice to the
Agents of the occurrence of a Change in Control immediately upon
the occurrence of such Change in Control. Such notice
shall state:
(A) The Holder Redemption Date (as that term
is defined in Section 3(d) of the Definitive Securities) in
respect of such Change in Control;
(B) The redemption price as set forth in
Section 3(d) of the Definitive Securities; and
(C) The place or places of payment of
the Definitive Securities.
(ii) The Fiscal Agent shall cause to be published
on behalf of the Company a notice of entitlement to redeem in
accordance with the provisions of Section 3 of the Definitive
Securities and shall mail by first-class mail a copy of such
notice to each holder of a Registered Security at the address of such
holder as it shall appear in the Security Register. The Fiscal Agent
shall send a copy of such notice of entitlement to redeem to the
Company, the Paying Agent (if different from the Fiscal Agent) and
each other paying agency of the Company.
(iii) Such notice shall be published on behalf
and at the expense of the Company in an Authorized Newspaper (as
defined in Section 19 hereof) in New York City, London and so long as
the Securities are listed on the
<PAGE> 16
-15-
Luxembourg Stock Exchange, in Luxembourg, as set forth in Section 19 of
this Agreement and Section 3 of the Definitive Securities. Notice
shall be given not later than 10 days after the later of the
Exchange Date or the date of the occurrence of a Change in Control.
(iv) Upon the deposit of any of the Definitive
Securities with the agency designated by the Company as the place for
payment of the Definitive Securities together with a duly signed and
completed redemption notice, all in accordance with the provisions of
Section 3 of the Definitive Securities, the holder of such Definitive
Security shall be entitled to receive a non-transferable receipt
evidencing such deposit.
(v) The Fiscal Agent shall notify the Company
on each business day in the ten days prior to the Holder Redemption
Date for outstanding Securities to be redeemed under this Section 6(d)
of the amount required to redeem such Securities.
7. Conversion of Securities.
(a) Subject to and upon compliance with the provisions of
this Section 7, at the option of the holder thereof, any Definitive Security
or, in the case of any Registered Security or Bearer Security of a denomination
other than $1,000, any portion of the principal amount thereof which is $1,000
or an integral multiple of $1,000 may be converted at any time on or after the
date which is, in the case of Bearer Securities, the Exchange Date or, in the
case of Restricted Securities, the date of the effectiveness of the
registration statement relating to the Common Stock issuable upon conversion of
such Restricted Securities (the "Registration Date"), at the principal amount
thereof, or of such portion thereof, into fully paid and nonassessable shares
of Common Stock of the Company (the "Common Stock") as set forth in the
Definitive Securities. The price at which shares of Common Stock shall be
delivered upon conversion (herein called the "Conversion Price") shall be
initially $30.68 per share of Common Stock. The Conversion Price shall be
adjusted in certain instances as provided in Section 4(c)(i), (ii), (iii),
(iv), (vi) and (vii) of the Definitive Securities.
(b) In order to exercise the conversion privilege, the
holder of any Security to be converted shall surrender such Security, together
with all unmatured coupons (other than the
<PAGE> 17
-16-
coupon that matures on January 15, 1998 if such Security is called for
redemption on January 15, 1998, the interest on which coupon shall be paid in
accordance with the terms of such coupon) and any matured coupons in default
appertaining thereto, at the office of the Conversion Agent or any office or
agency of the Company maintained for that purpose pursuant to Section 12(f),
accompanied by written notice, in substantially the form set forth in the
Definitive Security, to the Company, at such office or agency that the holder
elects to convert such Security or, if less than the entire principal amount of
a Registered Security or Bearer Security of a denomination other than $1,000 is
to be converted, the portion thereof to be converted. Registered Securities
surrendered for conversion during the period after the close of business on
any Record Date next preceding any interest payment date to the close of
business on such interest payment date shall be accompanied by payment of any
amount equal to interest payable on such interest payment date on the principal
amount being surrendered for conversion, unless such Registered Securities
have been called for redemption on January 15, 1998, in which case such
Registered Securities shall not be accompanied by such payment. Except as
otherwise provided in the immediately preceding sentence and subject to Section
5(d), 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.
(c) 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 cause to be issued or delivered to the
address specified by the holder in the conversion notice a certificate or
certificates for the number of full shares of Common Stock issuable or
deliverable upon conversion, together with payment, in lieu of any fraction of
a share, as provided below.
(d) In the case of any Registered Security or Bearer
Security of a denomination other than $1,000 which is converted in part only,
upon such conversion the Company shall execute and the Fiscal Agent shall
authenticate and deliver to the holder thereof, at the expense of the Company,
a new Security
<PAGE> 18
-17-
or Securities of any authorized kind or denomination as requested by such
holder, in aggregate principal amount equal to the unconverted portion of the
principal amount of such Security.
(e) So long as any rights pursuant to the Company's
Shareholder Rights Plan or any successor plan thereto (the "Rights") have not
expired, been redeemed or otherwise terminated, the Holder of any Securities
surrendered for conversion will be entitled to receive upon such conversion, in
addition to shares of Common Stock issuable upon such conversion, (a) the same
number of Rights to which a holder of a number of shares of Common Stock equal
to the Conversion Shares is entitled at the time of such conversion in
accordance with the Shareholder Rights Plan, if such conversion occurs on or
prior to the date on which the Rights become exercisable or (b) if such
conversion occurs after the date on which the Rights become exercisable (and
consequently Rights are no longer issuable pursuant to the terms of the
Shareholder Rights Plan) the same number of Rights or the same rights to
receive securities, property or cash to which a holder of a number of shares of
Common Stock equal to the Conversion Shares would have been entitled on the
date on which the Rights became exercisable, upon payment of any required
exercise price. The conversion price of the Securities will not be subject to
adjustment on account of any declaration, distribution or exercise of the
Rights.
(f) No fractional shares of Common Stock shall be issued or
delivered 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 or deliverable upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Securities (or,
in the case of Registered Securities or Bearer Securities of a denomination
other than $1,000, specified portions thereof) so surrendered. Instead of any
fractional share of Common Stock which would otherwise be issuable or
deliverable upon conversion of any Security or Securities (or, in the case of
Registered Securities or Bearer Securities of a denomination other than
$1,000; 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
Closing Price per share (as defined in the Definitive Securities) of Common
Stock at the close of business on the day preceding the day of conversion.
<PAGE> 19
-18-
(g) Whenever the Conversion Price is adjusted as
provided in the Definitive Securities:
(i) the Company shall compute the adjusted
Conversion Price in accordance with the terms of the Definitive
Securities and shall prepare a certificate signed by the President,
any Vice President or 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 with the Conversion Agent and at each office or
agency maintained for the purpose of conversion of Securities pursuant
to Section 12(f); and
(ii) 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, the Company shall promptly cause a notice setting forth
the adjusted Conversion Price to be given to the holders of the
Securities as provided in Section 19.
(h) In case:
(i) the Company shall declare a dividend or
any other distribution on its Common Stock other than a dividend or
distribution paid in cash out of its retained earnings, a regular
quarterly dividend consistent with past practice or a dividend
payable in stock for which adjustment is made pursuant to the terms of
the Definitive Securities; or
(ii) 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
(iii) 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
(iv) of the involuntary dissolution, liquidation
or winding up of the Company; or
<PAGE> 20
-19-
(v) the Company proceeds to take any other
action which would require an adjustment of the Conversion Price
pursuant to the Definitive Securities;
then the Company shall cause to be filed with the Conversion Agent and
at each office or agency maintained for the purpose of conversion of
Securities a notice setting forth the anticipated adjusted Conversion
Price and a brief statement of the facts requiring such adjustment, and
shall cause notice to be given as provided in Section 19 except that
notice need be given once at least 20 days (or 10 days in any case
specified in Section 7(h)(i) or (ii) above) prior to the applicable
record date hereinafter specified, stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, or
grant of 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 is to be determined, or (y)
the date on which a reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up or other action 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 the securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up or other action. The
failure to give notice required by this Section or any defect therein
shall not affect the legality or validity of any dividend,
distribution, rights, warrants, reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding up, or
other action, or the vote on any such action.
(i) The Company shall, at all times from and after the date
on which the Securities are convertible into Common Stock, have reserved and
available, free from preemptive 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
Securities.
(j) The Company shall in good faith use its best efforts
(i) to cause all registrations with, and to obtain any approvals by, any
governmental authority under any Federal or state law of the United States that
may be required before the shares of Common Stock issuable upon conversion of
the
<PAGE> 21
-20-
Securities may be lawfully issued or transferred and delivered pursuant to
this Section 7 and (ii) to list the shares of Common Stock required to be
issued or delivered upon conversion of Securities prior to such issue or
delivery on each national securities exchange or trading market on which the
outstanding Common Stock is listed or qualified for trading at the time of such
issue or delivery.
(k) The Company covenants that all shares of Common Stock
which may be issued or delivered upon conversion of Securities will upon
issuance be fully paid and nonassessable and, except as provided in Section 13,
the Company will pay all stamp, excise or similar taxes or duties, liens and
charges with respect to the issue thereof.
(l) All converted Securities shall be held by the Company,
and may, at any time, be delivered to the Fiscal Agent for cancellation, which
shall hold or dispose of the same in accordance with its policy for disposal of
canceled securities or as otherwise directed by the Company. Converted
Securities shall not be transferred. The Company will promptly give, or cause
to be given, written notice to the Fiscal Agent of the serial numbers of all
Securities which have been converted.
(m) In case of any consolidation with, or merger of the
Company into, any other corporation, or in case of any merger of another
corporation 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 in case of any sale or transfer of all or
substantially all of the assets of the Company, the corporation 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 Fiscal Agent an amendment to
the Fiscal Agency Agreement providing that the holder of each Definitive
Security shall have the right during the period such Security shall be
convertible as specified in the Definitive Securities to convert such
Securities 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
consolidation, merger, sale or transfer assuming, if such consolidation,
merger, sale or transfer is prior to the period such Security shall be
convertible, that the Securities were convertible at such time at the initial
Conversion Price as adjusted pursuant to the terms of the Definitive
Securities. Such amendment shall provide for adjustments which, for events
<PAGE> 22
-21-
subsequent to the effective date of such amendment, shall be as nearly
equivalent as may be practicable to the adjustments provided for in the
Definitive Securities. The above provisions of this Section shall similarly
apply to successive consolidations, mergers, sales or transfers.
(n) Subject to Section 11(j), neither the Fiscal Agent nor
the Conversion Agent or agency appointed by the Company shall at any time be
under any duty or responsibility to any holder of Securities to determine
whether any facts exist which may require any adjustment of the Conversion
Price, or with respect to the nature or extent of any such adjustment when
made, or with respect to the method employed, or herein or in the Definitive
Securities provided to be employed, in making the same. Neither the Fiscal
Agent nor the Conversion Agent or agency appointed by the Company shall 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 any
time be issued or delivered upon the conversion of any Security; and neither
the Fiscal Agent nor the Conversion Agent or agency appointed by the Company
makes any representation with respect thereto. Neither the Fiscal Agent nor
the Conversion Agent or agency appointed by the Company shall be responsible
for any failure of the Company to issue, transfer or deliver any shares of
Common Stock or stock certificates or other securities or property or to make
any cash payment upon the delivery of any Security for the purpose of
conversion or to comply with any of the covenants contained in this
Section 7.
(o) Any Common Stock issued upon conversion of a Restricted
Security ("Restricted Common Stock") at any time prior to the date which is
three years after the Closing Date when a registration statement in respect of
such Common Stock is not effective under the Securities Act shall be subject to
the restrictions on transfer set forth in Section 3(a) hereof to the same
extent as such Restricted Securities which were so converted. All shares of
Restricted Common Stock shall bear the legend and transfer requirements set
forth on the form of Registered Security set forth as Exhibit A hereto.
Nothing in this paragraph shall in any way diminish the obligations of the
Company under Section 7(q).
(p) The Fiscal Agent has no duty to determine when an
adjustment under this Section 7 should be made, how it should be made or
whether it should be made. The Fiscal Agent shall not be accountable for and
makes no representation as to
<PAGE> 23
-22-
the validity or value of any securities or assets issued upon conversion of the
Securities.
(q) The Company covenants to use its best efforts to have
effective under the Securities Act, by a registration statement on Form S-3 or
on such other form that may be used for the ongoing or "shelf" registration of
such securities (a "Shelf Registration"), no later than September 30, 1995, any
Common Stock issuable upon conversion of the Restricted Securities such that
the Common Stock issuable upon such conversion may be lawfully issued or
transferred and delivered. The Company shall keep such Shelf Registration
continuously effective during a period ending three years after the date of
this Fiscal Agency Agreement or such shorter period that terminates on the date
on which all Common Stock issuable upon conversion of the Restricted Securities
has been sold pursuant to such Shelf Registration. The Company will bear all
reasonable costs and expenses of such Shelf Registration.
8. Surrendered Securities. All Securities, together with
any coupons appertaining thereto, surrendered for payment, redemption,
retirement, transfer or exchange and all coupons paid through the application
of interest installments shall be delivered to the Fiscal Agent. In any such
case the Fiscal Agent shall cancel all Securities and coupons not previously
canceled and deliver to the Company or dispose of all such Securities and
coupons in accordance with the Fiscal Agent's policy for disposal of canceled
securities.
9. Mutilated, Destroyed, Stolen or Lost Securities. The
Fiscal Agent is hereby authorized, in accordance with the provisions of the
Securities and this Section, from time to time to authenticate and deliver
Securities in exchange for or in lieu of Securities that become mutilated,
destroyed, stolen or lost, upon receipt of indemnity and such other documents
or proof as may be required in form and substance satisfactory to the Fiscal
Agent and the Company. Every Security authenticated and delivered in exchange
for or in lieu of any such Security shall be considered the obligation of the
Company and shall carry all the rights to interest accrued and unpaid and to
accrue which were carried by such Security, and notwithstanding anything to the
contrary herein contained, but without diminishing the effect of any indemnity
required under this Section 9 any new Bearer Security shall have attached
thereto such coupons that neither gain nor loss in interest shall result from
such exchange or substitution.
<PAGE> 24
-23-
10. Signatures. Securities shall be executed on behalf of
the Company by its Chairman, President, its Secretary, any Vice President or
its Treasurer or any Assistant Secretary, any of whose signatures may be
manual or in facsimile, and any coupons appertaining thereto shall be executed
on behalf of the Company by the facsimile signature of its Chairman,
President, its Secretary, any Vice President or its Treasurer or any Assistant
Secretary. Any signature in facsimile may be imprinted or otherwise reproduced
on the Securities. The Company may adopt and use the signature or facsimile
signature of any person who shall be a Chairman, President, Secretary, Vice
President, Treasurer or Assistant Secretary at the time of the execution of the
Securities, notwithstanding the fact that at the time the Securities shall be
authenticated and delivered, or disposed of, such person shall have ceased to
have held such office by virtue of which such person so executed such security.
11. Agreements Concerning Agents. Each of the Agents
accepts its obligations herein and in the Securities, upon the terms and
conditions hereof and thereof, including the following, to all of which the
Company agrees and to all of which the rights hereunder of the holders from
time to time of the Securities and coupons shall be subject:
(a) Each of the Agents shall be entitled to reasonable
compensation for all services rendered by such Agent, as separately agreed to
from time to time by the Company and such Agent, and the Company agrees to pay
promptly such compensation and to reimburse each of the Agents for the
reasonable out-of-pocket expenses (including, but not limited to, reasonable
counsel fees and expenses) incurred by such Agent without negligence, default
or bad faith on the part of such Agent in connection with the services
rendered by it hereunder. The Company also agrees to indemnify each of the
Agents and each other paying agency and conversion agency of the Company for,
and to hold it harmless against, any loss, liability or expense (including the
costs and expenses of defending against any claim of liability, including the
reasonable fees and expenses of its counsel) incurred without negligence,
default or bad faith on the part of such Agent or other paying agency and
conversion agency, arising out of or in connection with its acting as an Agent
or other paying agency and conversion agency of the Company hereunder. The
obligations of the Company under this Section 11(a) shall survive payment of
the Securities or the resignation or removal of any Agent or paying agency and
conversion agency.
<PAGE> 25
-24-
(b) In acting under this Agreement and in connection with
the Securities, each of the Agents and each other paying agency and conversion
agency of the Company is acting solely as agent of the Company, and does not
assume any obligation, or relationship of agency or trust, for or with any of
the owners or holders of the Securities or coupons, except that all funds held
by the Paying Agent or any other paying agency of the Company for payment of
principal of or interest on (or Additional Amounts, if any, on) the Securities
shall be held in trust but need not be segregated from other funds except as
required by law; and shall be applied as set forth herein and in the
Securities; provided, however, that monies paid by the Company to the Paying
Agent or any other paying agency of the company for the payment of principal of
or interest on (or Additional Amounts, if any, on) Securities remaining
unclaimed at the end of two years after such principal or interest (or
Additional Amounts, if any) shall have become due and payable shall be repaid
to the Company, as provided and in the manner set forth in the Definitive
Securities, whereupon the aforesaid trust shall terminate and all liability of
the Paying Agent or such other paying agency of the Company with respect
thereto shall cease.
(c) Each of the Agents and each other paying agency and
conversion agency of the company may consult with one or more counsel
satisfactory to it (including counsel to the Company), and the written
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the opinion of such counsel.
