SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported)
February 23, 1996
J.P. MORGAN & CO. INCORPORATED
(Exact Name of Registrant as Specified in Charter)
Delaware 33-64193 13-2625764
(State or Other (Commission File (IRS Employer
Jurisdiction of Number) Identification
Incorporation) No.)
60 Wall Street, New York, New York 10260-0060
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code
(212) 483-2323
N/A
(Former Name or Former Address, if Changed
Since Last Report)
<PAGE>
Item 5. Other Events
J.P. Morgan & Co. Incorporated (the "Company") and
First Trust of New York, National Association, as Trustee (the
"Trustee"), will execute and deliver the Second Supplemental
Indenture, to be dated as of February 27, 1996 (a form of which
is filed herewith), to the Indenture, dated as of August 15,
1982, as amended by supplemental indentures, including a First
Supplemental Indenture, dated as of May 5, 1986.
Pursuant to such Supplemental Indenture, the Company
has issued a series of 4.50% Exchangeable Notes Due February 27,
1996 (the "Gannett MEDS"), the principal amount of which at
Maturity are mandatorily exchangeable into the common stock of
Gannett Co., Inc. In connection with such issuance, Margaret M.
Foran, Vice President and Assistant General Counsel of the
Company, is providing the attached opinion. Item 7. Financial
Statements, Pro Forma Financial Information and Exhibits
(c) Exhibits.
(4)(a) Form of Second Supplemental Indenture, to be
dated as of February 27, 1996, to Indenture,
dated as of August 15, 1982, as amended by
supplemental indentures, including a First
Supplemental Indenture, dated as of May 5,
1986, between J.P. Morgan & Co. Incorporated
and First Trust of New York, National
Association, as Trustee.
(5) Opinion of Margaret M. Foran, Vice President
and Assistant General Counsel of J.P. Morgan
& Co. Incorporated.
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
Date: February 23, 1996
J.P. MORGAN & CO. INCORPORATED
By: /s/Margaret M. Foran
----------------------------
Name: Margaret M. Foran
Title: Vice President and
Assistant General
Counsel
<PAGE>
INDEX TO EXHIBITS
(4)(a) Form of Second Supplemental Indenture, to be
dated as of February 27, 1996, to Indenture,
dated as of August 15, 1982, as amended by
supplemental indentures, including a First
Supplemental Indenture, dated as of May 5,
1986, between J.P. Morgan & Co. Incorporated
and First Trust of New York, National
Association, as Trustee.
(5) Opinion of Margaret M. Foran, Vice President
and Assistant General Counsel of J.P. Morgan
& Co. Incorporated.
=================================================================
J. P. MORGAN & CO. INCORPORATED
AND
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
as Trustee
---------------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of February 27, 1996
=================================================================
<PAGE>
SECOND SUPPLEMENTAL INDENTURE dated as of
February 27, 1996 (this "Supplemental Indenture"),
between J. P. MORGAN & CO. INCORPORATED, a
corporation duly organized and existing under the
laws of the State of Delaware (the "Company") and
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
successor to Chemical Bank (formerly Manufacturers
Hanover Trust Company), a national banking
association, as Trustee (hereinafter called the
"Trustee", which term shall include any successor
trustee appointed pursuant to Article Six of the
Basic Indenture hereinafter referred to).