(d) Each of the Agents and each other paying agency and
conversion agency of the Company shall be protected and shall incur no
liability for or in respect of any action taken, omitted or suffered by it
without negligence, default or bad faith on its part in reliance upon any
Security or coupon, notice, direction, consent, certificate, affidavit,
statement or other paper or document believed in good faith by such Agent or
such other paying agency and conversion agency of the Company to be genuine
and to have been signed by the proper party or parties.
(e) Each of the Agents and each other paying agency and
conversion agency of the Company, its officers, directors and employees may
become the owner of, or acquire any interest in, any Securities or coupons,
with the same rights that it or they would have if it were not an Agent or such
other paying
<PAGE> 26
-25-
agency of the Company hereunder, and may engage or be interested in any
financial or other transaction with the Company and its affiliates and may act
on, or as depositary, trustee or agent for, any committee or body of holders of
Securities or other obligations of the Company, as freely as if it were not an
Agent or a paying agency or conversion agency of the Company hereunder.
(f) Neither the Paying Agent nor any other paying agency of
the Company shall be under any liability for interest on, or have any
responsibility to invest, any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Securities.
(g) The recitals contained herein and in the Securities
(except in the Fiscal Agent's certificates of authentication), shall be taken
as the statements of the Company, and the Agents assume no responsibility for
the correctness of the same. None of the Agents makes any representation as to
the validity or sufficiency of this Agreement or the Securities or coupons or
the Company's offering circular or any other offering material, except for
such Agent's due authorization to execute this Agreement. Neither the Agents
nor any other paying agency of the Company shall be accountable for the use or
application by the Company of the proceeds of any Securities.
(h) The Agents and each other paying agency and con-
version agency of the Company shall be obligated to perform such duties and
only such duties as are herein and in the Securities specifically set forth
and no implied duties or obligations shall be read into this Agreement or the
Securities against the Agents or any other paying agency or conversion agency
of the Company. The Agents shall not be under any obligation to take any
action hereunder which may tend to involve them in any expense or liability,
the payment of which within a reasonable time is not, in their reasonable
opinion, assured to them.
(i) Unless herein or in the Securities otherwise
specifically provided, any order, certificate, notice, request, direction, or
other communication, from the Company made by or given by it under any
provision of this Agreement shall be in writing and shall be sufficient if
signed by the Chairman, President, the Secretary, Assistant Secretary, any Vice
President or the Treasurer of the Company.
<PAGE> 27
-26-
(j) Anything in this Agreement to the contrary not-
withstanding, none of the Agents shall incur any liability hereunder, except as
a result of negligence, default or bad faith attributable to it or its officers
or employees, and shall incur no liability for the negligence or bad faith of
its agents appointed by it with due care; provided, however, that the Agent
shall notify the Company of the appointment of any such agents.
(k) Except as specifically provided herein or in the
Securities, none of the Agents shall have any duty or responsibility in case
of any default by the Company in the performance of its obligations (including,
without limiting the generality of the foregoing, any duty or responsibility to
accelerate all or any of the Securities or to initiate or to attempt to initi-
ate any proceedings at law or otherwise or to make any demand for the payment
thereof upon the Company).
(l) To the extent permitted by law, none of the Agents
shall be liable for any loss caused by events beyond the reasonable control of
the Agents, including any malfunction, interruption of or error in the
transmission of information caused by any machines or system or interception of
communication facilities, abnormal operating conditions or acts of God. To
the extent permitted by law, the Agents shall have no liability whatsoever
for any consequential, special, indirect or speculative loss or damages
suffered by the Company or any other persons in connection with the
transactions contemplated by and the relationship established by this Agreement
even if the Agents have been advised as to the possibility of the same. These
provisions will override all other provisions of this Agreement.
12. Offices, Resignation, Successors, Etc. of
Agents; Paying, Conversion and Transfer
Agencies.
(a) The Company agrees that, until none of the Securities
and coupons is outstanding or until monies for the payment of all principal
of and interest on (and Additional Amounts payable pursuant to Section 2 of the
Definitive Securities, if any, on) all outstanding Securities shall have been
made available at the office of the Paying Agent and shall have been returned
to the Company as provided in the Securities, there shall at all times be a
Fiscal Agent in the Borough of Manhattan, New York City, which shall be a bank
or trust company organized and doing business under the laws of the United
<PAGE> 28
-27-
States of America or any State of the United States of America, in good
standing and authorized under such laws to exercise corporate trust powers, a
Paying Agent and a Conversion Agent, each having offices in a city in Western
Europe and in New York City, which shall be a bank or trust company organized,
in good standing and doing business under the laws of the United States of
America or of any State of the United States of America, and a paying agency
and a conversion agency in at least one city in Western Europe, which shall be
Luxembourg so long as the Securities are listed on the Luxembourg Stock
Exchange.
(b) Each of the Agents may at any time resign as such Agent
by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective;
provided, however, that such date shall never be less than ninety days after
receipt of such notice by the Company unless the Company agrees to accept less
notice. Each of the Agents hereunder may be removed at any time by the filing
with it at least 30 days prior to the date of such proposed removal, an
instrument in writing signed on behalf of the Company and specifying such
removal and the date when it is intended to become effective. Such resignation
or removal shall take effect upon the date of the appointment by the Company,
as hereinafter provided, of a successor Fiscal Agent, Conversion Agent,
Transfer Agent or Paying Agent, as the case may be, and the acceptance of such
appointment by such successor Agent. Upon its resignation or removal, each of
the Agents shall be entitled to the payment by the Company of its compensation
for the services rendered hereunder and to the reimbursement of all reasonable
out-of-pocket expenses incurred in connection with the services rendered
hereunder by such Agent.
(c) In case at any time any of the Agents shall resign, or
shall be removed, or shall be incapable of acting, or shall file a voluntary
petition as a debtor under Chapter 7 or 11 of Title 11 of the United States
Code or have an order for relief-entered against it as a debtor under Chapter 7
or 11 of the Title 11 of the United States Code or make an assignment for the
benefit of its creditors or consent to the appointment of a receiver of all or
any substantial part of its property, or shall admit in writing its inability
to pay or meet its debts as they mature, or if an order of any court shall be
entered approving any petition filed by or against the Fiscal Agent under any
legislation similar to the provisions of Title 11 of the United States Code or
against any of the Agents under the provisions of any legislation similar to
the
<PAGE> 29
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provisions of Title 11 of the United States Code, or if a receiver of it or of
all or any substantial part of its property shall be appointed, or if any
public officer shall take charge or control of it or of its property or
affairs, for the purpose of rehabilitation, conservation or liquidation, a
successor Agent, qualified as aforesaid, shall be appointed by the Company by
an instrument in writing. Upon the appointment as aforesaid of a successor
Agent and acceptance by it of such appointment, the Agent so superseded shall
cease to be such Agent hereunder. If no successor Agent shall have been so
appointed by the Company and shall have accepted appointment as hereinafter
provided, any holder of a Security, on behalf of itself and all others
similarly situated, or any Agent may petition any court of competent
jurisdiction for the appointment of a successor Agent and shall promptly
notify the Company of such action.
(d) Any successor Fiscal Agent, Conversion Agent, Transfer
Agent or Paying Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Agent, without any further
act, deed or conveyance, shall become vested with all the authority, rights,
powers, trusts, immunities, duties and obligations of such predecessor with
like effect as if originally named as such Agent hereunder, and such
predecessor, upon payment of its charges and disbursements then unpaid, shall
thereupon become obligated to transfer, deliver and pay over, and such
successor Agent shall be entitled to receive, all monies, securities or other
property on deposit with or held by such predecessor, as such Agent hereunder.
(e) Any corporation or bank into which any of the Agents
hereunder may be merged or converted, or any corporation or bank with which
such Agent may be consolidated, or any corporation or bank resulting from any
merger, conversion or consolidation to which such Agent shall be a party, or
any corporation or bank to which such Agent shall sell or otherwise transfer
all or substantially all the assets and business of such Agent, or any
corporation to which the Fiscal Agent shall sell or otherwise transfer all or
substantially all of its corporate trust business; provided, however, that it
shall satisfy all requirements of this Agreement and the Definitive Securities
to act as such Agent, shall be the successor to such Agent under this Agreement
without the execution or filing of any document or any further act on the part
of any of the parties hereto.
<PAGE> 30
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(f) So long as there shall be a Fiscal Agent and Paying
Agent hereunder, the Company shall maintain agencies (i) where Registered
Securities (but not Bearer Securities or coupons) may be presented for
surrender and payment (and for the payment of Additional Amounts on the
Registered Securities, if any) and where Securities may be surrendered for
conversion in the Borough of Manhattan, New York City, and (ii) where
Securities and coupons may be surrendered for payment (and for the payment of
Additional Amounts, if any (pursuant to Section 2 of the Definitive
Securities), on Bearer Securities) and where Securities may be surrendered for
conversion in at least one city in Western Europe, which shall be Luxembourg so
long as the Securities are listed on the Luxembourg Stock Exchange. The Company
now intends to maintain additional agencies (subject to applicable laws and
regulations) where Bearer Securities and coupons may be surrendered for
payment (and for the payment of Additional Amounts, if any (pursuant to Section
2 of the Definitive Securities), on Bearer Securities), where Registered
Securities may be surrendered for payment and where Securities may be
surrendered for conversion in London, England and Luxembourg, and during such
period to keep the Agents advised of the names and locations of such agencies.
Unless the Company shall otherwise notify each of the Agents in writing, the
sole such paying agencies and conversion agencies shall be the agencies
specified in the Securities. The Company authorizes the Paying Agent to pay to
or to the order of the aforesaid agencies, upon demand by such agencies, funds
for the payment of the principal of and interest on (and Additional Amounts
pursuant to Section 2 of the Definitive Securities, if any, on) the Securities.
Except as otherwise arranged by the Company, the Fiscal Agent shall arrange for
the payment of the compensation of such paying agencies for their services as
such, and the Company shall pay to the Fiscal Agent from time to time
sufficient funds to make such payments.
(g) So long as there shall be a Fiscal Agent, Paying Agent
and Conversion Agent hereunder, the Company shall maintain, in New York City,
a Security Registrar and additional transfer agencies (the "Transfer Agents")
(i) where Registered Securities may be surrendered for exchange for Registered
Securities and (ii) in at least one city in Western Europe, where Bearer
Securities may be delivered in exchange for Bearer Securities or for
Registered Securities. Consistent with applicable laws and regulations,
including the provisions of the federal income tax laws of the United States,
such agencies may be the same agencies as or different agencies from those
maintained by the Company pursuant to Section 12(f).
<PAGE> 31
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The Company hereby appoints Banque Internationale a Luxembourg
S.A. ("Banque Luxembourg"), 69, route d'Esch, L-1470 Luxembourg, as Transfer
Agent for such exchanges. The transfer, exchange and registration of
transfer or exchange of Registered Securities shall be made by the Fiscal
Agent in New York City or by Banque Luxembourg, as agent for the Fiscal Agent,
so long as the Securities are registered on the Luxembourg Stock Exchange.
13. Taxes. The Company will pay all stamp taxes and other
similar duties, if any, that may be imposed by the United States of America or
the United Kingdom, or any state or political subdivision thereof or taxing
authority therein, with respect to the execution or delivery of this Agreement,
or the issuance of the Global Security, or the exchange from time to time of
the Global Security for Definitive Securities, or with respect to the issue or
delivery of shares of Common Stock on conversion of Securities; provided,
however, that the Company shall not be required to pay any tax or duty which
may be payable in respect of any transfer involved in the issue or 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 duty or has established to the
satisfaction of the Company that such tax or duty has been paid.
14. Meetings and Votes of Holders.
(a) A meeting of holders of Securities may be called at any
time and from time to time pursuant to this Section for any of the following
purposes: (i) to give any notice to the Company or to the Fiscal Agent, or to
give any directions to the Fiscal Agent, or to consent to the waiving of any
default hereunder or under the Definitive Securities and its consequences, or
to take any other action authorized to be taken by holders of Securities
pursuant to Section 9 of the Definitive Securities; or (ii) to take any other
action authorized to be taken by or on behalf of the Securities under any other
provision of this Agreement, the Definitive Securities or under applicable
law.
(b) Meetings of holders of Securities may be held at such
place or places in New York City or London as the Fiscal Agent or, in case of
its failure to act, the Company or the holders calling the meeting shall from
time to time determine.
<PAGE> 32
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(c) The Fiscal Agent may at any time call a meeting of
holders of Securities to be held at such time and at such place in any of the
locations designated in Section 14(b) hereof as the Fiscal Agent shall
determine. Notice of every meeting of holders shall be made as specified in
Section 19 hereof, except that such notice shall set forth the time and the
place of such meeting, in general terms the action proposed to be taken at such
meeting and a general description of regulations applicable to such meeting
and shall be published at least three times in the publications specified in
such Section 19, the first publication to be not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(d) In case at any time the Company or the holders of at
least 25% in aggregate principal amount of the Securities shall have requested
the Fiscal Agent to call a meeting of the holders, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Fiscal Agent shall not have given the first notice of such meeting within
21 days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the holders of
Securities in the amount above specified may determine the time and the place
in either of the locations designated in Section 14(b) hereof for such meeting
and may call such meeting to take any action authorized in Section 14(a) hereof
by giving notice thereof as provided in Section 14(c) hereof.
(e) To be entitled to vote at any meeting of holders of
Securities, a person shall be (i) a holder of one or more Securities, or (ii) a
person appointed by an instrument in writing as proxy for a holder or holders
of Securities by such holder or holders, which proxy need not be a holder of
Securities. The only persons who shall be entitled to be present or to speak
at any meeting of holders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Fiscal Agent and its
counsel and any representatives of the Company and its counsel.
(f) The persons entitled to vote a majority in
principal amount of the outstanding Securities shall constitute a quorum for
the transaction of all business specified in Section 14(a) hereof. No business
shall be transacted in the absence of a quorum unless a quorum is represented
when the meeting is called to order. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of the holders of
<PAGE> 33
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Securities (as provided in Section 14(d) hereof), be dissolved. In any other
case the meeting shall be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 14(c) hereof except that such notice need
be published only once but must be given not less than five days prior to the
date on which the meeting is scheduled to be reconvened. Subject to the
foregoing, at the reconvening of any meeting adjourned for a lack of a quorum
the persons entitled to vote 25% in principal amount of the Securities shall
constitute a quorum for the taking of any action set forth in the notice of the
original meeting. Notice of the reconvening of an adjourned meeting shall
state expressly the percentage of the aggregate principal amount of the
Securities that shall constitute a quorum. At a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid, any
resolution and all matters (except as limited by Section 9 of the Definitive
Securities) shall be effectively passed and decided if passed or decided by the
persons entitled to vote a majority in principal amount of the Securities
represented and voting at such meeting; provided, however, that such amount
shall be not less than 25% in principal amount of the Securities outstanding.
Any holder of a Security who has executed an instrument in writing appointing
a person as his proxy shall be deemed to be present for the purposes of
determining a quorum and be deemed to have voted; provided, however, that such
holder shall be considered as present or voting only with respect to the
matters covered by such instrument in writing. Any resolution effectively
passed or decision taken at any meeting of the holders of Securities duly held
in accordance with this Section 14 shall be binding on all the holders of
Securities whether or not present or represented at the meeting.
(g) Notwithstanding any other provision of this Agreement,
the Fiscal Agent may make such reasonable regulations as it may deem
advisable for any meeting of holders of Securities in regard to proof of the
holding of Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall reasonably deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Bearer Securities shall be proved by the production
of the Bearer Securities or by a certificate executed, as
<PAGE> 34
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depositary, by, and the appointment of any proxy shall be proved by having the
signature of the persons executing the proxy witnessed or guaranteed by, in
each case, any trust company, bank or banker satisfactory to the Fiscal
Agent. Such regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine without the
proof specified herein or other proof. The holding of Registered Securities
shall be proved by the registry books maintained in accordance with Section
2(d) hereof or by a certificate or certificates of the Fiscal Agent in its
capacity as the Company's agent for the maintenance of such books.
(h) The Fiscal Agent shall, by an instrument in writing,
appoint a temporary chairperson of the meeting, unless the Company or the
holders of Securities called the meeting or requested the Fiscal Agent to call
the meeting as provided in Section 14(d) hereof, in which case the Company or
the holders calling or requesting the meeting, as the case may be, shall in
like manner appoint a temporary chairperson. A permanent chairperson and a
permanent secretary of the meeting shall be elected by vote of the holders of a
majority in principal amount of the Securities represented at the meeting and
entitled to vote.
(i) At any meeting each holder or proxy shall be entitled
to one vote for each U.S. $1,000 principal amount of Securities held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Securities challenged as not outstanding and
ruled by the chairperson of the meeting to be not outstanding. The chair-
person of the meeting shall have no right to vote, except as a holder or proxy.
(j) Any meeting of holders of Securities duly called
pursuant to Section 14(c) or 14(d) hereof at which a quorum is present may be
adjourned from time to time by vote of the holders (or proxies for the
holders) of a majority in principal amount of the Securities represented at the
meeting and entitled to vote; and the meeting may be held as so adjourned
without further notice.
(k) The vote upon any resolution submitted to any meeting
of holders of Securities shall be by written ballots on which shall be
subscribed the signatures of the holders of Securities or of their
representatives by proxy and the serial number or numbers of the Securities
held or represented by
<PAGE> 35
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them. The permanent chairperson of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of holders
of Securities shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on
any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was published as provided in Section 14(c) or 14(d)
hereof and, if applicable, Section 14(f) hereof. Each copy shall be signed
and verified by the affidavits of the chairperson and secretary of the meeting,
and one such copy shall be delivered to the Company and another to the Fiscal
Agent to be preserved by the Fiscal Agent, the copy delivered to the Fiscal
Agent to have attached hereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein
stated.