WHEREAS the Company and the Trustee have entered into
an Indenture, dated as of August 15, 1982, as amended by
supplemental indentures, including a First Supplemental
Indenture, dated as of May 5, 1986 (as so amended, the "Basic
Indenture"), providing for the issuance from time to time of one
or more series of Securities (as such term is defined in the
Basic Indenture) evidencing unsecured indebtedness of the
Company;
WHEREAS the Company proposes to issue one or more
series of "Mandatorily Exchangeable Debt Securities sm" (each such
series of Securities being referred to herein as "MEDS sm"), the
principal amount at Maturity of which is mandatorily exchangeable
into securities or obligations (the "Exchange Issuer Securities")
of J.P. Morgan or other persons (collectively, the "Exchange
Issuers") or, at the option of the Company, payable in cash, in
either case at an Exchange Rate as described herein;
WHEREAS Sections 8.1(f) and (d) of the Basic Indenture
provide that without the consent of the Holders of Securities,
the Company, when authorized by a resolution of its Board of
Directors, and the Trustee may enter into one or more indentures
supplemental to the Basic Indenture (a) to establish the form or
terms of Securities of any series as permitted by Sections 2.1
and 2.3 thereof and (b) to cure any ambiguity or to correct or
supplement any provision contained in the Basic Indenture or any
supplemental indenture which may be defective or inconsistent
with any other provision of the Basic Indenture or any
supplemental indenture or to make such other provisions in regard
to matters or questions arising under the Basic Indenture or any
supplemental indenture as the Board of Directors may deem
necessary or desirable and which shall not materially and
adversely affect the interests of the Holders of the Securities;
WHEREAS the entry into this Supplemental Indenture by
the parties hereto is in all respects authorized by the
provisions of the Basic Indenture; and
WHEREAS all things necessary to make this Supplemental
Indenture a valid agreement of the Company in accordance with its
terms have been done.
<PAGE>
NOW, THEREFORE, for and in consideration of the
premises and purchase of the Securities by the Holders thereof,
it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders, without preference,
priority or distinction of any of the Securities over any of the
others by reason of difference in series or priority in time of
issuance, negotiation or maturity thereof, or otherwise except as
otherwise provided in the Basic Indenture or this Supplemental
Indenture, as follows:
ARTICLE I
Amendments to the Basic Indenture
The Basic Indenture is amended as set forth below:
SECTION 1.01. Amendment to Section 2.3. The Basic
Indenture is hereby amended by amending Section 2.3 of the Basic
Indenture by (i) adding as a new paragraph (17) the following:
"(17) the terms and conditions, if any, upon which the
Securities of such series may or shall be convertible into
or exchangeable or exercisable for or payable in, among
other things, other securities (whether or not issued by, or
the obligation of, the Company), instruments, contracts,
currencies, commodities or other forms of property, rights
or interests or any combination of the foregoing; and";
and by (ii) renumbering current paragraph (17) of Section 2.3 to
paragraph (18).
SECTION 1.02. Amendments to Authorize MEDS. The Basic
Indenture is hereby amended, solely with respect to one or more
series of Securities that consist of MEDS, as follows:
(a) By amending Section 1.1 to add new definitions
thereto, in the appropriate alphabetical sequence, as follows:
"Closing Price" has the meaning specified in Section
13.1.
"Conversion Premium", with respect to any issuance of
MEDS, shall be equal to the quotient of (i) the Threshold
Appreciation Price less the Initial price, divided by (ii)
the Initial Price.
"Exchange Issuer" means the Company or other persons
into whose securities or obligations the principal amount of
the MEDS are mandatorily exchangeable at Maturity, at the
option of the Company.
<PAGE>
"Exchange Issuer Securities" means the securities or
obligations of the Exchange Issuer into which the principal
amount of the MEDS are mandatorily exchangeable at Maturity,
at the option of the Company.
"Exchange Rate" has the meaning specified in Section
13.1.
"Extraordinary Cash Dividend" has the meaning specified
in Section 13.3.
"Initial Price", with respect to any issuance of MEDS,
shall have the meaning set forth in the applicable
Prospectus Supplement.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security (or
any installment of principal) becomes due and payable as
therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or
otherwise.
"Maturity Price" has the meaning specified in Section
13.1.
"MEDS" means any series of "Mandatorily Exchangeable
Debt SecuritiesSM" of the Company, the principal amount at
Maturity of which is mandatorily exchangeable into the
Exchange Issuer Securities of the Exchange Issuers at the
option of the Company.
"NYSE" has the meaning specified in Section 13.1.
"Prospectus Supplement" means any prospectus of the
Company, whether or not filed pursuant to Rule 424(b) of the
Securities Act of 1933, as amended, providing for the
issuance of a series of MEDS.
"Reorganization Event" has the meaning specified in
Section 13.3.
"Stated Maturity", when used with respect to any
Security, or any installment of principal thereof or
interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security,
or such installment of principal or interest, is due and
payable.
"Threshold Appreciation Price", with respect to any
issuance of MEDS, shall have the meaning set forth in the
applicable Prospectus Supplement.