15. Merger, Consolidation or Sale of Assets.
(a) If at any time there shall be a merger, consoli-
dation, sale or conveyance of assets or assumption of obligations to which
any of the covenants contained in Section 6 of the Definitive Securities
pertains, then in any such event the successor or assuming corporation referred
to therein will promptly deliver to the Fiscal Agent:
(i) A certificate signed by an executive officer
of such successor or assuming corporation stating that as of the time
immediately after the effective date of any such transaction the
covenants of the Company contained in the Definitive Securities have
been complied with and the successor or assuming corporation is not in
default under the provisions of this Agreement or the Securities, as
applicable; and
(ii) A written opinion of legal counsel (who may be
an employee of or counsel to the successor or assuming corporation)
stating that in such counsel's opinion such covenants have been
complied with and that any instrument or instruments executed in the
performance of such covenants comply with the requirements thereof.
<PAGE> 36
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In case of any such merger, consolidation, sale, conveyance
or assumption, such successor or assuming corporation shall succeed to and be
substituted for the Company with the same effect, subject to (in the case of a
merger to which the Company is a party) Section 6(b) of the Definitive
Securities, as if it had been name herein and in the Definitive Securities as
the Company; the Company shall thereupon be relieved of any further obligation
or liability hereunder or upon the Securities, and the Company, as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound up or liquidated. If applicable, such successor or assuming corpora-
tion thereupon may cause to be signed, and may issue either in its own name or
in the name of the Company any or all of the Securities issuable hereunder
which theretofore shall not have been executed on behalf of the Company and
delivered to the Fiscal Agent; and, upon the order or such successor or
assuming corporation, instead of the Company, and subject to all the terms,
conditions and limitations in this Agreement prescribed, the Fiscal Agent shall
authenticate and shall deliver any Securities which previously shall have
been signed and delivered by the officers of the Company to the Fiscal Agent
for authentication, and any Securities which such successor or assuming cor-
poration thereafter shall cause to be signed and delivered to the Fiscal Agent
for that purpose. All the Securities so issued shall in all respects have the
same legal rank and benefit under this Agreement as the Securities
theretofore or thereafter issued in accordance with the terms of this Agree-
ment as though all of such Securities had been issued at the date of the
execution hereof.
In case of any merger, consolidation, sale, conveyance or
assumption, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
In the event any merger, consolidation, sale, conveyance or
assumption results in a Change of Control, each holder of Definitive Securities
may have the right to require the Company to purchase such Definitive
Securities in the manner provided in Section 3(d) of the Definitive
Securities.
(b) The Fiscal Agent may rely on the documents delivered
pursuant to this Agreement by any successor or assuming corporation pursuant
to this Section 15 as conclusive evidence that any such merger,
consolidation, sale, conveyance or assumption complies with the provisions of
this Section and the Securities.
<PAGE> 37
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16. Governing Law; Limitations on Interest.
(a) This Agreement, the Securities and any coupons
appertaining thereto shall be governed by and construed in accordance with the
law of the State of New York, United States of America, without giving effect
to its choice of law rules.
(b) It is the intention of the Company to conform strictly
to all applicable usury laws and any subsequent revisions, repeals or
judicial interpretations thereof. Without in any way limiting the parties'
strict intent to have the substantive laws of the State of New York apply to
all of the terms of this Agreement, the Securities and coupons, including
without limitation, to the interest rate provisions thereof, if the
transactions contemplated hereby would be usurious under any applicable law,
then, in that event, notwithstanding anything to the contrary in the
Securities, the coupons or this Fiscal Agency Agreement, it is agreed as
follows: (i) the aggregate of all consideration which constitutes interest
under applicable law that is contracted for, taken, reserved, charged,
collected or received under a Security, a coupon or this Fiscal Agency
Agreement or otherwise in connection with such Security or coupon shall under
no circumstances exceed the maximum amount allowed by applicable law, and any
excess shall be credited to the principal amount of such Security or the
Security to which such coupon appertains (or, if the principal amount of such
Security shall have been paid in full, refunded to the Company); and (ii) in
the event that the maturity of any Security is accelerated or in the event of
any redemption or in the event of any conversion of such Security, then such
consideration that constitutes interest under applicable law may never include
more than the maximum amount allowed by applicable law, and excess interest, if
any, provided for in this Fiscal Agency Agreement, such Security or any coupon
appertaining thereto or otherwise shall be cancelled automatically as of the
date of such acceleration, redemption or conversion and, if theretofore paid,
shall be credited to the principal amount of such Security or the Security to
which such coupon appertains (or, if the principal amount of such Security
shall have been paid in full, refunded by such holder of Securities to the
Company), to the extent permitted by applicable law. All calculations made to
compute the rate of interest that is contracted for, taken, reserved, charged,
collected or received under any Security or coupon or under this Fiscal Agency
Agreement or otherwise in connection with such Security or any coupon
appertaining thereto for the purpose of determining whether such rate exceeds
the maximum amount allowed by applicable law
<PAGE> 38
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shall be made, to the extent permitted by such applicable law, by amortizing,
prorating, allocating and spreading during the period of the full stated term
of such Security all interest at any time contracted for, taken, reserved,
charged or received by such Holder or by the Fiscal Agent on behalf of any such
holder of Securities in connection therewith so that the amount or rate of
interest charged for any and all periods of time during the term of the
Security is to the greatest extent possible less than the maximum amount or
rate of interest allowed to be charged by law during the relevant period of
time. Notwithstanding any of the foregoing, if at any time applicable laws
shall be changed so as to permit a higher rate or amount of interest to be
charged than that permitted prior to such change, then unless prohibited by
law, references in this Fiscal Agency Agreement or any Security to "applicable
law" when used in the context of determining the maximum interest or rate of
interest that can be charged, shall be deemed to refer to such applicable law
as so amended to allow the greater amount or rate of interest.
The Fiscal Agent shall have no responsibility to determine
whether any payments with respect to the Securities are in compliance with any
applicable usury laws and subsequent revisions, repeals or judicial
interpretations thereof. Notwithstanding any provisions of this Fiscal
Agency Agreement or the Securities, the Fiscal Agent and any paying agent of
the Company may continue to make payments on the Securities without regard to
the application of this Section 16(b) unless and until it shall have received
from the Company (1) an opinion of the Company's counsel to the effect that, as
the result of a final judicial decision by a court of competent jurisdiction
(which decision need not be rendered in litigation specifically relating to the
Debentures), any payments with respect to the Securities will exceed the
maximum amount allowed by applicable law and that any direction to the Fiscal
Agent by the Company for action under this Section 16(b) is in compliance with
all applicable laws and the provisions of this Fiscal Agency Agreement and the
Securities and (2) a Certificate of an Authorized Officer setting forth the
action required to be taken with respect to the Securities and coupons pursuant
to this Section 16(b), together with any computations or calculations with
respect thereto, and stating that such action is in compliance with the
provisions of this Fiscal Agency Agreement and the Securities.
17. Amendments. This Agreement may be amended by the
parties hereto, and certain provisions hereof may be
<PAGE> 39
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waived, in the manner provided in Section 9 of the Definitive Securities. This
Agreement may also be amended by the parties hereto, without the consent of the
holder of any Security, for the purposes set forth in Section 9 of the
Definitive Securities and for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective provision contained herein or
in any manner that the parties may mutually deem necessary or desirable and
that shall not adversely affect the interests of the holders of the Securities;
provided, however, that the Fiscal Agent shall be entitled to rely on an
opinion of counsel provided by the Company to the foregoing effect.
18. Agent for Service of Process. As long as any of the
Securities or coupons appertaining thereto remain outstanding, the Company
will at all times have an authorized agent in the City of New York, upon whom
process may be served in any legal action or proceeding arising out of or
relating to this Agreement or any Security or any coupons appertaining thereto.
Service of process upon such agent and written notice of such service mailed or
delivered to the Company shall to the extent permitted by law be deemed in
every respect effective service of process upon the Company in any such legal
action or proceeding. The Company hereby appoints the Fiscal Agent as its
agent for such purpose, and covenants and agrees that service of process in any
legal action or proceeding may be made upon it at the office of such agent at
450 West 33rd Street, 15th Floor, New York, New York 10001, U.S.A., Attention:
Corporate Trust, Agency Administration (or such other address in the City of
New York, as may be the principal corporate trust office of such agent in New
York), unless and until the Company shall designate another agent for such
purpose by written notice to the Fiscal Agent. If the Fiscal Agent receives
any such service of process, it shall promptly notify the Company of such
service and remit any documents to the Company.
19. Notices.
All notices hereunder shall be deemed to have been given when
deposited in the mail as first class mail, registered or certified, return
receipt requested, postage prepaid, addressed to any party hereto as follows:
<PAGE> 40
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Address
-------
The Company Apache Corporation
One Post Oak Central
2000 Post Oak Blvd.,
Suite 100
Houston, TX 77056-4400
Attn: Corporate Secretary
The Fiscal Agent Chemical Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attn: Corporate Trust
Agency Administration
125 London Wall
London, EC2Y 5AJ
England
Attn: Morgan Rees Price
The Paying Agent Chemical Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Attn: Corporate Trust
Agency Administration
125 London Wall
London, EC2Y 5AJ
England
Attn: Morgan Rees Price
or at any address of which any of the foregoing shall have notified the others
in writing.
Notices to holders of the Securities shall be given by
publication in the English language in an Authorized Newspaper. For purposes
of this Agreement, the term "Authorized Newspaper" means a newspaper
customarily published on each business day in morning editions, whether or not
it shall be published in Saturday, Sunday or holiday editions, such as The Wall
Street Journal (Eastern edition) in New York City, the Financial Times in
London and the Luxemburger Wort in Luxembourg. If by reason of the temporary
or permanent suspension of publication of any newspaper or by reason of any
other cause it shall be impossible to make publication of such notice in an
Authorized Newspaper as herein provided, then such publication or other notice
in lieu thereof as shall be made by the Fiscal
<PAGE> 41
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Agent shall constitute sufficient publication of such notice, if such
publication or other notice shall, so far as may be possible, approximate the
terms and conditions of the publication in lieu of which it is given.
Notices will be mailed to registered holders of Registered Securities at their
registered address as the same shall appear on the books of the Fiscal Agent on
the day fifteen days prior to such mailing. The Fiscal Agent shall promptly
furnish to the Company and to each other paying agency of the Company a copy of
each notice so published or mailed.
20. No Recourse Against Others. No director, officer,
employee or shareholder, as such, of the Company shall have any liability for
any obligations of the Company under the Securities or this Agreement or for
any claim based on, in respect of or by reason of such obligations or their
creation. Each holder accepting a Security waives and releases all such
liability. This waiver and release is part of the consideration for the
issue of the Securities.
21. Counterparts. This Agreement may be executed in
separate counterparts, and by each party separately in a separate
counterpart, each such counterpart, when so executed and delivered, to be an
original. Such counterparts shall together constitute but one and the same
instrument.
<PAGE> 42
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above written.
APACHE CORPORATION
By: /s/ Clyde E. McKenzie
Name: Clyde E. McKenzie
Title: Vice President and Treasurer
CHEMICAL BANK, as Fiscal Agent
By: /s/ Lisa J. Price
Name: Lisa J. Price
Title: Vice President
<PAGE> 43
(FORM OF FACE OF REGISTERED SECURITY)
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO U.S. PERSONS EXCEPT TO QUALIFIED
INSTITUTIONAL BUYERS (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
ACCORDANCE WITH RULE 144A OR OTHERWISE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
Each purchaser, by its purchase of this Security, represents,
acknowledges and agrees that: (1) it is purchasing "restricted" securities
which have not been registered under the Securities Act; (2) if it should
decide to dispose of any of such Securities, it will not offer, sell, transfer,
pledge, hypothecate or otherwise dispose of any of such Securities except (A)
pursuant to Rule 144A under the Securities Act, (B) pursuant to Regulation S
under the Securities Act, (C) to a sophisticated institutional investor
approved as an "accredited investor" (within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act by a broker or dealer registered under
Section 15 of the Securities Exchange Act of 1934 in a transaction confirmed in
an opinion of U.S. counsel to be exempt from the registration requirements of
the Securities Act, (D) pursuant to any other exemption from, or otherwise in a
transaction not subject to, the registration requirements of the Securities Act
as confirmed in an opinion of U.S. counsel or (E) pursuant to an effective
registration statement under the Securities Act, in each case in accordance
with the more specific procedures and requirements set forth in the Fiscal
Agency Agreement and in compliance with any applicable state laws of the United
States governing the offer or sale of securities.
If held by The Depository Trust Company: Unless this
certificate is presented by an authorized representative of The Depository
Trust Company to the issuer or its agent for registration or transfer,
exchange or payment, and any certificate issued in exchange for this
certificate is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner
hereof, Cede & Co., has an interest herein.
<PAGE> 44
A-2
APACHE CORPORATION
(Incorporated in the State of Delaware)
6% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2002
CUSIP No. 037411AH8
No. R-1 U.S. $88,000,000
Apache Corporation, a corporation duly incorporated and
existing under the laws of the State of Delaware (the "Company"), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of Eighty-eight Million United States Dollars on January 15, 2002
and to pay interest thereon, from January 4, 1995 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually in arrears on January 15 and July 15, in each year (each an
"Interest Payment Date"), commencing July 15, 1995, at the rate of 6% per
annum until the principal hereof is paid or made available for payment. Inter-
est hereon shall be calculated on the basis of a 360 day year comprised of
twelve 30 day months. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Fiscal
Agency Agreement, be paid to the person in whose name this Security is
registered at the close of business on the Record Date for such interest, which
shall be January 1 or July 1 (whether or not a business day) next preceding
such Interest Payment Date. Except as otherwise provided in the Fiscal Agency
Agreement, any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the holder on such Record Date and may be paid
at any time in any lawful manner, all as more fully provided in the Fiscal
Agency Agreement. Payment of interest on this Security shall be made by United
States dollar check drawn on a bank in The City of New York and mailed to the
person entitled thereto at his address as it shall appear in the Security
Register, or (if arrangements satisfactory to the Company and the Fiscal Agent
are made) by wire transfer to a United States dollar-denominated account
maintained by the payee with a bank in the City of New York; provided, however,
that, if such mailing is not possible and no such application shall have been
made, payment of interest shall be made at the corporate trust office of the
Fiscal Agent, or such other office or agency of the Company as may be
designated for such purpose in The City of New York, in United States currency.
<PAGE> 45
A-3
Reference is hereby made to the further provisions of this
Security set forth under Terms and Conditions of the Securities on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place. This Security is further subject in all
respects to the terms of the Fiscal Agency Agreement, as more fully set forth
on the reverse hereof.
This Security shall not become valid or enforceable for any
purpose unless and until the certificate of authentication hereon shall have
been manually signed by a duly authorized signatory of the Fiscal Agent.
IN WITNESS WHEREOF, the Company has caused this Security to
be duly executed in its corporate name by the manual or facsimile signature of
a duly authorized signatory.
Dated: January 4, 1995
APACHE CORPORATION
By: __________________________________
Name:
Title:
<PAGE> 46
A-4
(FORM OF FACE OF BEARER SECURITY)
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO U.S. PERSONS EXCEPT TO QUALIFIED
INSTITUTIONAL BUYERS (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
ACCORDANCE WITH RULE 144A OR OTHERWISE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
APACHE CORPORATION
(Incorporated in the State of Delaware)
6% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2002
No. B-__________ U.S. $_______________
Apache Corporation, a corporation duly incorporated and
existing under the laws of the State of Delaware (the "Company"), for value
received, hereby promises to pay to bearer upon presentation and surrender of
this Security the principal sum of ________________ Thousand United States
Dollars on January 15, 2002 and to pay interest thereon, from January 4, 1995,
semiannually in arrears on January 15 and July 15 in each year (each an
"Interest Payment Date"), commencing July 15, 1995, at the rate of 6% per
annum, until the principal hereof is paid or made available for payment.
Interest hereon shall be calculated on the basis of a 360 day year comprised of
twelve 30 day months. Such payments shall be made in such coin or currency of
the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, subject to any laws or regulations
applicable thereto and to the right of the Company (limited as provided in the
Fiscal Agency Agreement) to terminate the appointment of any paying agency, at
the main offices of Chemical Bank, 450 West 33rd Street, 15th Floor, New York,
New York 10001, or
<PAGE> 47
A-5
Banque Internationale a Luxembourg S.A., 69, route d'Esch, L-1470 Luxembourg,
or at such other offices or agencies outside the United States of America, its
territories or possessions as the Company may designate, by United States
dollar check drawn on a bank in the City of New York, or (if arrangements
satisfactory to the Company and the Fiscal Agent are made) by wire transfer
to a United States dollar account maintained by the holder at a bank outside
the United States, its territories and its possessions. Interest on this
Security shall be paid only at an office or agency located outside the United
States, its territories or possessions and, in the case of interest due on or
before maturity, only upon presentation and surrender at such an office or
agency of the interest coupons hereto attached as they severally mature. No
payment on this Security or any coupon will be made at the Corporate Trust
Office of the Fiscal Agent or any other paying agency maintained by the Com-
pany in the United States, nor will any payment be made by transfer to an
account in, or by mail to an address in, the United States, except as may be
permitted by United States tax laws and regulations in effect at the time of
such payment, without detriment to the Company. Notwithstanding the fore-
going, payment of this Security and coupons may be made at the office of the
Fiscal Agent in The City of New York if full payment at all paying agencies
outside the United States is illegal or effectively precluded by exchange
controls or other similar restrictions.
Reference is hereby made to the further provisions of this
Security set forth under Terms and Conditions of the Securities on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place. This Security is further subject in all
respects to the terms of the Fiscal Agency Agreement, as more fully set forth
on the reverse hereof.
Neither this Security nor any of the coupons attached hereto
shall become valid or enforceable for any purpose unless and until the
certificate of authentication hereon shall have been manually signed by a duly
authenticated signatory of the Fiscal Agent.
<PAGE> 48
A-6
IN WITNESS WHEREOF, the Company has caused this Security to
be duly executed in its corporate name by the manual or facsimile signature of
a duly authorized officer and coupons bearing the facsimile signature of a duly
authorized signatory to be annexed hereto.
Dated: January 4, 1995
APACHE CORPORATION
By: ______________________________
Name:
Title:
<PAGE> 49
(FORM OF FACE OF COUPON ON BEARER SECURITIES)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
APACHE CORPORATION
6% CONVERTIBLE SUBORDINATED DEBENTURE
DUE JANUARY 15, 2002
U.S. $ _________*
Unless the Security to which this coupon appertains shall have
been called for redemption prior to the due date hereof and payment thereof
duly provided for or converted or exchanged, on the date set forth hereon,
Apache Corporation (herein called the "Company") will pay to bearer, upon
surrender hereof, the amount shown hereon (together with any Additional
Amount in respect thereof which the Company may be required to pay according to
the terms of said Security) at the paying agencies set out on the reverse
hereof or at such other places outside the United States of America, its
territories and possessions as the Company may determine from time to time, by
United States dollar check drawn on a bank in The City of New York, or (if
arrangements satisfactory to the Company and the Fiscal Agent referred to in
the Security to which this coupon appertains are made) wire transfer to a
United States dollar account maintained by the payee at a bank outside the
United States of America, its territories and possessions, being one-half
year's interest then payable on said Security.
APACHE CORPORATION
By: _________________________________
Name: _______________________________
Title: ______________________________
_________________________
* The amount due shown on the coupon for the first Interest
Payment Date will be interest for the period January 4,
1995 to July 15, 1995.
<PAGE> 50
A-2
[Reverse of Coupon]
Chemical Bank Banque Internationale
450 West 33rd Street, a Luxembourg S.A.
15th Floor 69, route d'Esch
New York, New York 10001 L-1470 Luxembourg
<PAGE> 51
A-3
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within mentioned
Fiscal Agency Agreement.
CHEMICAL BANK, as Fiscal Agent
By: _________________________
Authorized Signatory
<PAGE> 52
[Form of Reverse]
Terms and Conditions of the Securities
1. General.
(a) This Security is one of a duly authorized issue of
Securities of the Company designated as its 6% Convertible Subordinated
Debentures due 2002 (herein called the "Securities"), limited in aggregate
principal amount to U.S. $172,500,000. The Company, for the benefit of the
holders from time to time of the Securities, has entered into a Fiscal Agency
Agreement dated as of January 4, 1995 (the "Fiscal Agency Agreement"), between
the Company and Chemical Bank, as Fiscal Agent, Paying Agent, Security
Registrar and Conversion Agent (the "Fiscal Agent"), to which Fiscal Agency
Agreement reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Fiscal Agent, and the holders of Securities and any coupons appertaining
thereto and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The holders of the Securities will be entitled to
the benefits of, be bound by, and be deemed to have notice of, all of the
provisions of the Fiscal Agency Agreement. A copy of the Fiscal Agency
Agreement is on file and may be inspected at the offices of paying agencies
appointed by the Company.
(b) The Securities are issuable as bearer Securities (the
"Bearer Securities"), with interest coupons attached, in the denominations of
U.S. $1,000 and U.S. $10,000, and as registered Securities (the "Registered
Securities"), without coupons, in denominations of U.S. $1,000 and integral
multiples thereof. The Registered Securities, and transfers thereof, shall be
registered as provided in Section 8 hereof and in the Fiscal Agency Agreement.
The holder of any Bearer Security or any coupon and the registered holder of a
Registered Security shall (to the fullest extent permitted by applicable law)
be treated at all times, by all persons and for all purposes as the absolute
owner of such Security or coupon, as the case may be, regardless of any notice
of ownership, theft or loss or of any writing thereon.
(c) The Securities are direct and unsecured obligations
of the Company, subordinated as set forth in Section 7 hereof. There are no
restrictions herein or in the Fiscal Agency Agreement on other indebtedness or
securities which may be incurred or issued by the Company or its subsidiaries,
or on the ability of the Company to pledge, collaterally assign,
<PAGE> 53
A-2
grant a security interest in, or otherwise hypothecate any of its properties or
properties of any of its subsidiaries.
2. Additional Amounts.
The Company will pay, as additional interest ("Additional
Amounts"), to the holder of this Security or of any coupon appertaining
hereto who is a United States Alien (as defined below) such amounts as may be
necessary in order that every net payment of the principal of (and premium, if
any) and interest on this Security, after withholding for or on account of any
present or future tax, assessment or other governmental charge imposed upon or
as a result of such payment by the United States or any political subdivision
or taxing authority thereof or therein, will not be less than the interest
provided herein or any coupon appertaining hereto to be then due and payable;
provided, however, that the foregoing obligation to pay Additional Amounts
shall not apply to:
(a) any tax, assessment or other governmental charge
which would not have been so imposed but for (i) the existence of any
present or former connection between such holder (or between a
fiduciary, settlor or beneficiary of, or a person holding a power
over, such holder, if such holder is an estate or trust, or a member of
such holder, if such holder is a partnership) and the United States,
including, without limitation, such holder (or such fiduciary,
settlor, beneficiary, person holding a power or member) being or having
been a citizen or resident or treated as a resident thereof or being or
having been engaged in a trade or business therein or being or having
been present therein or having or having had a permanent establishment
therein, (ii) such holder's present or former status as a personal
holding company, foreign personal holding company, passive foreign
investment company, foreign private foundation or other foreign
tax-exempt entity or controlled foreign corporation for United States
tax purposes or a corporation which accumulates earnings to avoid
United States Federal income tax, or (iii) such holder's status as a
bank extending credit pursuant to a loan agreement entered into in the
ordinary course of business;
(b) any tax, assessment or other governmental charge
which would not have been so imposed but for the presentation by
the holder of this Security or any coupon appertaining hereto for
payment on a date more than 10 days
<PAGE> 54
A-3
after the date on which such payment became due and payable or on the
date on which payment thereof is duly provided, whichever occurs
later;
(c) any estate, inheritance, gift, sales, transfer
or personal property tax or any similar tax, assessment or
other governmental charge;
(d) any tax, assessment or other governmental
charge which would not have been imposed but for the failure to comply
with certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or present
or former connection with the United States of the holder or beneficial
owner of such Security or any related coupon if such compliance is
required by statute, regulation or ruling of the United States or any
political subdivision or taxing authority thereof or therein as a
precondition to relief or exemption from such tax, assessment or
other governmental charge;
(e) any tax, assessment or other governmental
charge which is payable otherwise than by withholding from payments
of principal of and premium, if any, or interest on this Security;
(f) any tax, assessment or other governmental
charge imposed on interest received by a person holding, actually
or constructively, 10 percent or more of the total combined voting
power of all classes of stock of the Company entitled to vote; or
(g) any tax, assessment or other governmental
charge required to be withheld by any paying agent from any payment
of principal of and premium, if any, or interest on any Security or
interest on any coupon appertaining thereto if such payment can be made
without such withholding by any other paying agent;
nor shall Additional Amounts be paid with respect to any payment of the
principal of and premium, if any, or interest on this Security to a person
other than the sole beneficial owner of such payment to the extent such
beneficial owner would not have been entitled to the Additional Amounts had
such beneficial owner been the holder of this Security or any coupon
appertaining hereto.
<PAGE> 55
A-4
The term "United States Alien" means any person who, for United
States Federal income tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a foreign estate or trust,
or a foreign partnership to the extent one or more of the members of which is,
for United States Federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a foreign
estate or trust, and the term "United States" means the United States of
America, its territories and possessions.
Except as specifically provided herein and in the Fiscal Agency
Agreement, the Company shall not be required to make any payment with respect
to any tax, assessment or other governmental charge imposed by any government
or any political subdivision or taxing authority thereof or therein.
3. Redemption.
(a) The Company, at its option, may redeem the Secu-
rities, in whole or in part (but if in part, in a aggregate principal amounts
of no less than $10,000), at any time or times on or after January 15, 1998 at
the redemption prices (expressed in percentages of principal amount) set forth
below plus accrued and unpaid interest to the date fixed for redemption, if
redeemed during the 12-month period beginning on January 15 of the years
indicated below:
<TABLE>
<CAPTION>
Year Percentage
---- ----------
<S> <C>
1998..................................................... 103.0%
1999..................................................... 102.0%
2000..................................................... 101.0%
2001 and thereafter...................................... 100.0%
</TABLE>
If fewer than all of the then outstanding Securities are to be redeemed, the
Securities to be redeemed will be selected by the Fiscal Agent not more than 75
days prior to the date fixed for redemption, by such method as the Fiscal Agent
shall deem fair and appropriate. Provisions of this Security that apply to
Securities called for redemption also apply to portions of Securities called
for redemption. The Fiscal Agent shall notify the Company promptly of the
Securities or portions of Securities to be called for redemption.
(b) If, at any time, the Company shall determine
that as a result of any change in or amendment to the laws (or
<PAGE> 56
A-5
any regulations or rulings promulgated thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting
taxation, or any amendment to or change in an official application or
interpretation of such laws, regulations or rulings which change or amendment
becomes effective on or after January 4, 1995, the Company has or will become
obligated to pay to the holder of any Security or coupon Additional Amounts and
such obligation cannot be avoided by the Company taking reasonable measures
available to it, then the Company may, at its election exercised at any time
when such conditions continue to exist, redeem the Securities as a whole at a
redemption price equal to 100% of the principal amount, together with accrued
and unpaid interest, if any, to the date fixed for redemption; provided,
however, that no such notice or redemption shall be given earlier than 90 days
prior to the earliest date on which the Company would be obliged to pay such
Additional Amounts were a payment in respect of this Security then due;
provided, further, that at the time such notice is given, such obligation to
pay such Additional Amounts remains in effect.
Prior to any redemption of the Securities pursuant to the
preceding paragraph, the Company shall provide the Fiscal Agent with one or
more certificates (signed by the President or any Vice President and the
Treasurer or the Secretary) of the Company to the effect that the Company is
entitled to redeem the Securities pursuant to such paragraph and that the
conditions precedent to the right of the Company to redeem the Securities
pursuant to such paragraph have occurred and a written opinion of counsel (who
may be an employee of the Company) stating that all legal conditions precedent
to the right of the Company to redeem the Securities pursuant to such paragraph
have occurred.
(c) The Company shall, except as set forth in the
succeeding paragraph, redeem the Securities as a whole but not in part, at 100%
of their principal amount, together with accrued and unpaid interest to the
date fixed for redemption, after determining, based on a written opinion of the
Company's counsel, that any certification, identification or information
reporting requirement of United States law or regulation with regard to the
nationality, residence or identity of a beneficial owner of a Bearer Security
or a coupon appertaining thereto who is a United States Alien (as defined in
Section 2 hereof) would be applicable to a payment of principal of, premium,
if any, or interest on a Bearer Security or a coupon appertaining thereto made
outside the United States by the
<PAGE> 57
A-6
Company or a paying agent (other than a requirement (a) which would not be
applicable to a payment made (i) directly to the beneficial owner or (ii) to a
custodian, nominee or other agent of the beneficial owner, or (b) which could
be satisfied by the holder, custodian, nominee or other agent certifying that
the beneficial owner is a United States Alien; provided, however, that in each
case referred to in Section 3(a)(ii) and (b) payment by such custodian, nominee
or agent to the beneficial owner is not otherwise subject to any requirement
referred to in this sentence). The Company shall make such determination and
will notify the Fiscal Agent thereof as soon as practicable, stating in the
notice the effective date of such certification, identification, or information
reporting requirement and the dates within which the redemption shall occur,
and the Fiscal Agent shall give prompt notice thereof in accordance with the
Fiscal Agency Agreement. The Company shall determine the redemption date by
notice to the Fiscal Agent at least 60 days before the redemption date, unless
shorter notice is acceptable to the Fiscal Agent. Such redemption of the
Securities must take place on such date, not later than one year after the
publication of the initial notice of the Company's determination of the
existence of such certification, identification or information reporting
requirement. The Company shall not so redeem the securities, however, if the
Company shall, based on a subsequent event, determine, based on a written
opinion of counsel, not less than 30 days prior to the date fixed for
redemption, that no payment would be subject to any requirement described
above, in which case the Company shall notify the Fiscal Agent, which shall
give prompt notice of that determination in accordance with the Fiscal Agency
Agreement and any earlier redemption notice shall thereupon be revoked and of
no further effect.
Notwithstanding the next preceding paragraph, if and so long as
the certification, identification or information reporting requirement referred
to in the next preceding paragraph would be fully satisfied by payment of
United States withholding, backup withholding or similar taxes, the Company may
elect, prior to the giving of the notice of redemption, to have the provisions
of this paragraph apply in lieu of the provisions of the next preceding
paragraph. In that event, the Company will pay such Additional Amounts
(without regard to Section 2 hereof) as are necessary in order that, following
the effective date of such requirements, every net payment made outside the
United States by the Company or a paying agent of the principal of, premium, if
any, and interest on a Bearer Security or a coupon appertaining thereto to a
holder who is a
<PAGE> 58
A-7
United States Alien (without regard to a certification, identification or
information reporting requirement as to the nationality, residence or
identity of such holder), after deduction for United States withholding, backup
withholding or similar taxes (other than withholding, backup withholding or
similar taxes (i) which would not be applicable in the circumstances referred
to in the parenthetical clauses of the first sentence of the next preceding
paragraph or (ii) are imposed as a result of presentation of such Bearer
Security or coupon for payment more than 10 days after the date on which such
payment becomes due and payable or on which payment thereof is duly provided
for, whichever is later), will not be less than the amount provided in the
Bearer Security or the coupon to be then due and payable. If the Company
elects to pay such Additional Amounts and as long as it is obligated to pay
such Additional Amounts, the Company may subsequently redeem the Securities, at
any time, in whole but not in part, upon not more than 60 days nor less than 30
days notice, at 100% of their principal amount, plus accrued interest to the
date fixed for redemption and Additional Amounts, if any.
(d) Each Security is subject to redemption in whole or in
part (which shall be in a principal amount hereof which is U.S. $1,000 or an
integral multiple thereof) at the option of the holder thereof on any Holder
Redemption Date (as defined below) at a redemption price equal to 100% of the
principal amount thereof, together with accrued and unpaid interest, if a
Change in Control shall occur or have occurred. For purposes hereof, a "Change
in Control" shall be deemed to have occurred at such time as any of the
following events shall occur:
(i) Any person (for purposes of this
Section 3(d)(i) only, the term "person" shall mean a "person" as
defined in or for purposes of Section 13(d)(3) or Section 14(d)(2) of
the Exchange Act of 1934 (as defined herein), or any successor
provision to either of the foregoing, including any "group" acting
for the purpose of acquiring, holding or disposing of securities within
the meaning of Rule 13d-5(b)(1) under the Exchange Act of 1934),
together with its Affiliates and Associates (as defined herein) shall
file or become obligated to file a report under or in response to
Schedule 13D or 14D-1 (or any successor schedule, form or report)
pursuant to the Exchange Act of 1934 disclosing that such person has
become the beneficial owner (as the term "beneficial owner" is defined
in Rule 13(d)(3) under the Exchange Act of 1934, or any successor
provision) of either (A) 50% or
<PAGE> 59
A-8
more of the shares of Common Stock then outstanding or (B) 50% or more
of the voting power of the Voting Stock (as defined herein) of the
Company then outstanding; provided, however, that for purposes of
this Section 3(d)(i), a person shall not be deemed the beneficial
owner of (1) any securities tendered pursuant to a tender offer or
exchange offer made by or on behalf of such person, or its Affiliates
or Associates, until such tendered securities are accepted for purchase
or exchange thereunder, or (2) any securities in respect of which
beneficial ownership by such person arises solely as a result of a
revocable proxy delivered in response to a proxy or consent
solicitation that is made pursuant to, and in accordance with, the
Exchange Act of 1934 and the applicable rules and regulations
thereunder and is not then reportable on Schedule 13D (or any successor
schedule, form or report) under the Exchange Act of 1934.
(ii) There shall be consummated any sale,
transfer, lease or conveyance of all or substantially all of the
properties and assets of the Company to any other corporation or
corporations or other person or persons (other than a Subsidiary of the
Company).
(iii) There shall be consummated any
consolidation of the Company with or merger of the Company with or
into any other corporation or corporations or entity or entities
(whether or not affiliated with the Company) in which the Company is
not the sole surviving or continuing corporation or pursuant to which
the shares of Common Stock outstanding immediately prior to the
consummation of such consolidation or merger are converted into cash,
securities or other property, other than a consolidation or merger in
which the holders of shares of Common Stock receive, directly or
indirectly, (A) 75% or more of the common stock of the sole surviving
or continuing corporation outstanding immediately following the
consummation of such consolidation or merger and (B) securities
representing 75% or more of the combined voting power of the Voting
Stock of the sole surviving or continuing corporation outstanding
immediately following the consummation thereof of such consolidation or
merger.