"Trading Day" has the meaning specified in Section
13.1.
"Transaction Value" has the meaning specified in
Section 13.3.
<PAGE>
(b) By amending Section 6.1 of the Basic Indenture by
(i) deleting the word "and" at the end of clause (b); (ii)
replacing the period at the end of clause (c) with "; and "; and
(iii) adding as a new clause (d) the following:
"(d) the Trustee shall not at any time be under any
duty or responsibility to any Holder of a Security that may
or shall be convertible into or exchangeable or exercisable
for or payable in, among other things, other securities,
instruments, contracts, currencies, commodities or other
forms of property, rights or interests or any combination of
the foregoing, (A) to make or cause to be made any
adjustment of the amount of, among other things, the
securities, instruments, contracts, currencies, commodities
or other forms of property, rights or interests or any
combination of the foregoing that may be issued, transferred
or delivered to such Holder, or to determine whether any
facts exist which may require any such adjustment, or with
respect to the nature or extent of any such adjustment when
made, or with respect to any method employed in making the
same, (B) to account for the validity or value (or the kind
or amount) of, among other things, the securities,
instruments, contracts, currencies, commodities or other
forms of property, rights or interests or any combination of
the foregoing that may at any time be issued, transferred or
delivered to such Holder or (C) with respect to the failure
of the Company to issue, transfer or deliver, among other
things, any securities, instruments, contracts, currencies,
commodities or other forms of property, rights or interests
or any combination of the foregoing pursuant to the terms of
such Security."
(c) By amending Section 8.2 of the Basic Indenture by
deleting at the end of proviso (a) thereof, the words "without
the consent of the Holder of each Security so affected, or" and
inserting in place thereof the following: "or change the terms or
conditions of any Securities so as to adversely affect the terms
or conditions upon which such Securities are convertible into or
exchangeable or exercisable for or payable in, among other
things, other securities, instruments, contracts, currencies,
commodities or other forms of property, rights or interests or
any combination of the foregoing without, in each case, the
consent of the Holder of each Security so affected, or".
(d) By adding the following Article Thirteen:
"ARTICLE THIRTEEN
Exchange of MEDS
SECTION 13.1. Exchange at Maturity. At Maturity, the
principal amount payable with respect to each series of MEDS
shall be automatically and mandatorily exchanged into a
number of securities ("Exchange Issuer Securities") of the
Exchange Issuer at the applicable Exchange Rate (as defined
below). The "Exchange Rate" with respect to each series of
MEDS shall be equal to, subject to adjustment as a result of
certain dilution events relating to the Issuer Exchange
Securities as provided for in
<PAGE>
Section 13.3, (a) if the Maturity Price (as defined below)
is greater than or equal to the "Threshold Appreciation
Price" (as set forth in the applicable Prospectus
Supplement), a number of Exchange Issuer Securities equal to
a fraction, the numerator of which is one and the
denominator of which is the sum of one and the Conversion
Premium, (b) if the Maturity Price is less than the
Threshold Appreciation Price but is greater than the Initial
Price, a fractional Exchange Issuer Security per MEDS so
that the value of such fractional Exchange Issuer Security
(determined at the Maturity Price) is equal to the Initial
Price (such fractional share being calculated to the nearest
1/10,000th of a share or, if there is not a nearest
1/10,000th of a share, to the next highest 1/10,000th of a
share) and (c) if the Maturity Price is less than or equal
to the Initial Price, one Exchange Issuer Security per MEDS.
No fractional Exchange Issuer Securities will be issued at
Maturity as provided in Section 13.2. Notwithstanding the
foregoing, the Company may, at its option in lieu of
delivering Exchange Issuer Securities, deliver cash in an
amount (calculated to the nearest 1/100th of a dollar per
MEDS or, if there is not a nearest 1/100th of a dollar, then
to the next higher 1/100th of a dollar) equal to the value
of such number of Exchange Issuer Securities at the Maturity
Price. In determining the amount of cash deliverable in
exchange for the MEDS in lieu of Exchange Issuer Securities
pursuant to the immediately preceding sentence hereof, if
more than one MEDS shall be surrendered for exchange at one
time by the same Holder, the amount of cash which shall be
delivered upon exchange shall be computed on the basis of
the aggregate number of MEDS so surrendered at Maturity.
The "Maturity Price" is defined as the average Closing
Price per Exchange Issuer Security on the number of Trading
Days specified in the applicable Prospectus Supplement
immediately prior to, but not including, the Maturity date.
The "Closing Price" of any security on any date of
determination means the closing sale price (or, if no
closing price is reported, the last reported sale price) of
such security on the New York Stock Exchange (the "NYSE") on
such date or, if such security is not listed for trading on
the NYSE on any such date, as reported in the composite
transactions for the principal United States securities
exchange on which such security is so listed, or if such
security is not so listed on a United States national or
regional securities exchange, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation
System, or, if such security is not so reported, the last
quoted bid price for such security in the over-the-counter
market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not
available, the market value of such security on such date as
determined by a nationally recognized independent investment
banking firm retained for such purpose by the Company. A
"Trading Day" is defined as a day on which the security the
Closing Price of which is being determined (A) is not
suspended from trading on any national or regional
securities exchange or association or over-the-counter
market at the close of business and (B) has traded at least
once on the national or regional securities exchange or
association or over-the-counter market that is the primary
market for trading of such security.
<PAGE>
SECTION 13.2. No Fractional Securities. No fractional
securities or scrips representing fractional Exchange Issuer
Securities shall be issued or delivered upon the exchange at
Maturity of any MEDS. If more than one MEDS of any series
shall be surrendered for exchange at one time by the same
Holder, the number of full Exchange Issuer Securities which
shall be delivered upon exchange, in whole or in part, as
the case may be, shall be computed on the basis of the
aggregate number of MEDS so surrendered at Maturity. Instead
of any fractional Exchange Issuer Security which would
otherwise be deliverable upon exchange of any MEDS at
Maturity, the Company, through any applicable paying agent,
shall make a cash payment in respect of such fractional
interest in an amount equal to the value of such fractional
Exchange Issuer Security at the Maturity Price. The Company
shall, upon exchange of any MEDS, provide cash to any
applicable paying agent in an amount equal to the cash
payable with respect to any fractional Exchange Issuer
Securities deliverable upon exchange of such MEDS in lieu of
such fractional Exchange Issuer Securities.
SECTION 13.3. Adjustment of Exchange Rate. (a)
Adjustment for Distributions, Reclassifications, etc. The
Exchange Rate shall be subject to adjustment from time to
time as follows:
(i) If an Exchange Issuer shall:
(A) pay a dividend or make a distribution
with respect to the Exchange Issuer Securities in
such securities;
(B) subdivide or split the outstanding
Exchange Issuer Securities into a greater number
of securities;
(C) combine the outstanding Exchange Issuer
Securities into a smaller number of securities; or
(D) issue by reclassification of Exchange
Issuer Securities any other securities of the
Exchange Issuer;
then, in any such event, the Exchange Rate in effect
immediately prior to such event shall each be adjusted
so that the holder of any MEDS of the relevant series
shall thereafter be entitled to receive, upon mandatory
exchange of the principal amount of such MEDS at
Maturity, as set forth in Section 13.1, the number of
Exchange Issuer Securities which such holder would have
owned or been entitled to receive immediately following
any event described above had such MEDS been exchanged
immediately prior to such event or any record date with
respect thereto. Each such adjustment shall become
effective at the opening of business on the Business
Day next following the record date for determination of
holders of Exchange Issuer Securities entitled to
receive such dividend or distribution in the case of a
dividend or distribution and shall
<PAGE>
become effective immediately after the effective date
in the case of a subdivision, split, combination or
reclassification. Each such adjustment shall be made
successively.