"Exchange Act of 1934" shall mean the United States Securities
Exchange Act of 1934, as amended.
<PAGE> 60
A-9
"Voting Stock" shall mean with respect to any person, the
capital stock of such person having general voting power under ordinary
circumstances to elect at least a majority of the board of directors, managers
or trustees of such person (irrespective of whether or not at the time capital
stock of any other class or classes shall have or might have voting power by
reason of the happening of any contingency).
"Associate" shall have the meaning ascribed to such term in
Rule 12b-2 under the Exchange Act of 1934, as in effect on the date hereof.
The "Holder Redemption Date" with respect to any Change in
Control described in this Section 3(d) shall be the ninetieth day after the
later of the Exchange Date or the thirty-fifth business day after the
occurrence of the Change in Control.
A holder of a Security who has tendered a redemption notice (i)
will be entitled to revoke its election by delivering a written notice of
such revocation together with the holder's non-transferable receipt for such
Security to the office or agency of the Company designated as the place for the
payment of the Securities to be so redeemed on or before the Holder
Redemption Date and (ii) will retain the right to convert its securities into
shares of Common Stock of the Company on or before the Holder Redemption Date.
(e) Notice of redemption will be given by publication in
Authorized Newspapers (as defined in the Fiscal Agency Agreement) in The City
of New York and in London, and, so long as the Securities are listed on the
Luxembourg Stock Exchange, in Luxembourg, and by mail to holders of Registered
Securities, in each case in the English language, all as provided in the Fiscal
Agency Agreement. In the case of a redemption in whole at the option of the
Company, notice will be given once not more than 60 nor less than 30 days prior
to the date fixed for redemption. In the case of a partial redemption at the
option of the Company, notice will be given twice, the first such notice to be
given not more than 60 or less than 45 days prior to the date fixed for
redemption and the second such notice to be given not more than 45 or less than
30 days prior to the date fixed for redemption. In the case of the occurrence
of a Change in Control, notice will be given once by the Fiscal Agent setting
forth the information described below not later than 10 days after the later of
the Exchange Date or the occurrence of a Change in Control. Neither the
failure to give
<PAGE> 61
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notice nor any defect in any notice given to any particular holder of a
Security shall affect the sufficiency of any notice with respect to other
Securities.
Notices relating to the redemption of Securities whether at the
option of the Company or the holder thereof shall specify: the date fixed for
redemption or the Holder Redemption Date, as the case may be; the redemption
price; the place or places of payment; that payment will be made upon
presentation and surrender of the Securities to be redeemed, together, in the
case of a Bearer Security, with all appurtenant coupons, if any, maturing
subsequent to the date fixed for redemption; that interest accrued to the date
fixed for redemp- tion (unless the redemption date is an interest payment date)
will be paid as specified in said notice; and that on and after said date
interest thereon will cease to accrue. In the case of a redemption by the
Company at the option of the holder of a Security, the notices given by the
Fiscal Agent informing a holder of such holder's entitlement to redeem shall
also specify that a holder electing redemption will be entitled to revoke its
election by delivering a written notice of such revocation, together with the
holder's non-transferable receipt for such Security, to the agency designated
by the Company as the place for the payment of the Securities to be so redeemed
not later than the Holder Redemption Date in the case of a redemption pursuant
to Section 3(d) hereof. In the case of a redemption in part at the option of
the Company, notices shall specify the aggregate principal amount of Securities
to be redeemed and the aggregate principal amount of Securities outstanding
after such partial redemption. The first notice shall specify the last date on
which exchanges or transfers of Securities may be made, and the second notice
shall specify the serial numbers of the Securities and the portions thereof
called for redemption. In the case of a redemption in whole or in part by the
Company, notices shall specify the date the conversion privilege expires in
accordance with Section 4(a) hereof. Such notices shall also state that the
conditions precedent, if any, to such redemption have occurred and the last day
for surrender of the Securities being redeemed.
(f) If (i) notice or redemption has been given in the
manner set forth in Section 3(e) hereof with respect to Securities to be
redeemed at the option of the Company, or (ii) notice of redemption has been
given by the holder of a Security to be redeemed pursuant to Section 3(d)
hereof, the Securities so to be redeemed shall become due and payable on the
applicable redemption date specified in such notice and
<PAGE> 62
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upon presentation and surrender of the Securities at the place or places
specified in the notice given by the Company with respect to such redemption,
together in the case of Bearer Securities with all appurtenant coupons, if any,
maturing subsequent to the redemption date, the Securities shall be paid and
redeemed by the Company, at the places and in the manner and currency herein
specified and at the redemption price together with accrued interest, if any,
to the redemption date; provided, however, that interest due in respect of
coupons maturing on or prior to the redemption date shall be payable only upon
the presentation and surrender of such coupons (at an office or agency located
outside of the United States of America). If any Bearer Security surrendered
for redemption shall not be accompanied by all appurtenant coupons maturing
after the redemption date, such Security may be paid after deducting from the
amount otherwise payable an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by
the Company and the Fiscal Agent if they are furnished with such security or
indemnity as they may require to save each of them and each other paying
agency of the Company harmless. From and after the redemption date, if monies
for the redemption of Securities shall have been available at the principal
corporate trust office of the Fiscal Agent for redemption on the redemption
date, the Securities shall cease to bear interest, the coupons for interest
appertaining to Bearer Securities maturing subsequent to the redemption date
shall be void, and the only right of the holders of such Securities shall be to
receive payment of the redemption price together with accrued interest to the
redemption date if the redemption date is an interest payment date. If monies
for the redemption of the Securities are not made available for payment until
after the redemption date, the Securities shall not cease to bear interest
until such monies have been so made available.
4. Conversion.
(a) Subject to and upon compliance with the provisions of
the Fiscal Agency Agreement, a holder of Securities other than Restricted
Securities is entitled, at his option, at any time on or after the Exchange
Date (as defined in the Fiscal Agency Agreement), and a holder of Restricted
Securities is entitled at his option, at any time on or after the Registra-
tion Date (as defined in the Fiscal Agency Agreement), and, in each case, on or
before the close of business on January 15, 2002, or in case a Security or a
portion thereof is called for redemption by the Company, or the holder thereof
elects to have
<PAGE> 63
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such Security or a portion thereof redeemed by the Company pursuant to
Section 3(d) hereof, then in respect of such Security or such portion thereof
until and including, but (unless the Company defaults in making the payment due
upon redemption) not after, the close of business on the business day
immediately preceding date fixed for redemption, to convert such Security (or
any portion of the principal amount thereof which is U.S. $1,000 or an integral
multiple thereof), at the principal amount thereof, or of such portion, into
fully paid and nonassessable shares (calculated as to each conversion to the
nearest 1/1000 of a share) of Common Stock of the Company ("Common Stock") at
a Conversion Price equal to U.S. $30.68 aggregate principal amount of
Securities for each share of Common Stock (the "Conversion Price") (or at the
current adjusted Conversion Price if an adjustment has been made as provided
herein) by surrender of the Security, or in the case of a Security submitted
for redemption pursuant to Section 3(d) hereof, satisfactory evidence of such
submission, together with (i) if a Bearer Security, all unmatured coupons
(other than the coupon that matures on January 15, 1998 if such Bearer Security
is called for redemption on January 15, 1998, the interest on which coupon
shall be paid in accordance with the terms of the coupon) and any matured
coupons in default appertaining thereto, and if a Registered Security (if so
required by the Company or the Fiscal Agent), instruments of transfer in form
satisfactory to the Company and the Fiscal Agent, duly executed by the regis-
tered holder or by his duly authorized attorney and (ii) the conversion notice
hereon duly executed (a) at the Corporate Trust Office of the Fiscal Agent, or
at such other office or agency of the Company as may be designated by it for
such purpose in the City of New York, or (b) subject to any laws or
regulations applicable thereto and subject to the right of the Company to
terminate the appointment of any such conversion agency, at the offices of
Chemical Bank, 450 West 33rd Street, 15th Floor, New York, New York 10001, and
Banque Internationale a Luxembourg S.A., 69, route d'Esch, L-1470 Luxembourg,
or at such other offices or agencies as the Company may designate.
(b) In the case of any Registered Security which is
converted after any Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Registered Security whose maturity is prior to
such Interest Pyament Date), interest that is payable on such Interest Payment
Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest shall be paid to the person in whose name that
Registered Security is registered at the close of business on such Record Date.
Except as otherwise
<PAGE> 64
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provided in the immediately preceding sentence, 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. Registered Securities surrendered for
conversion during the period after the close of business on any Record Date
next preceding any Interest Payment Date to the close of business on such
Interest Payment Date shall be accompanied by payment of any amount equal to
interest payable on such Interest Payment Date on the principal amount being
surrendered for conversion, unless such Registered Securities have been called
for redemption on January 15, 1998, in which case such Registered Securities
shall not be accompanied by such payment. No fractions of shares or scrip
representing fractions of shares will be issued or delivered on conversion, but
instead of any fractional interest the Company shall pay a cash adjustment as
provided in the Fiscal Agency Agreement.
(c) (i) In case at any time the Company shall pay or make
a stock dividend or other distribution in Common Stock on any class of capital
stock of the Company, 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 so
that the same shall equal the price determined 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 adjustment to become effective immediately after the opening
of business on the day following the date fixed for such determination.
(ii) In case at any time the Company shall (A) subdivide its
outstanding Common Stock, (B) combine its outstanding Common Stock into a
smaller number of shares, or (C) issue by reclassification of its Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation) any shares, the
Conversion Price in effect at the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the
holder of any Security surrendered for conversion after such time shall be
entitled to receive the aggregate number and kind of shares which, if such
Security had been converted immediately prior to such time, he would have owned
upon such conversion and been entitled to
<PAGE> 65
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receive upon such subdivision, combination or reclassification. Such adjustment
shall be made successively whenever any event listed above shall occur.
(iii) In case at any time the Company shall fix a record date
for the issuance of rights or warrants to all holders of its Common Stock
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 Section 4(c)(v)) of the Common Stock on such record date, the Conversion
Price in effect at the opening of business on the day following such record
date, shall be reduced so that the same shall equal the price determined 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
such record date 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 such record date plus the number of
shares of Common Stock so offered for subscription or purchase, such
reduction to become effective immediately after the opening of business on
the day following such record date. Such reduction shall be made successively
whenever such a record date is fixed; and in the event that such rights or
warrants are not so issued, the Conversion Price shall again be adjusted to be
the Conversion Price which would then be in effect if such record date had not
been fixed.
(iv) In case at any time the Company shall fix a record date
for the making of a distribution, by dividend or otherwise, to all holders of
its Common Stock, of evidences of its indebtedness or assets (including
securities, but excluding (x) any dividend or distribution referred to in
Section 4(c)(i), any rights or warrants referred to in Section 4(c)(iii), and
(y) any dividend or distribution paid in cash out of the retained earnings of
the Company or any regular quarterly dividend consistent with past practice),
then in each such case the Conversion Price in effect after such record date
shall be determined by multiplying the Conversion Price in effect immediately
prior to such record date by a fraction, of which the numerator shall be the
total number of outstanding shares of Common Stock multiplied by the current
market price per share of Common Stock (as defined in Section 4(c)(v)) on such
record date, less the fair market value (as determined by the Board of
Directors of the Company, whose determination
<PAGE> 66
A-15
shall be conclusive and described in a statement filed with the Fiscal Agent)
of the portion of the assets or evidences of indebtedness so to be distributed,
and of which the denominator shall be the total number of outstanding shares of
Common Stock multiplied by such current market price per share of Common Stock.
Such adjustment shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such record date has not been fixed.
(v) For the purpose of any computation under Section
4(c)(iii) and (iv), the current market price per share of Common Stock on any
date shall be deemed to be the average of the Closing Prices for the 15
consecutive days upon which the principal trading market for the Common Stock
is open selected by the Company commencing not less than 20 nor more than 30
days before the day in question. The Closing Price for any day shall be the
last reported sales prices 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, the closing sale price quoted on the NASDAQ National Market System,
or if not so quoted, as determined by the Company.
(vi) The Company may make such downward adjustments in the
Conversion Price, in addition to those required by Section 4(c)(i), (ii) and
(iii), as it considers to be advisable in order that any event treated for
United States Federal income tax purposes as a dividend of stock or stock
rights shall not be taxable to the recipients.
(vii) No adjustment in the Conversion Price shall be required
unless such adjustment would require change of at least twenty-five cents
($0.25) in such Conversion Price; provided, however, that any adjustment
which by reason of this Section 4(c)(vii) is not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Section 4(c) shall be made to the nearest cent or to
the nearest 1/1000 of a share, as the case may be.
<PAGE> 67
A-16
(d) Whenever the Conversion Price is adjusted and in the
event of certain other corporate actions, as herein provided, the Company
shall give notice, all as provided in the Fiscal Agency Agreement.
(e) The Company shall in good faith use its best efforts
(i) to cause all registrations with, and to obtain any approvals by, any
governmental authority under any Federal or state law of the United States that
may be required before the shares of Common Stock issuable upon conversion of
the Restricted Securities may be lawfully issued or transferred and delivered
and (ii) to list the shares of Common Stock required to be issued or delivered
upon conversion of the Restricted Securities prior to such issue or delivery on
each national securities exchange or trade market on which the outstanding
Common Stock is listed or qualified for trading at the time of such issue or
delivery.
(f) The Company shall, at all times from and after the date
of which the Securities are convertible into Common Stock, have reserved and
available, free from preemptive 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 Securities. The Company covenants that all shares of Common Stock which
may be issued or delivered upon conversion of Securities will upon issuance
be fully paid and nonassessable.
(g) In case of any consolidation with, or merger of the
Company into, any other corporation, or in case of any merger of another
corporation 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 in case of any sale or transfer of all or
substantially all of the assets of the Company, the corporation 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 Fiscal Agent an amendment
to the Fiscal Agency Agreement providing that the holder of each Security
shall have the right during the period such Security shall be convertible as
specified in Section 4(a) hereof 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
<PAGE> 68
A-17
or transfer assuming, if such consolidation, merger, sale or transfer is prior
to the period such Security shall be convertible as specified in Section 4(a)
hereof, that the Securities were convertible at such time at the initial
Conversion Price as adjusted to such time pursuant to Section 4(c)(i), (ii),
(iii), (iv) and (vi). Such amendment shall provide for adjustments which,
for events subsequent to the effective date of such amendment, shall be as
nearly equivalent as may be practicable to the adjustments provided for
herein. The above provisions of this Section 4(c) shall similarly apply to
successive consolidations, mergers, sales or transfers.
5. Events of Default.
In the event that any of the following ("Events of Default")
shall occur and be continuing:
(a) the Company shall fail to pay when due the principal
amount of any of the Securities whether at maturity or upon redemption or
otherwise; or
(b) the Company shall fail to pay any installment of
interest or Additional Amounts (as described in Section 2 hereof) on any of the
Securities for a period of 30 days after the date when due; or
(c) the Company shall fail duly to perform or observe any
other term, covenant or agreement contained in any of the Securities or in the
Fiscal Agency Agreement for a period of 60 days after the date on which written
notice of such failure, requiring the Company to remedy the same and stating
that such notice is a "Notice of Default" hereunder, shall first have been
given to the Company and the Fiscal Agent by the holders of at least 25% in
aggregate principal amount of the Securities at the time outstanding; provided,
however, that, in the event the Company shall within the aforesaid period of 60
days commence legal action in a court of competent jurisdiction seeking a
determination that the Company had not failed to duly perform or observe the
term or terms, covenant or covenants or agreement or agreements specified in
the aforesaid notice, such failure shall not be an Event of Default unless
the same continues for a period of 10 days after the date of any final
determination to the effect that the Company had failed to duly perform or
observe one or more of such terms, covenants or agreements; or
<PAGE> 69
A-18
(d) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official)
of the Company or for any substantial part of the property of it or ordering
the winding-up or liquidation of the affairs of its and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or
(e) the Company shall commence a voluntary case or
proceeding under any applicable bankruptcy, insolvency, reorganization or
other similar law now or hereafter in effect, or shall consent to the entry of
an order for relief in an involuntary case under any such law, or shall
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or similar official) of the
Company or for any substantial part of its property, or shall make any
general assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts as they become due; or
(f) an event of default, as defined in any indenture or
instrument evidencing or under which the Company shall have outstanding at
least $25,000,000 (or its equivalent in another currency), in aggregate
principal amount of indebtedness for borrowed money, shall happen and be
continuing and such default shall involve the failure to pay the principal of
such indebtedness (or any part thereof), when due and payable after the
expiration of any applicable grace period with respect thereto, or such
indebtedness shall have been accelerated so that the same shall be or become
due and payable prior to the date on which the same would otherwise have become
due and payable, and such failure to pay shall not have been cured by the
Company within 30 days after such failure, or such acceleration shall not have
been rescinded or annulled within 30 days after notice thereof shall have first
been given to the Company; provided, however, that, if such event of default
under such indenture or instrument shall be remedied or cured by the Company or
waived by the holders of such indebtedness, then the Event of Default hereunder
by reason thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of any of the holders of
Securities;
then the holder of this Security may, at such holder's
option, declare the principal of this Security and the
<PAGE> 70
A-19
interest accrued hereon (and Additional Amounts under Section 2 hereof, if any,
thereon) to be due and payable immediately by written notice to the Company and
the Fiscal Agent, and if any such Event of Default shall continue at the time
of receipt of such written notice, the principal of this Security and the
interest accrued hereon (and Additional Amounts, if any, hereon) shall become
immediately due and payable, subject to the right of holders of the requisite
principal amount of Securities to waive certain defaults pursuant to Section
9(b) hereof and further subject to the provisos of Section 5(c) and Section
5(f). Upon payment of such amount of principal and interest (and Additional
Amounts pursuant to Section 2 hereof, if any), all of the Company's obligations
in respect of payment of principal of and interest on (and Additional Amounts,
if any, on) this Security shall terminate. Interest on overdue principal and
interest (and Additional Amounts, if any) shall accrue from the date on which
such principal and interest (and Additional Amounts, if any) were due and
payable to the date such principal and interest (and Additional Amounts, if
any) are paid or duly provided for, at the rate borne by the Securities (to
the extent payment of such interest shall be legally enforceable).