(ii) If an Exchange Issuer shall, after the date
hereof, issue rights or warrants to all holders of
Exchange Issuer Securities entitling them to subscribe
for or purchase Exchange Issuer Securities (other than
rights to purchase Exchange Issuer Securities pursuant
to a plan for the reinvestment of dividends or
interest) at a price per security less than the market
price of Exchange Issuer Securities (determined for
purposes of this clause (ii) as the average Closing
Price per share of such Exchange Issuer Securities on
the number of Trading Days specified in the applicable
Prospectus Supplement immediately prior to the date
such rights or warrants are issued), then in each case
the Exchange Rate for the relevant series of MEDS shall
be adjusted by multiplying the Exchange Rate in effect
immediately prior to the date of issuance of such
rights or warrants by a fraction, the numerator of
which shall be the number of Exchange Issuer Securities
outstanding on the date of issuance of such rights or
warrants, immediately prior to such issuance, plus the
number of additional Exchange Issuer Securities offered
for subscription or purchase pursuant to such rights or
warrants, and the denominator of which shall be the
number of Exchange Issuer Securities outstanding on the
date of issuance of such rights or warrants,
immediately prior to such issuance, plus the number of
additional Exchange Issuer Securities which the
aggregate offering price of the total number of
Exchange Issuer Securities so offered for subscription
or purchase pursuant to such rights or warrants would
purchase at such market price (calculated as the
average Closing Price per security of Exchange Issuer
Securities on the number of Trading Days specified in
the applicable Prospectus Supplement immediately prior
to the date such rights or warrants are issued), which
shall be determined by multiplying such total number of
securities by the exercise price of such rights or
warrants and dividing the product so obtained by such
market price. Such adjustment shall become effective at
the opening of business on the Business Day next
following the record date for the determination of
stockholders entitled to received such rights or
warrants. To the extent that Exchange Issuer Securities
are not delivered after the expiration of such rights
or warrants, the Exchange Rate for the relevant series
of MEDS shall be readjusted to the Exchange Rate which
would then be in effect had such adjustments for the
issuance of such rights or warrants been made upon the
basis of delivery of only the number of Exchange Issuer
Securities actually delivered. Each such adjustment
shall be made successively.
(iii) If an Exchange Issuer shall pay a dividend
or make a distribution to all holders of Exchange
Issuer Securities of evidences of its indebtedness or
other assets (excluding any dividends or distributions
referred to in subparagraph (i) above and any cash
dividends that do not constitute
<PAGE>
Extraordinary Cash Dividends (as defined in clause (vi)
below)) or shall issue to all holders of Exchange
Issuer Securities rights or warrants to subscribe for
or purchase any of its securities (other than those
referred to in subparagraph (ii) above), then in each
such case, the Exchange Rate for the relevant series of
MEDS shall be adjusted by multiplying the Exchange Rate
in effect on the record date mentioned below by a
fraction, the numerator of which shall be the market
price per Exchange Issuer Security on the record date
for the determination of securityholders entitled to
receive such dividend or distribution (such market
price being the average Closing Price per security of
the Exchange Issuer Securities on the 20 Trading Days
immediately prior to such record date), and the
denominator of which shall be such market price per
Exchange Issuer Security less the fair market value (as
determined by a nationally recognized independent
investment banking firm retained for such purpose by
the Company) as of such record date of the portion of
the assets or evidences of indebtedness so distributed
or of such subscription rights or warrants applicable
to one Exchange Issuer Security. Each such adjustment
shall become effective on the opening of business on
the Business Day next following the record date for the
determination of securityholders entitled to receive
such dividend or distribution. Each such adjustment
shall be made successively.
(iv) Any Exchange Issuer Securities issuable in
payment of a dividend shall be deemed to have been
issued immediately prior to the close of business on
the record date for such dividend for purposes of
calculating the number of outstanding Exchange Issuer
Securities under subparagraph (ii) above.
(v) All adjustments to the Exchange Rate shall be
calculated to the nearest 1/10,000th of an Exchange
Issuer Security (or if there is not a nearest
1/10,000th of a security, to the next lower 1/10,000th
of a security). No adjustment in the Exchange Rate
shall be required unless such adjustment would require
an increase or decrease of at least one percent
therein; provided, however, that any adjustments which
by reason of this subparagraph are not required to be
made shall be carried forward and taken into account in
any subsequent adjustment. If an adjustment is made to
the Exchange Rate pursuant to subparagraph (i), (ii) or
(iii) of this Section 13.3(a), an adjustment shall also
be made to the Maturity Price solely to determine which
of paragraphs (a), (b) or (c) of the definition of
Exchange Rate in Section 13.1 will apply at Maturity.