If an Event of Default, as defined in this Section 5, occurs
with respect to the Securities, the Company shall within five business days of
becoming aware thereof notify the Fiscal Agent in writing, of such Event of
Default and the Fiscal Agent shall thereupon promptly notify all of the holders
of the Securities of such Event of Default.
The Company shall provide to the Fiscal Agent on each
anniversary of the date hereof, a certificate to the effect that there is then
existing no Event of Default.
6. Merger, Consolidation, Sale, Conveyance or Assumption.
(a) The Company will not merge or consolidate with, or sell
or convey all or substantially all of its assets to, any other corporation,
unless (i) either (A) the Company shall be the surviving corporation in the
case of a merger or (B) (I) the surviving, resulting or transferee corporation
shall expressly assume the due and punctual payment (including Additional
Amounts pursuant to Section 2 hereof, if any) of all the Securities, according
to their tenor, and the due and punctual performance of all of the covenants
and obligations of the Company under the Securities, the coupons and the
Fiscal Agency Agreement, by supplemental agreement reasonably satisfactory to
<PAGE> 71
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the Fiscal Agent, (II) immediately after such merger, consolidation, sale or
conveyance, the Securities will not be subject to United States Federal estate
tax as a result thereof, if held by a person who at the time of death is not a
citizen or resident of the United States unless such successor corporation
shall have agreed, by supplemental agreement, to indemnify the persons liable
therefor for the amount of the United States Federal estate tax attributable
and paid in respect of any Securities includable in the gross estate of a
person who at the time of death is not a citizen or resident of the United
States or unless the Securities would be subject to United States Federal
estate tax immediately prior to such merger, consolidation, sale or conveyance
if held by a person who at the time of death is not a citizen or resident of
the United States, and (III) the Fiscal Agent shall have received the doc-
umentation required in the context by the Fiscal Agency Agreement, (ii) the
surviving, resulting or transferee corporation, if not organized and validly
existing under the laws of the United States, shall expressly agree to make
payment under the Securities free of any deduction or withholding for or on
account of taxes, levies, imposts and charges whatsoever imposed by or for the
account of the jurisdiction where such successor corporation is generally
subject to taxation (or any political subdivision or taxing authority thereof
or therein) in a manner equivalent to that set forth herein, subject to the
exceptions contained in such forms of the Securities, and (iii) the Company or
such successor corporation, as the case may be, shall not, immediately after
such merger, consolidation, sale or conveyance, be in default in the
performance of any covenants or obligations of the Company under the Securi-
ties or the Fiscal Agency Agreement. In calculating the amount of tax
attributable to any Securities for purposes of sub-clause (II) above in
accordance with the provisions of the Internal Revenue Code of 1986, as
amended, the gross estate of the decedent shall be deemed to include only
Securities issued under the Fiscal Agency Agreement.
(b) Upon any merger, consolidation, sale, conveyance or
assumption as provided in Section 6(a), the successor or assuming corporation
shall succeed to and be substituted for, and may exercise every right and power
of and be subject to all the obligations of, the Company under the Securities
and the Fiscal Agency Agreement, with the same effect as if such successor or
assuming corporation had been named as the Company therein and herein and the
Company shall be released from its liability as obligor under the Securities
and the Fiscal Agency Agreement.
<PAGE> 72
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7. Agreement of Subordination of Securities.
(a) The Company, for itself, its successors and assigns,
covenants and agrees, and each holder of Securities and coupons by his
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of and interest and Additional Amounts (pursuant to Section 2 hereof)
on each and all of the Securities and coupons is hereby expressly subordi-
nated, to the extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of all Senior Indebtedness of the Company.
"Senior Indebtedness of the Company" shall mean the principal
of (and premium, if any) and interest and other monetary obligations on the
following whether outstanding at the date of this Security or hereafter
incurred or created:
(i) any indebtedness of the Company (excluding the
Securities and indebtedness ranking pari passu with the Securities),
including, without limitation, all "Obligations" in respect of (A)
letters of credit and all "Obligations" under (B) the Second
Amended and Restated Credit Agreement dated as of April 30, 1994 among
Apache, the Lenders named therein, First National Bank of Chicago as
Administrative Agent and Collateral Agent and Chemical Bank as
Co-Agent, (C) the 3.93% Convertible Notes due 1997 under the Note
Agreement dated as of November 30, 1992, (D) the 9.25% Notes due 2002
under the Indenture dated as of May 15, 1992 between the Company and
Norwest, Minnesota, N.A., (E) the Credit Agreement dated as of July
24, 1992 among the Company, First National Bank of Chicago as Lending
Agent and Bank of Montreal, Chemical Bank and NationsBank as Lenders;
(ii) all indebtedness and other obligations guaranteed
by the Company, or the payment and performance of which is
secured by a lien on property or assets of the Company; and
(iii) renewals, extensions, refundings, amendments
and modifications of any such indebtedness or obligations or of
the instruments creating or evidencing such indebtedness or
obligations;
unless by the terms of the instrument creating or evidencing such indebtedness
or such renewal, extension, refunding, amendment or modification, it is
provided that such indebtedness or
<PAGE> 73
A-22
indebtedness as so modified or amended, or such renewals, extensions or
refundings, are not superior in right of payment to the Securities.
(b) (i) In the event of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or other
similar proceedings in connection therewith, relative to the Company or to its
creditors, in their capacity as such creditors, or to its property, or in the
event of any proceedings for voluntary liquidation, dissolution or other
winding up of the Company, whether or not involving insolvency or bankruptcy,
or in the event of any assignment for the benefit of creditors of the Company
or any marshalling of assets of the Company, then the holders of Senior
Indebtedness of the Company shall first be entitled to receive payment in full
in cash of the principal of (and premium, if any) and interest, including
interest thereon accruing after the commencement of any such proceeding
(whether or not allowed in such proceeding), on all Senior Indebtedness of
the Company before the holders of any of the Securities or coupons shall be
entitled to receive any payment on account of the principal of or interest
and Additional Amounts (pursuant to Section 2 hereof) on the Securities, and to
that end the holders of Senior Indebtedness of the Company shall be entitled
to receive for application in payment thereof any payment of distribution of
any kind or character, whether in cash, property or securities, which may be
payable or deliverable in any such proceedings in respect of the Securities or
coupons, other than securities of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least
to the extent provided in this Section 7 with respect to the Securities, to the
payment of all Senior Indebtedness of the Company; provided, however, that
the rights of the holders of Senior Indebtedness of the Company are not altered
by such reorganization or readjustment. For the purposes of this Section 7
no consolidation, merger, conveyance or transfer made pursuant to the
provisions of Section 6 shall be deemed to be a liquidation, reorganization,
dissolution or other winding up of the Company.
(ii) If under the circumstances set forth in Section 7(b)(i),
and notwithstanding the provisions thereof, any payment or distribution of
assets of the Company of any kind, whether in cash, property or securities
(other than securities of the Company as reorganized or readjusted or securi-
ties of the Company or any other corporation provided for by a
<PAGE> 74
A-23
plan or reorganization or readjustment the payment of which is subordinated, at
least to the extent provided in this Section 7 with respect to the Securities,
to the payment of all Senior Indebtedness of the Company; provided, however,
that the rights of the holders of Senior Indebtedness of the Company are not
altered by such reorganization or readjustment), shall be received by the
holders of the Securities or coupons before the principal of (and premium, if
any) and interest on all Senior Indebtedness of the Company is paid in full,
such payment or distribution shall be paid over to the holders of Senior
Indebtedness of the Company ratably, for application to the payment of the
principal of (and premium, if any) and interest on all Senior Indebtedness of
the Company remaining unpaid until all the principal of (and premium, if any)
and interest on Senior Indebtedness of the Company shall have been paid in full
in cash, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness of the Company.
(iii) Upon any distribution of assets of the Company referred
to in this Section, the holders of Securities shall be entitled to rely upon
any final order or decree of a court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization proceedings are pending,
and the holders of Securities shall be entitled to rely upon a certificate of
the liquidating trustee or agent or other person making any distribution to the
holders of Securities for the purpose of ascertaining the persons entitled to
participate in such distribution, the holders of the Senior Indebtedness of the
Company 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 Section.
(c) (i) Upon the maturity of any Senior Indebtedness of
the Company by lapse of time, acceleration or otherwise, all principal
thereof (and premium, if any) and interest due thereon, including interest
thereon accruing after the commencement of any proceeding of the type
referred to in Section 7(b)(i) (whether or not allowed in such proceeding),
shall first be paid in full, or such payment duly provided for in cash, before
any payment, directly or indirectly, is made on account of the principal of or
interest and Additional Amounts (pursuant to Section 2 hereof) on the
Securities or coupons.
(ii) Upon the happening of an event of default with
respect to any Senior Indebtedness of the Company, as defined
<PAGE> 75
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therein or in the instrument under which it is outstanding, permitting the
holders to accelerate the maturity thereof, then, unless and until such event
of default shall have been cured or waived or shall have ceased to exist, no
payment shall be made by the Company, directly or indirectly, on account of the
principal of or interest and Additional Amounts (pursuant to Section 2 hereof)
on the Securities or coupons.
(iii) If, under the circumstances set forth in Section 7(c)(i)
or (ii) and notwithstanding the provisions thereof, any payment or distribution
of assets of the Company of any kind or character, whether in cash, property or
securities, shall be received by the Agent or the holders of the Securities,
such payment or distribution shall, subject to Section 7(f) and (g), be
received in trust for the benefit of the holders of such Senior Indebtedness
for application to the payment of all Senior Indebtedness remaining unpaid
until all such Senior Indebtedness shall have been paid in full, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
(d) In case cash, securities or other property otherwise
payable or deliverable to the holders of the Securities and coupons shall
have been applied, pursuant to Section 7(b) or (c), to the payment of Senior
Indebtedness of the Company, then upon the payment in full in cash of the prin-
cipal of (and premium, if any) and interest on all Senior Indebtedness of the
Company, the holders of the Securities and coupons shall be subrogated to any
rights of any holders of Senior Indebtedness of the Company to receive any
further payment or distributions applicable to Senior Indebtedness of the
Company until the principal of and interest and Additional Amounts (pursuant to
Section 2 thereof) on the Securities and coupons shall have been paid in full,
and such payments or distributions received by the holders of the Securities
and coupons, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness of the Company shall, as between the Company and its creditors
other than the holders of Senior Indebtedness of the Company, on the one hand,
and the holders of the Securities and coupons, on the other hand, be deemed to
be a payment by the Company on account of Senior Indebtedness of the Company
and not on account of the Securities and coupons.
(e) No present or future holder of any Senior
Indebtedness of the Company shall be prejudiced in any way in
<PAGE> 76
A-25
the right to enforce the subordination of the Securities by any act or failure
to act on the part of the Company. The provisions of this Section are solely
for the purpose of defining the relative rights of the holders of Senior
Indebtedness of the Company, on the one hand, and the holders of the Securities
and coupons, on the other hand, against the Company and its assets, and nothing
contained in this Section shall impair, as between the Company and the holder
of any Security or coupon, the obligation of the Company, which is
unconditional and absolute, to pay to the holder thereof the principal
thereof and interest and Additional Amounts (pursuant to Section 2 hereof)
thereon as and when the same shall become due and payable in accordance with
the terms thereof, or prevent the holder of any Security or coupon, upon
default hereunder or under such Security or coupon, from exercising all
rights, powers and remedies otherwise provided herein or therein or by
applicable law, all subject to the rights of the holders of Senior Indebtedness
of the Company under this Section to receive cash, property or securities
otherwise payable or deliverable to the holders of the Securities and coupons.
(f) Nothing contained in this Section or in any of the
Securities or coupons shall prevent at any time, except under the conditions
described in Sections 7(b) and (c) hereof or during the pendency of any
dissolution, winding up liquidation or reorganization proceedings therein
referred to, the Company from making payments at any time of principal of or
interest or Additional Amounts, if any, on the Securities. Nothing contained in
this Section shall prevent conversions of Securities.
(g) Notwithstanding the provisions of this Section or any
other provision of the Fiscal Agency Agreement, the Fiscal Agent shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Fiscal Agent in respect of the Securities,
unless and until the Fiscal Agent shall have received written notice thereof at
the address specified in Section 19 of the Fiscal Agency Agreement from the
Company or a holder of Senior Indebtedness or from any trustee or agent
therefor at least two business days prior to the making of any payment; and,
prior to the receipt of any such written notice, the Fiscal Agent, subject to
the provisions of Section 11 of the Fiscal Agency Agreement, shall be entitled
in all respects to assume that no such facts exist.
<PAGE> 77
A-26
Subject to the provisions of Section 11 of the Fiscal Agency
Agreement, the Fiscal Agent 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
Indebtedness (or a trustee or agent on behalf of any such holder). In the
event that the Fiscal Agent determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Section 7, the Fiscal Agent may request such person to furnish evidence to the
reasonable satisfaction of the Fiscal Agent as to the amount of Senior
Indebtedness 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 Section, and if such evidence is not
furnished, the Fiscal Agent may defer any payment which it may be required to
make for the benefit of such person pursuant to the terms of this Security
pending judicial determination as to the rights of such person to receive such
payment.
(h) The Fiscal Agent shall not be deemed to owe any
fiduciary duty to the holders of Senior Indebtedness and shall not be liable to
any such holders if the Fiscal Agent 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 Indebtedness
shall be entitled by virtue of this Section or otherwise. The Fiscal Agent
shall not be charged with knowledge of the existence of Senior Indebtedness
or of any facts that would prohibit any payment hereunder unless a Trust
Officer of the Fiscal Agent shall have received notice to that effect at the
address of the Fiscal Agent set forth in Section 19 of the Agreement. With
respect to holders of Senior Indebtedness, the Fiscal Agent undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Section 7.
8. Replacement, Transfer and Exchange of Securities.
(a) In case any Security shall at any time become
mutilated, destroyed, stolen or lost and such Security or evidence of the
loss, theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required) shall be
delivered to the Fiscal Agent, a new Security of like tenor and date with
appropriate interest coupons, if any, will be issued by the Company in exchange
for the Security so mutilated, or in lieu of the
<PAGE> 78
A-27
Security so destroyed, stolen or lost, but, in the case of a destroyed, stolen
or lost Security only upon receipt of evidence satisfactory to the Fiscal
Agent and the Company that such Security was destroyed, stolen or lost, and if
required by the Fiscal Agent or the Company, upon receipt also of indemnity
satisfactory to the Fiscal Agent and the Company. All expenses and reasonable
charges associated with procuring such indemnity and with the preparation,
authentication and delivery of a new Security shall be borne by the owner of
the Security so mutilated, destroyed, stolen or lost.
(b) As provided in the Fiscal Agency Agreement and subject
to certain limitations therein set forth, Bearer Securities (with all
unmatured coupons appertaining thereto) are exchangeable at, subject to
applicable laws and regulations, the offices of the paying agencies in London
and Luxembourg or as designated by the Company for such purpose pursuant to the
Fiscal Agency Agreement, for an equal aggregate principal amount of Registered
Securities and/or Bearer Securities or authorized denominations, and Registered
Securities are exchangeable at the Corporate Trust Office of the Fiscal Agent
in The City of New York or, subject to applicable laws and regulations, the
offices of the paying agencies in London and Luxembourg or as designated by
the Company for such purpose pursuant to the Fiscal Agency Agreement, for an
equal aggregate principal amount of Registered Securities of authorized denomi-
nations as requested by the holder surrendering the same. Registered
Securities will not be exchangeable for Bearer Securities. The Company shall
not be required (a) to exchange Bearer Securities for Registered Securities
during the period between the close of business on any January 1 or July 1 and
the opening of business on the next succeeding interest payment date, or (b)
in the event of a redemption in part, (i) to register the transfer of
Registered Securities or to exchange Bearer Securities for Registered
Securities during a period of 15 days immediately preceding the date notice is
given identifying the serial numbers of the Securities called for such
redemption; (ii) to register the transfer of or exchange any such Registered
Securities, or portion thereof, called for redemption; or (iii) to exchange any
such Bearer Securities called for redemption; provided, however, that a
Bearer Security called for redemption may be exchanged for a Registered
Security which is simultaneously surrendered, with written instruction for pay-
ment on the date fixed for redemption, unless the date fixed for redemption is
during the period between the close of business on any January 1 or July 1
and the close of business on the next succeeding interest payment date, in
which case such
<PAGE> 79
A-28
exchange may only be made prior to the close of business on January 1 or July 1
immediately preceding the date fixed for redemption. The Company also shall
not be required to exchange Securities if, as a result thereof, the Company
would incur adverse consequences under United States Federal income tax laws in
effect at the time of such exchange. In the event of redemption or conversion
of a Registered Security in part only, a new Security or Securities for the
unredeemed or unconverted portion hereof will be issued in the name of the
holder thereof.