The required adjustment shall be determined by
multiplying the Maturity Price by the number determined
under subparagraph (i), (ii) or (iii) by which the then
existing Exchange Rate was multiplied to adjust such
rate. This subparagraph (v) shall be so used to adjust
the definition of Maturity Price only as such term is
used for the first time in each of subparagraphs (a),
(b) and (c) of the definition of Exchange Rate.
<PAGE>
(vi) For purposes of the foregoing, the term
"Extraordinary Cash Dividend" shall mean, with respect
to any one-year period, all cash dividends with respect
to the Exchange Issuer Securities during such period to
the extent such dividends exceed on a per security
basis 10% of the average of the Closing Prices per
security of the Exchange Issuer Securities over such
one-year period, and for purposes of applying the
formula set forth in clause (iii) above, the fair
market value of such dividends being calculated
pursuant to such clause (iii) shall be equal to (x) the
aggregate amount of all such cash dividends occurring
in such period minus (y) the aggregate amount of such
other cash dividends occurring in such period for which
a prior adjustment in the Exchange Rate was previously
made under this Section 13.3(a). In making the
determinations required by the foregoing sentence, the
amount of cash dividends paid on a per security basis
shall be appropriately adjusted to reflect the
occurrence during such period of any event described in
Section 13.3(a).
(b) Adjustment for Consolidation, Merger or Other
Reorganization Event. In the event of (i) any consolidation
or merger of an Exchange Issuer, or any surviving entity or
subsequent surviving entity of an Exchange Issuer (an
"Exchange Issuer Successor"), with or into another entity
(other than a merger or consolidation in which such Exchange
Issuer is the continuing corporation and in which the
Exchange Issuer Securities outstanding immediately prior to
the merger or consolidation are not exchanged for cash,
securities or other property of such Exchange Issuer or
another corporation), (ii) any sale, transfer, lease or
conveyance to another corporation of the property of such
Exchange Issuer or any Exchange Issuer Successor as an
entirety or substantially as an entirety, (iii) any
statutory exchange of securities of such Exchange Issuer or
any Exchange Issuer Successor with another corporation
(other than in connection with a merger or acquisition) or
(iv) any liquidation, dissolution or winding up of such
Exchange Issuer or any Exchange Issuer Successor (any such
event, a "Reorganization Event"), the Exchange Rate used to
determine the amount payable upon exchange at Maturity for
each MEDS of the relevant series will be adjusted to provide
that each holder of MEDS of such series will receive at
Maturity cash in an amount equal to (a) if the Transaction
Value (as defined below) is greater than or equal to the
Threshold Appreciation Price, the product of (I) a fraction,
the numerator of which is one and the denominator of which
is the sum of one and the Conversion Premium and (II) the
Transaction Value, (b) if the Transaction Value is less than
the Threshold Appreciation Price but greater than the
Initial Price, the Initial Price and (c) if the Transaction
Value is less than or equal to the Initial Price, the
Transaction Value. "Transaction Value" means (x) for any
cash received in any such Reorganization Event, the amount
of cash received per Exchange Issuer Security, (y) for any
property other than cash or securities received in any such
Reorganization Event, an amount equal to the market value at
Maturity of such property received per Exchange Issuer
Security as determined by a nationally recognized
independent investment banking firm retained for such
purpose by the Company and (z) for any
<PAGE>
securities received in any such Reorganization Event, an
amount equal to the average Closing Price per security of
such securities on the 20 Trading Days immediately prior to
Maturity, multiplied by the number of such securities
received for each Exchange Issuer Security. Notwithstanding
the foregoing, in lieu of delivering cash as provided above,
the Company may at its option deliver an equivalent value of
securities or other property received in such Reorganization
Event, determined in accordance with clause (y) or (z)
above, as applicable. The kind and amount of securities into
which the MEDS of the relevant series shall be exchangeable
after consummation of such transaction shall be subject to
adjustment as described in paragraph (a) above following the
date of consummation of such transaction.
SECTION 13.4. Notice of Adjustments and Certain Other
Events. (a) Whenever the Exchange Rate for any series of
MEDS is adjusted as herein provided, the Company shall:
(i) forthwith compute the adjusted Exchange Rate
in accordance with Section 13.3 and prepare a
certificate signed by an officer of the Company setting
forth the adjusted Exchange Rate, the method of
calculation thereof in reasonable detail, and the facts
requiring such adjustment and upon which such
adjustment is based, which certificate shall be
conclusive, final and binding evidence of the
correctness of the adjustment, and file such
certificate forthwith with the Trustee; and
(ii) within 10 Business Days following the
occurrence of an event that permits or requires an
adjustment to the Exchange Rate pursuant to Section
13.3 (or if the Company is not aware of such
occurrence, as soon as practicable after becoming so
aware), provide written notice to the Trustee and to
the Holders of the outstanding MEDS of the relevant
series of the occurrence of such event and a statement
in reasonable detail setting forth the method by which
the adjustment to the Exchange Rate was determined and
setting forth the revised Exchange Rate per MEDS of
such series.
(b) In case at any time while any of the MEDS of
any series are outstanding the Company receives notice that:
(i) an Exchange Issuer shall declare a dividend
(or any other distribution) on or in respect of the
Exchange Issuer Securities to which Section 13.3(a)(i)
or (ii) shall apply (other than any cash dividends and
distributions, if any, paid from time to time by such
Exchange Issuer that do not constitute Extraordinary
Cash Dividends);
(ii) an Exchange Issuer shall authorize the
issuance to all holders of Exchange Issuer Securities
of rights or warrants to subscribe for or purchase
Exchange Issuer Securities or of any other subscription
rights or warrants;
<PAGE>
(iii) there shall occur any conversion or
reclassification of Exchange Issuer Securities (other
than a subdivision or combination of outstanding shares
of such Exchange Issuer Securities) or any
consolidation, merger or reorganization to which such
Exchange Issuer is a party and for which approval of
any securityholders of such Exchange Issuer is
required, or the sale or transfer of all or
substantially all of the assets of an Exchange Issuer;
or
(iv) there shall occur the voluntary or
involuntary dissolution, liquidation or winding up of
an Exchange Issuer;
then the Company shall promptly cause to be delivered to the
Trustee and any applicable paying agent and filed at the
office or agency maintained for the purpose of exchanging
the MEDS of the relevant series at Maturity in the Borough
of Manhattan, in The City of New York by the Trustee (or any
applicable paying agent), and shall promptly cause to be
mailed to the Holders of MEDS of the relevant series at
their last addresses as they shall appear upon the
registration books of the Trustee (or any applicable note
registrar), at least 10 days before the date hereinafter
specified (or the earlier of the dates hereinafter
specified, in the event that more than one is specified), a
notice 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 the Exchange Issuer
Securities of record to be entitled to such dividend,
distribution or grant of rights or warrants are to be
determined, or (y) the date, if known by the Company, on
which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected
to become effective.
(c) On or prior to seven Business Days preceding
the Stated Maturity of the MEDS of any series, the Company
will provide notice to the Holders of record of the MEDS of
such series and to the Trustee and will provide such other
notice as specified in the applicable Prospectus Supplement
stating whether the Company has irrevocably elected to
deliver Exchange Issuer Securities or cash (or any other
property or securities that may be delivered pursuant to
Section 13.3(b)) upon the mandatory exchange of the
principal amount of the MEDS of such series in accordance
with Section 13.1.
SECTION 13.5. Shares Free and Clear. The Company
hereby warrants that upon exchange of MEDS at Maturity
pursuant to this Indenture, the Holder of MEDS shall receive
all rights held by the Company in the Exchange Issuer
Securities for which such MEDS are at such time exchangeable
pursuant to this Indenture, free and clear of any and all
liens, claims, charges and encumbrances other than any
liens, claims, charges and encumbrances which may have been
placed on any Exchange Issuer Securities by the prior owner
thereof, prior to the time such Exchange Issuer Securities
were acquired by the Company. In addition, the
<PAGE>
Company further warrants that any Exchange Issuer Securities
so delivered in exchange for MEDS hereunder shall be free of
any transfer restrictions under United States laws (other
than such as are solely attributable to any Holder's status
as an affiliate of such Exchange Issuer).