(c) The costs and expenses of effecting any exchange or
registration of transfer pursuant to the foregoing provisions, except for the
expenses of delivery by other than regular mail (if any) and except, if the
Company shall so require, the payment of a sum sufficient to cover any tax or
other governmental charge or insurance charges that may be imposed in
relation thereto, will be borne by the Company.
(d) The Company has initially appointed as registrar and
transfer agent the Fiscal Agent acting through its principal corporate trust
office in New York. The Company has also initially appointed Banque
Internationale a Luxembourg S.A. as a transfer agent. The Company may at any
time terminate the appointment of the registrar and transfer agent and appoint
additional or other registrars and transfer agents or approve any change in an
office through which the registrar or transfer agent acts; provided, however,
that, until all of the Securities have been delivered to the Fiscal Agent for
cancellation, or monies sufficient to pay the Securities have been made
available for payment and either paid or returned to the Company as provided
in the Securities, the Company will maintain a registrar and a transfer agent
in The City of New York in the United States and in Luxembourg, so long as the
Securities are registered on the Luxembourg Stock Exchange.
(e) For purposes of the provisions of this Security and the
Fiscal Agency Agreement, any Security authenticated and delivered pursuant to
the Fiscal Agency Agreement shall, as of any date of determination, be deemed
to be "outstanding", except for:
(i) Securities previously converted, or cancelled by
the Fiscal Agent or delivered to the Fiscal Agent for cancellation;
<PAGE> 80
A-29
(ii) Securities which have been called for redemption
by the Company in accordance with Section 3 hereof or
which have become due and payable at maturity or otherwise
and with respect to which monies sufficient to pay the
principal thereof and interest thereon shall have been
made available to the Fiscal Agent; or
(iii) Securities in lieu of or in substitution for
which other Securities have been authenticated and delivered
pursuant to the Fiscal Agency Agreement;
provided, however, that in determining whether the holders of the requisite
principal amount of outstanding Securities are present at a meeting of holders
of Securities for quorum purposes or have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities
owned by the Company or any subsidiary thereof shall be disregarded and deemed
not to be outstanding.
9. Modifications and Amendments.
(a) Without the consent of any holders of Securities or
coupons, modifications of or amendments to the Fiscal Agency Agreement may be
made for any of the following purposes:
(i) to evidence the succession of another corporation
to the Company and the assumption by any such successor of the
covenants of the Company in the Fiscal Agency Agreement or the
Securities;
(ii) to add to the covenants of the Company for the
benefit of the holders of Securities or coupons, or to
surrender any right or power herein conferred upon the
Company;
(iii) to permit payment of principal and interest on
Bearer Securities in the United States; provided, however,
that such payment is permitted by United States tax laws
and regulations then in effect;
(iv) to make provision with respect to the conversion
rights of holders of Securities pursuant to Section 4(g)
hereof;
(v) to cure any ambiguity, to correct or supplement
any provision herein or in the Fiscal Agency Agreement
<PAGE> 81
A-30
which may be inconsistent with any other provision herein;
and
(vi) to make any other provisions with respect to
matters or questions arising under this Security or the
Fiscal Agency Agreement; provided, however, such action
pursuant to this Section 9(a)(vi) shall not adversely
affect the interests of the holders of Securities or
coupons.
(b) Modifications and amendments to the Fiscal Agency
Agreement or to these Securities may be made, and future compliance with or
past default by the Company under any of the provisions thereof may be waived,
with the consent of the holders of at least a majority in aggregate principal
amount of the Securities at the time outstanding, or of such lesser percent-
age as may act at a meeting of holders of Securities held in accordance with
the provisions set forth herein; provided, however, that no such
modification, amendment or waiver may, without the consent of the holder of
each such Security affected thereby:
(i) waive a default in the payment of the principal
of or interest on any Security;
(ii) change the stated maturity of the principal of
or any installment of interest on, any Security, or reduce
the principal amount thereof or the rate of interest
thereon or change the obligation of the Company to pay
Additional Amounts pursuant to Section 2 hereof (except as
permitted by Section 9(a)), or change the coin or currency
in which any Security or the interest thereon is payable,
or adversely affect the right to redeem, pursuant to
Section 3(d) hereof and subject to the limitations set
forth therein, or convert any Security as herein provided
pursuant to Section 4, or modify the provisions of the
Securities with respect to subordination of the Securities
in a manner adverse to the holders;
(iii) reduce the requirements of Section 10 hereof for
quorum or voting, or reduce the percentage in principal
amount of the outstanding Securities the consent of whose
holders is required for any amendment or modification of
the Fiscal Agency Agreement or the Terms and Conditions of
the Securities or the consent of whose holders is required
for any waiver (of compliance with certain provisions of
the Fiscal Agency Agreement or the Securities or certain
<PAGE> 82
A-31
defaults hereunder and thereunder and their consequences)
provided for in these Terms and Conditions;
(iv) change the obligation of the Company to maintain
an office or agency in the City of New York and outside
the United States; or
(v) modify any of the provisions of this Section
except to increase any such percentage or to provide that
certain other provisions of the Fiscal Agency Agreement or
the Securities cannot be modified or waived without the
consent of the holder of each outstanding Security
affected thereby.
(c) No amendment, modification or waiver under this Section
may make any change to Section 7 hereof that adversely affects the holders of
any Senior Indebtedness of the Company then outstanding unless the holders of
such Senior Indebtedness of the Company (required to give such consent pursuant
to the terms of such Senior Indebtedness of the Company) consent to such
change.
It shall not be necessary for any act of holders of Securities
under this Section to approve the particular form of any proposed amendment,
modification or waiver, but it shall be sufficient if such act shall approve
the substance thereof. Any modifications, amendments or waivers to the Fiscal
Agency Agreement or to these Terms and Conditions will be conclusive and
binding on all holders of the Securities, whether or not they have given such
consent or, were present at such meeting, and on all holders of coupons,
whether or not notation of such modifications, amendments or waivers is made
upon the Securities or coupons, and on all future holders of Securities and
coupons. Any instrument given by or on behalf of any holder of a Security in
connection with any consent to any such modification, amendment or waiver
will be irrevocable once given and will be conclusive and binding on all
subsequent holders of such Security.
10. Meetings and Votes of Holders.
(a) A meeting of holders of Securities may be called at any
time and from time to time pursuant to this Section for any of the following
purposes: (i) to give any notice to the Company or to the Fiscal Agent, or to
give any directions to the Fiscal Agent, or to consent to the waiving of any
default hereunder and its consequences, or to take any other action
<PAGE> 83
A-32
authorized to be taken by holders of Securities pursuant to these Terms and
Conditions; or (ii) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of the
Securities under any other provision of the Fiscal Agency Agreement, under
applicable law or under these Terms and Conditions.
(b) Meetings of holders of Securities may be held at such
place or places in New York City or London as the Fiscal Agent or, in case of
its failure to act, the Company or the holders calling the meeting shall from
time to time determine.
The Fiscal Agent may at any time call a meeting of holders of
the Securities to be held at such time and at such place in any of such
designated locations as the Fiscal Agent shall determine. Notice of every
meeting of holders shall be made as specified in the Fiscal Agency Agreement.
In case at any time the Company or the holders of at least 25%
in aggregate principal amount of the Securities outstanding shall have
requested the Fiscal Agent to call a meeting of the holders, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Fiscal Agent shall not have given the first notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company
or the holders of Securities in the amount above specified may determine the
time and the place in such designated locations for such meeting and may call
such meeting to take any action authorized herein by giving notice thereof as
provided in the Fiscal Agency Agreement.
(c) To be entitled to vote at any meeting of holders of
Securities, a person shall be (i) a holder of one or more Securities, or (ii) a
person appointed by an instrument in writing as proxy for a holder or holders
of Securities by such holder or holders, which proxy need not be a holder of
Securities. The only persons who shall be entitled to be present or to speak
at any meeting of holders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Fiscal Agent and its
counsel and any representatives of the Company and its counsel. The persons
entitled to vote a majority in principal amount of the Securities shall
constitute a quorum for the transaction of all business specified in Section
10(a) hereof. No business shall be transacted in the absence of a quorum
unless a quorum is represented when the meeting is called to order. In the
absence of a
<PAGE> 84
A-33
quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of the holders of Securities, be
dissolved. In any other case the meeting shall be adjourned for a period of
not less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in the Fiscal Agency Agreement.
Subject to the foregoing, at the reconvening of any meeting adjourned for a
lack of a quorum the persons entitled to vote 25% in principal amount of the
Securities outstanding shall constitute a quorum for the taking of any action
set forth in the notice of the original meeting. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage of the aggregate
principal amount of the Securities that shall constitute a quorum. At a
meeting or an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid, any resolution and all matters (except as limited by
Section 9 of these Terms and Conditions) shall be effectively passed and
decided if passed or decided by the persons entitled to vote a majority in
principal amount of the Securities represented and voting at such meeting;
provided, however, that such amount shall be not less than 25% in principal
amount of the Securities outstanding. Any holder of a Security who has exe-
cuted an instrument in writing appointing a person as his proxy shall be deemed
to be present for the purposes of determining a quorum and be deemed to have
voted; provided, however, that such holder shall be considered as present or
voting only with respect to the matters covered by such instrument in writing.
Any resolution effectively passed or decision taken at any meeting of the
holders of Securities duly held in accordance with this Section 10 shall be
binding on all the holders of Securities whether or not present or represented
at the meeting.
(d) The Fiscal Agent may make such reasonable regulations
as may deem advisable for any meeting of holders of Securities in regard to
proof of the holding of Securities and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Bearer Securities shall be proved by the production
of the Bearer Securities or by a certificate executed, as depositary, by, and
the appointment of any proxy shall be proved by having the signature of the
person executing the proxy witnessed or
<PAGE> 85
A-34
guaranteed by, in each case, any trust company, bank or banker satisfactory to
the Fiscal Agent. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified herein or other proof. The holding of Registered
Securities shall be proved by the registry books maintained in accordance
with the Fiscal Agency Agreement or by a certificate or certificates of the
Fiscal Agent in its capacity as the Company's agent for the maintenance of
such books.
(e) The Fiscal Agent shall, by an instrument in writing,
appoint a temporary chairperson and a temporary secretary of the meeting,
unless the meeting shall have been called by the Company or by the holders of
the Securities as provided herein and in the Fiscal Agency Agreement, in which
case the Company or the holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairperson and a temporary secretary. A
permanent chairperson and a permanent secretary of the meeting shall be
elected by vote of the holders of a majority in principal amount of the
Securities represented at the meeting and entitled to vote. At any meeting
each holder or proxy shall be entitled to one vote for each U.S. $1,000
principal amount of Securities held or represented by him; provided, however,
that no vote shall be cast or counted at any meeting in respect of any
Securities challenged as not outstanding and ruled by the chairperson of the
meeting to be not outstanding. The chairperson of the meeting shall have no
right to vote, except as a holder or proxy. Any meeting of holders of
Securities duly called at which a quorum is present may be adjourned from time
to time by vote of the holders (or proxies for the holders) of a majority in
principal amount of the Securities represented at the meeting and entitled to
vote; and the meeting may be held as so adjourned without further notice.
(f) The vote upon any resolution submitted to any meeting
of holders of Securities shall be written ballots on which shall be subscribed
the signatures of the holders of Securities or of their representatives by
proxy and the serial number or numbers of the Securities held or represented by
them. The permanent chairperson of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of holders
of Securities shall be prepared by the
<PAGE> 86
A-35
secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
published as provided in the Fiscal Agency Agreement. Each copy shall be signed
and verified by the affidavits of the chairperson and secretary of the
meeting, and one of such copy shall be delivered to the Company and another to
the Fiscal Agent to be preserved by the Fiscal Agent, the copy delivered to the
Fiscal Agent to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the matters
therein stated.
11. Non-Business Days.
In any case where the date of maturity of the principal of or
interest on (or Additional Amounts, if any) the Securities or the date fixed
for redemption of any Security shall be at any place of payment a Saturday,
Sunday, a legal holiday or a day on which banking institutions are authorized
or obligated by law to close, then payment of principal or interest (or
Additional Amounts, if any) need not be made on such date at such place but may
be made on the next succeeding day at such place of payment which is not a
Saturday, Sunday, a legal holiday or a day on which banking institutions are
authorized or obligated by law to close, with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no
interest shall accrue for the period after such date.
12. Fiscal and Paying Agent.
(a) In acting under the Fiscal Agency Agreement and in
connection with the Securities, the Fiscal Agent is acting solely as agent of
the Company and does not assume any obligation towards or relationship of
agency or trust for or with the owner or holder of this Security or any
interest coupon appertaining hereto, except that any funds held by the Fiscal
Agent for payment on this Security shall be held in trust by it and applied as
set forth herein, but need not be segregated from other funds held by it,
except as required by law. For a description of the duties and the immunities
and rights of the Fiscal Agent under the Fiscal Agency Agreement, reference is
made to the Fiscal Agency Agreement, and the obligations of the Fiscal Agent to
the holder hereof are subject to such immunities and rights.
<PAGE> 87
A-36
(b) Any monies paid by the Company to any paying agency for
payment or principal of or interest on any Security (including Additional
Amounts, if any, in respect thereof) and remaining unclaimed for two years
after such payment has been made shall be repaid to the Company and to the
extent permitted by law the holder of any Security shall thereafter look only
to the Company for any payment thereof as a general unsecured obligation
thereof and all liability of the Fiscal Agent with respect thereto shall cease.
(c) No reference herein to the Fiscal Agency Agreement
and no provision of this Security or of the Fiscal Agency Agreement shall alter
or impair the obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest (including Additional Amounts, as
described above) on this Security at the times, places and rate, and in the
coin or currency, herein prescribed or to convert or redeem (at the request of
a holder) this Security as provided herein or in the Fiscal Agency Agreement.
Title to Bearer Securities and coupons shall pass by delivery.
As provided in the Fiscal Agency Agreement and subject to certain limitation
therein set forth, the transfer of Registered Securities is registrable on the
Security Register upon surrender of a Registered Security for registration of
transfer at the office or agency of the Security Registrar in the City of New
York, or, subject to applicable laws and regulations, at the offices of the
paying agency in Luxembourg, 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 thereof or his attorney duly authorized
in writing, and thereupon one or more new Registered Securities, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
13. Notices.
All notices to the holders of Securities will be published in
the English language in an Authorized Newspaper (as defined in the Fiscal
Agency Agreement) in New York City and in London, and, as long as the
Securities are listed on the Luxembourg Stock Exchange, in Luxembourg. It is
expected that publication in New York City will be made in The Wall Street
Journal (Eastern edition), in London in the Financial Times and in Luxembourg
in the Luxemburger Wort. Notices shall be deemed to have been given on the
date of publication as aforesaid or, if
<PAGE> 88
A-37
published on different dates, on the date of the first such publication.
Notices will be mailed to registered holders of Registered Securities at their
registered addresses as the same shall appear on the books of the Fiscal Agent
on the day fifteen days prior to such mailing.
14. Governing Law.
(a) The Fiscal Agency Agreement, the Securities and any
coupons appertaining thereto shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to its choice of
law rules.
(b) The Company has appointed Chemical Bank, 450 West 33rd
Street, 15th Floor, New York, New York 10001 (Attention: Corporate Trust,
Agency Administration) as its agent upon whom process may be served in any
suit, action or proceeding relating to any or arising out of this Security,
the Fiscal Agency Agreement or any coupon appertaining hereto, with a copy to
the Company at One Post Oak Central, 2000 Post Oak Boulevard, Suite 100,
Houston, Texas 77056-4400 (Attention: Corporate Secretary).
15. Authentication.
This Security and any coupon appertaining thereto shall not
become valid or obligatory for any purpose until the certificate of
authentication hereon shall have been duly signed by the Fiscal Agent acting
under the Fiscal Agency Agreement.
16. Warranty of the Issuer.
Subject to Section 15 hereof, the Company hereby certifies
and warrants that all acts, conditions and things required to be done and
performed and to have happened precedent to the creation and issuance of this
Security and any coupons appertaining thereto, and to constitute the same
legal, valid and binding obligations of the Company enforceable in accordance
with their terms, have been done and performed and have happened in due and
strict compliance with all applicable laws.
17. Accounting Terms.
All accounting terms not otherwise defined herein shall have
the meanings assigned to them in accordance with
<PAGE> 89
A-38
generally accepted accounting principles as applied in the United States.
18. Descriptive Headings.
The descriptive headings appearing herein are for convenience
of reference only and shall not alter, limit or define the provisions hereof.
<PAGE> 90
A-39
TRANSFER NOTICE
Only if a Registered Security or Common Stock issued upon
conversion of any Security is transferred (if no registration statement
covering such Common Stock is effective):
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s),
assign(s) and transfer(s) unto ______________________________________________
whose taxpayer identification number is _________________________ and whose
address including postal/zip code is _________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing _______________________ attorney-in-fact to transfer said
Security on the books of the Company with full power of substitution in the
premises.
In connection with the transfer of this Security, the
undersigned Holder certifies that:
[Check one]
[ ] (a) This Security is being transferred to a
"qualified institutional buyer" (as
defined in Rule 144A under the Securi-
ties Act of 1933) in compliance with
the exemption from registration under
the Securities Act of 1933 provided by
Rule 144A.