SECTION 13.6. Cancelation of Security. Upon
receipt by the Trustee of MEDS delivered to it for exchange
under this Article Thirteen, the Trustee shall cancel and
dispose of the same as provided in Section 2.10.
(e) By amending the table of contents of the Basic
Indenture to reflect the additions described in sections (a) and
(d) of this Section 1.02.
ARTICLE II
Miscellaneous
SECTION 2.01. Single Indenture. The Basic Indenture, as
supplemented and amended by this Supplemental Indenture and all
other indentures supplemental thereto, is in all respects
ratified and confirmed, and the Basic Indenture, this
Supplemental Indenture and all indentures supplemental thereto
shall be read, taken and construed as one and the same
instrument.
SECTION 2.02. Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in this Supplemental
Indenture by any of the provisions of the Trust Indenture Act,
such required provision shall control.
SECTION 2.03. Successors and Assigns. All covenants and
agreements in this Supplemental Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 2.04. Severability. In case any provision in
this Supplemental Indenture or in the Securities of any series
shall be invalid, illegal or unenforceable, the
<PAGE>
validity, legality and enforceability of the remaining provisions
(or of the other series of Securities) shall not in any way be
affected or impaired thereby.
SECTION 2.05. Third Party Rights. Nothing in this
Supplemental Indenture, expressed or implied, shall give to any
Person, other than the parties hereto and their successors
hereunder, and the Holders of each series of Securities any
benefit or any legal or equitable right, remedy or claim under
this Supplemental Indenture.
SECTION 2.06. Applicable Law. This Supplemental
Indenture and each Security of any series shall be deemed to be a
contract made under the laws of the State of New York and this
Supplemental Indenture and each such Security shall be governed
by and construed in accordance with the laws of the State of New
York.
SECTION 2.07. Defined Terms. All terms used in this
Supplemental Indenture not otherwise defined herein that are
defined in the Basic Indenture shall have the meanings set forth
therein.
SECTION 2.08. Counterparts. This Supplemental Indenture
may be executed in any number of counterparts, each of which
shall be an original; but such counterparts shall together
constitute but one and the same instrument.
SECTION 2.09. Responsibility of Company. The recitals
contained herein and in the Securities, except the certificate of
authentication of the Trustee thereon, shall be taken as
statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of the Basic
Indenture, this Supplemental Indenture or of the Securities and
shall not be accountable for the use or application by the
Company of the Securities or the proceeds thereof.
SECTION 2.10. Headings. The headings used herein are
for convenience of reference only, are not part of this
Supplemental Indenture and are not to affect the construction of,
or to be taken into consideration in interpreting, this
Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of
the day and year first above written.
J. P. MORGAN & CO. INCORPORATED,
by /s/ Margaret M. Foran
-----------------------------
Name: Margaret M. Foran
<PAGE>
Title: Vice President and Assistant General
Counsel
[Seal]
Attest:
/s/ Marion I. Pearson
- ------------------------------
Name: Marion I. Pearson
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as Trustee,
by /s/ David Leverich
-------------------------------
Name: David Leverich
Title: Vice President
[Seal]
Attest:
/s/ Joanne E. Ilse
- ------------------------------
Name: Joanne E. Ilse
<PAGE>
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On the 27th day of February 1996, before me personally
came Margaret M. Foran, to me known, who, being by me duly sworn,
did depose and say that he/she is a Vice President and Assistant
General Counsel of J. P. MORGAN & CO. INCORPORATED, one of the
corporations described in and which executed the foregoing
instrument; that he/she knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that
it was so affixed by authority of the Board of Directors of said
corporation, and that he/she signed his/her name thereto by like
authority.
/s/ Marion I. Pearson
---------------------
Notary Public
<PAGE>
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On the 27th day of February 1996, before me personally
came David Leverich , to me known, who, being by me duly sworn,
did depose and say that he/she is a Vice President of FIRST TRUST
OF NEW YORK, NATIONAL ASSOCIATION, one of the corporations
described in and which executed the foregoing instrument; that
he/she knows the seal of said corporation; that the seal affixed
to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and
that he/she signed his/her name thereto by like authority.
/s/ Joanne E. Ilse
----------------------
Notary Public