[ ] (b) This Security is being transferred in an
Offshore Transaction (as defined in
Regulation S under the Securities Act of
1933) in compliance with the exemption
from registration under the Securities
Act of 1933 provided by Regulation S.
[ ] (c) This Security is being transferred to a
sophisticated institutional investor
which is an "accredited investor"
(within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities
Act of 1933) in a transaction not
involving any general solicitation or
advertising; and attached hereto is an
opinion of U.S. counsel to the effect
<PAGE> 91
A-40
that such transfer is exempt from reg-
istration under the Securities Act of
1933.
Dated: ______________ Name: _____________________
By: _______________________
Title: ____________________
NOTICE: The signature of the Holder to
this assignment must correspond with the
name as written upon the face of the
within instrument in every particular,
without enlargement or any change
whatsoever.
SIGNATURE GUARANTEED
_________________________________
TO BE COMPLETED BY A BROKER OR DEALER IF (c) ABOVE IS CHECKED:
The undersigned represents and warrants that (i) it is a broker
or dealer registered under Section 15 of the Securities Exchange Act of 1934,
(ii) each person which will become a beneficial owner of this Security upon
transfer is a sophisticated institutional investor which is an "accredited
investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933); (iii) no general solicitation or advertising was
made or used by it in connection with the offer and sale of this Security to
such person(s); and (iv) each such person has been notified that this Security
has not been registered under the Securities Act of 1933 and is subject to the
restrictions on transfer of the Security set forth herein and in the Fiscal
Agency Agreement.
Dated: ___________________________ ______________________________
By: __________________________
IF NONE OF THE FOREGOING BOXES IS CHECKED, THE FISCAL AGENT
SHALL NOT BE OBLIGATED TO REGISTER THE TRANSFER OF THIS SECURITY UNLESS AND
UNTIL THE CONDITIONS TO ANY SUCH TRANSFER
<PAGE> 92
A-41
OF REGISTRATION SET FORTH HEREIN, ON THE FACE HEREOF AND IN THE FISCAL AGENCY
AGREEMENT SHALL HAVE BEEN SATISFIED.
<PAGE> 93
A-42
CONVERSION NOTICE
If Bearer Security of denomination U.S. $1,000:
The undersigned holder of this Security hereby irrevocably
exercises the option to convert this Security into shares of Common Stock of
Apache Corporation in accordance with the terms of this Security and directs
that such shares be registered in the name of and delivered, together with a
check in payment for any fractional share, to the undersigned at the address
specified below unless a different name has been indicated below. If shares
are to be registered in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Dated: __________________________ ________________________________________
Signature
[MUST BE GUARANTEED]
Please print name and address
of holder:
________________________________________
________________________________________
________________________________________
If shares are to be registered in the
name of and delivered to a person other
than the holder, please print such
person's name and address:
________________________________________
________________________________________
________________________________________
<PAGE> 94
A-43
CONVERSION NOTICE
If Bearer Security of denomination U.S. $10,000 or Registered Security:
The undersigned holder of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof (which is
U.S. $1,000 or an integral multiple thereof) below designated, into shares of
Common Stock of Apache Corporation in accordance with the terms of this Secu-
rity, and directs that such shares, together with a check in payment for any
fractional share and any Securities representing any unconverted principal
amount hereof, be registered (if a Registered Security) in the name of the
undersigned and delivered to the undersigned at the address specified below
unless the undersigned has otherwise indicated below. If shares or Securities
are to be registered in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Dated: _______________________ _____________________________
Signature
[MUST BE GUARANTEED]
Please print name and address
of holder:
______________________________
______________________________
______________________________
If shares or Securities are to If only a portion of the
be registered in the name of a Securities is
to be person other than the holder, converted please indicate:
please print such person's name
and address: 1. Principal Amount to be
converted: U.S.$ ____
______________________________
2. Kind, amount and denomi-
______________________________ nation of Securities
representing unconverted
______________________________ principal amount to be
issued:
<PAGE> 95
A-44
Bearer-U.S.$________________
Denominations: U.S.$ ______
(U.S. $1,000 or $10,000)
Registered-U.S.$____________
Denominations: U.S.$_______
(U.S. $1,000 or an integral
multiple thereof)
Registered Securities are
not exchangeable for Bearer
Securities.
<PAGE> 96
A-45
REDEMPTION NOTICE UNDER SECTION 3(d)
If Bearer Security of denomination U.S. $1,000:
The undersigned holder of this Security hereby requests and
instructs the Company to redeem this Security in accordance with the terms of
Section 3(d) of this Security and directs that a check in payment of the
redemption amount be delivered to the undersigned unless a different name has
been indicated below. The undersigned understands that this request can be
revoked by delivering written notice to the Paying Agent on or before the
Holder Redemption Date, together with the undersigned's non-transferable
receipt for such Security.
Dated: __________________________ ________________________________
Signature
[MUST BE GUARANTEED]
Name and address of
holder (please print):
________________________________
________________________________
________________________________
If a check in payment of the
redemption amount is to be
delivered to a person other
than the holder, please
print such person's name and
address:
________________________________
________________________________
________________________________
<PAGE> 97
A-46
REDEMPTION NOTICE UNDER SECTION 3(d)
If Registered Security or Bearer Security of denomination U.S. $10,000:
The undersigned holder of this Security hereby requests and
instructs the Company to redeem this Security or portion hereof (which is U.S.
$1,000 or an integral multiple thereof) in accordance with the terms of Section
3(d) of this Security, and directs that a check in payment of the redemption
amount be delivered to and any Securities representing any unredeemed principal
amount hereof, be delivered to and be registered in the name of the
undersigned unless a different name has been indicated below. If Securities
are to be registered in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto. The
undersigned understands that this request can be revoked by delivering written
notice to the Paying Agent on or before the Holder Redemption Date, together
with the undersigned's non-transferable receipt for such Security.
Dated: _______________________ _____________________________
Signature
[MUST BE GUARANTEED]
Name and address of holder
(please print):
______________________________
______________________________
______________________________
If Securities are to be registered If only a portion of the
in the name of, or a check in Securities is to be redeemed,
payment of the redemption amount please indicate:
is to be to, a person other than
the holder, please print such
person's name and address: 1. Principal Amount to be
redeemed: U.S.$ ____
______________________________
2. Kind, amount and denomi-
______________________________ nation of Securities
representing unredeemed
______________________________ principal amount to be
issued:
<PAGE> 98
A-47
Bearer-U.S.$________________
Denominations: U.S.$ ______
(U.S. $1,000 or $10,000)
Registered-U.S.$____________
Denominations: U.S.$_______
(U.S. $1,000 or an integral
multiple thereof)
Registered Securities are
not exchangeable for Bearer
Securities.
<PAGE> 99
EXHIBIT B
<PAGE> 100
(FORM OF GLOBAL SECURITY)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS
SECURITY NOR ANY PORTION HEREOF MAY BE OFFERED OR SOLD DIRECTLY OR INDIRECTLY
IN THE UNITED STATES OF AMERICA, ITS TERRITORIES OR POSSESSIONS ("UNITED
STATES") OR TO CITIZENS, NATIONALS OR RESIDENTS THEREOF OR TO ANY CORPORA-
TION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN OR UNDER THE LAWS OF
THE UNITED STATES OR ANY POLITICAL SUBDIVISION THEREOF OR TO ANY ESTATE OR
TRUST WHICH IS SUBJECT TO UNITED STATES FEDERAL INCOME TAXATION REGARDLESS OF
THE SOURCE OF ITS INCOME OR TO ANY OTHER PERSON DEEMED A U.S. PERSON UNDER
REGULATION S UNDER THE SECURITIES ACT, EXCEPT BRANCHES OR AGENCIES OF UNITED
STATES BANKS OR INSURANCE COMPANIES THAT OPERATE OUTSIDE THE UNITED STATES FOR
VALID BUSINESS REASONS AS LOCALLY REGULATED BRANCHES OR AGENCIES ENGAGED IN THE
BANKING OR INSURANCE BUSINESS AND NOT SOLELY FOR THE PURPOSE OF INVESTING IN
SECURITIES NOT REGISTERED UNDER THE SECURITIES ACT ("UNITED STATES PERSONS")
OTHER THAN ANY PORTION OF THIS SECURITY SOLD, SUBJECT TO CERTAIN RESTRICTIONS,
PURSUANT TO RULE 144A OR REGULATION S UNDER THE SECURITIES ACT.
ANY UNITED STATES PERSON WHO HOLDS THIS SECURITY WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) and 1287(a) OF THE UNITED STATES
INTERNAL REVENUE CODE.
APACHE CORPORATION
(Incorporated in the State of Delaware)
6% CONVERTIBLE SUBORDINATED DEBENTURES DUE
2002
TEMPORARY GLOBAL DEBENTURE
CUSIP No. 037411AH8 U.S. $84,500,000
APACHE CORPORATION, a corporation duly incorporated and
existing under the laws of the State of Delaware (the "Company") for value
received, hereby promises to pay to bearer upon presentation and surrender of
this Global Security the Principal sum of Eighty-four Million Five Hundred
Thousand United States Dollars on January 15, 2002 and to pay interest thereon,
from the date hereof, semiannually in arrears on January 15 and July 15 in each
year, commencing July 15, 1995, at the rate of 6% per annum, until the
principal hereof is paid
<PAGE> 101
B-2
or made available for payment; provided, however, that interest on this Global
Security shall be payable only after the issuance of the Definitive
Securities for which this Global Security is exchangeable and, in the case of
Definitive Securities in bearer form, only upon presentation and surrender of
the interest coupons thereto attached as they severally mature.
This Global Security is one of a duly authorized issue of
Securities of the Company designated as specified in the title hereof (the
"Securities"). This Global Security and the Definitive Securities for which it
is exchangeable, as described below, are entitled to the benefits of a Fiscal
Agency Agreement of even date herewith (the "Fiscal Agency Agreement") among
the Company and Chemical Bank, as Fiscal Agent, Paying Agent, Security
Registrar, and Conversion Agent (the "Fiscal Agent"). It is a temporary
security and is exchangeable in whole or from time to time in part without
charge upon request of the holder hereof for Definitive Securities in bearer
form, with interest coupons attached, (a) not earlier than 40 days after the
date hereof and (b) as promptly as practicable following presentation of
certification, in the form set forth as Exhibits C and D of the Fiscal Agency
Agreement for such purpose, that the beneficial owner or owners of this
Global Security (or, if such exchange is only for a part of this Global
Security, of such part) are not United States Persons. Upon any exchange of a
part of this Global Security for Definitive Securities, the portion of the
principal amount hereof so exchanged shall be endorsed by the Fiscal Agent on
the Schedule of Exchanges hereto, and the principal amount hereof shall be
reduced for all purposes by the amount so exchanged.
Until exchanged in full for Definitive Securities, this Global
Security shall in all respects be entitled to the same benefits under, and
subject to the same terms and conditions of, the Fiscal Agency Agreement as
Definitive Securities authenticated and delivered thereunder, except that
neither the holder hereof nor the beneficial owners of this Global Security
shall be entitled to receive payment of interest hereon, except as provided
above, or to convert this Global Security into Common Stock of the Company or
any other security, cash or other property.
This Global Security shall be governed by and construed in
accordance with the laws of the State of New York.
<PAGE> 102
B-3
All terms used in this Global Security which are defined in the
Fiscal Agency Agreement shall have the meanings assigned to them in the Fiscal
Agency Agreement.
Unless the certificate of authentication hereon has been
executed by an authorized signatory of the Fiscal Agent, this Global Security
shall not be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this Global
Security to be duly executed in its corporate name by its duly authorized
signatory.
Dated as of January 4, 1995
APACHE CORPORATION
By: _____________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the Global Security described in the within-mentioned Fiscal Agency
Agreement.
CHEMICAL BANK, as Fiscal Agent
By: _____________________________
Authorized Signatory
<PAGE> 103
B-4
SCHEDULE OF EXCHANGES
<TABLE>
<CAPTION>
Remaining
principal
Principal amount
amount exchanged following Notation made
Date for Definitive such on behalf of
made Securities exchange the Fiscal Agent
---- ---------------- --------- ----------------
<S> <C> <C> <C>
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
__________ ________________ _____________ ________________
</TABLE>
<PAGE> 104
EXHIBIT C
<PAGE> 105
Form of Certificate to be Given by
The Euroclear Operator and Cedel
CERTIFICATION
APACHE CORPORATION
U.S. $172,500,000
6% Convertible Subordinated Debentures
due January 15, 2002
(the "Securities")
This is to certify that, based solely on certifications we
have received in writing, by tested telex or by electronic transmission from
member organizations appearing in our records as persons being entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Fiscal Agency Agreement, as of
the date hereof, [principal amount of the above-captioned Securities] is owned
by persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
or any other person deemed a "U.S. person" under Regulation S under the U.S.
Securities Act of 1933, as amended ("United States persons").
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
territories and possessions, including Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available
herewith for exchange any portion of the Global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organization with respect to any portion of the
part submitted herewith for exchange are no longer true and cannot be relied
upon as the date hereof.
We understand that this certification is required in connection
with certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith,
<PAGE> 106
-2-
if administrative or legal proceedings are commenced or threatened in
connection with which this certification is or would be relevant, we
irrevocably authorize you to produce this certification to any interested
party in such proceedings.
Dated: __________, 1995*
Yours faithfully,
[_____________________________________
(____________________________Office)
as Operator of the Euroclear
System]
[Cedel]*
By:___________________________________
_________________________
* To be dated no earlier than the date which is 40 days
after January __, 1995.
* Delete as appropriate.
<PAGE> 107
EXHIBIT D
<PAGE> 108
Form of Certificate of Beneficial Ownership
for Bearer Securities to be Provided to the
Euroclear Operator or to Cedel
CERTIFICATION
APACHE CORPORATION
U.S. $172,500,000
6% Convertible Subordinated Debentures
due January 15, 2002
(the "Securities")
This is to certify that as of the date hereof and except as
provided in the fourth paragraph hereof, the above-captioned Securities held
by you for our account:
(a)(i) are owned by a person that is not a citizen or a
resident of the United States, or a domestic partnership, a domestic
corporation or any estate or trust the income of which is subject to United
States federal income taxation regardless of its source or any other person
deemed a "U.S. person" under Regulation S under the U.S. Securities Act of
1933, as amended (a "United States Person"), or
(ii) are owned by a United States Person that
is (A) the foreign branch of a United States financial institution
(as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v)) (a "financial institution") purchasing for its own
account or for resale, or (B) a United States Person who acquired the
Securities through the foreign branch of a United States financial
institution and who holds the Securities through such financial
institution on the date hereof (and in the case of either clause (A) or
(B), the financial institution hereby agrees for the benefit of the
Company to comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the United States Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or
(iii) are owned by a financial institution for
purposes of resale during the restricted period (as defined in
United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)).
<PAGE> 109
-3-
In addition, financial institutions described in clause (iii)
of the preceding sentence (whether or not also described in clause (i) or (ii))
certify that they have not acquired the Securities for purposes of resale
directly or indirectly to a United States Person or to a person within the
United States.
(b) Do not constitute part of an unsold allotment or
subscription of a distributor (as defined in United States Treasury Regulations
Section 1.163-5(c)(2)(i)(D)).
As used herein "United States" means the United States of
America (including the States and the District of Columbia), and its
territories and possessions, including Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you by telex or by electronic
transmission if the above statement as to beneficial ownership is not correct
on any date of exchange by us of a portion of the Global Security for
Definitive Securities as to all of the above-captioned Securities then
appearing in your books as being held for our account.
This certificate excepts and does not relate to U.S. $___
principal amount of the above-captioned Securities appearing on your books as
being held for our account as to which we are not yet able to certify and as to
which we understand that exchange and delivery of Definitive Securities cannot
be made until we are able so to certify.
We understand that this certificate is required in connection
with certain tax regulations in the United States. If administrative or legal
proceedings are commenced or
<PAGE> 110
-4-
threatened in connection with which this certificate is or would be relevant,
we irrevocably authorize you to produce this certification to any interested
party in such proceedings.
Dated: _________________, 1995*
[Name]
By: ______________________________
Signature
As, or as agent for, the
beneficial owner(s) of the
Securities to which this
certificate relates.
_________________________
* Not earlier than 15 days prior to the date which is 40
days after January 4, 1995.
<PAGE> 111
EXHIBIT E
<PAGE> 112
Form of Certificate of Beneficial
Ownership
for Registered Securities to be Provided
to the
Euroclear Operator or to Cedel
Please issue $____________ of the U.S. $172,500,000 6%
Convertible Subordinated Debentures due January 15, 2002 (the "Securities"), of
Apache Corporation held by you for our account in registered form. We hereby
certify to you that we are not a U.S. person as defined in Regulation S under
the United States Securities Act of 1933, as amended. The exact name of the
beneficial holder that the Securities are to be registered in is as follows:
This certificate does not constitute such certification on
Form W-8 or its equivalent as may be necessary to avoid imposition of
withholding and/or back-up withholding under U.S. federal tax law with respect
to any payments of interest on the Securities.
We irrevocably authorize you to produce this certificate or a
copy hereof to any interested party in any administrative or proceedings with
respect to the matters covered by this certificate.
Dated: ________________, 1995 *
[Name]
By: ______________________________
Signature
[to be completed by the
account holder as, or as
agent for, the beneficial
owner(s) of the Securities
to which this certificate
relates.]
_________________________
* To be dated not earlier than the date which is 40 days
after January 4, 1995.
