As filed with the Securities and Exchange Commission on March 15, 1996
Registration No. 333-________________
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
---------------
THIOKOL CORPORATION
(Exact name of registrant on Form S-3 as specified in its charter)
DELAWARE 2475 Washington Boulevard 36-2678716
(State or Other Jurisdiction Ogden, Utah 84401 (I.R.S. Employer
of Incorporation) (801) 629-2000 Identification Number)
(Address, including ZIP code, and telephone number, including area code, of
registrant's principal executive offices)
---------------
Richard L. Corbin
Senior Vice President and Chief Financial Officer
Thiokol Corporation
2475 Washington Boulevard
Ogden, Utah 84401
(801) 629-2000
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
---------------
Copies to:
SCOTT R. HABER
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111-2562
(415) 391-0600
---------------
Approximate date of commencement of proposed sale to the public: As
soon as practicable after this Registration Statement becomes effective.
---------------
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check the
following box.
X If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box.
X If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Amount of
Title of Each Class of Aggregate Offering Registration
Securities to be Registered Price(1) (2) Fee
- ----------------------------------------------- ------------------ --------------
Debt Securities................................
Debt Warrants..................................
Equity Warrants................................
Preferred Stock, $1.00 par value...............
Common Stock, $1.00 par value (3)..............
<S> <C> <C>
Total.................................... $300,000,000 $103,449
=============================================== ================== ==============
</TABLE>
(1) Estimated solely for purposes of calculating the registration fee,
which is calculated in accordance with Rule 457(o).
(2) Not specified as to each class of securities to be registered
hereunder pursuant to General Instruction II(D) to Form S-3 under the
Securities Act of 1933.
(3) Each share of Common Stock includes one Preferred Share Purchase
Right under the Rights Agreement dated as of January 26, 1989, as
amended, between the Registrant and The First National Bank of
Chicago.
----------
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF
ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED March 15, 1996
Thiokol Corporation
Debt Securities
Warrants to Purchase Debt Securities
Warrants to Purchase Equity Securities
Preferred Stock
Common Stock
--------------------
Thiokol Corporation (the "Company), directly or through agents,
dealers, or underwriters designated from time to time, may offer, issue and
sell, together or separately, up to $300,000,000 in the aggregate of (a)
unsecured debt securities (the "Debt Securities") of the Company, in one or
more series, which may be either senior debt securities (the "Senior Debt
Securities"), senior subordinated debt securities (the "Senior Subordinated
Debt Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), (b) shares of preferred stock of the Company, par value $1.00
per share (the "Preferred Stock"), in one or more series, (c) shares of
common stock of the Company, par value $1.00 per share (the "Common Stock"),
(d) warrants to purchase Debt Securities (the "Debt Warrants") and (e)
warrants to purchase Preferred Stock or Common Stock (the "Equity Warrants"
and together with the Debt Warrants, the "Warrants"), or any combination of
the foregoing, either individually or as units consisting of one or more of
the foregoing, each on terms to be determined at the time of sale. The Debt
Securities may be issued as exchangeable and/or convertible Debt Securities
exchangeable for or convertible into shares of Common Stock or Preferred
Stock. The Preferred Stock may also be exchangeable for and/or convertible
into shares of Common Stock or another series of Preferred Stock. The Debt
Securities, the Preferred Stock, the Common Stock and the Warrants are
collectively referred to herein as the "Securities." When a particular series
of Securities is offered, a supplement to this Prospectus (each a "Prospectus
Supplement") will be delivered with this Prospectus. The Prospectus
Supplement will set forth the terms of the offering and sale of the offered
Securities.
Except as described more fully herein or as set forth in the
Prospectus Supplement relating to any offered Debt Securities, the Indenture
will not provide holders of Debt Securities protection in the event of a
highly-leveraged transaction, reorganization, restructuring, merger or
similar transaction involving the Company which could adversely affect
holders of Debt Securities. See "Description of Debt Securities
- -Consolidation, Merger and Sale of Assets."
The Company's Common Stock is traded on the New York Stock Exchange
under the symbol TKC. On March 14, 1996, the last reported sale price of the
Common Stock on the New York Stock Exchange was $43.125 per share. The
Company has not yet determined whether any of the Debt Securities, Preferred
Stock or Warrants offered hereby will be listed on any exchange or
over-the-counter market. If the Company decides to seek listing of any such
Securities, the Prospectus Supplement relating thereto will disclose such
exchange or market.
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------------
The Securities may be sold directly by the Company, through agents
designated from time to time or to or through underwriters or dealers. The
Company reserves the sole right to accept, and together with its agents, from
time to time, to reject in whole or in part any proposed purchase of
Securities to be made directly or through agents. See "Plan of Distribution."
If any such agents or underwriters are involved in the sale of any
Securities, the names of such agents or underwriters and any applicable fees,
commissions or discounts will be set forth in the applicable Prospectus
Supplement.
This Prospectus may not be used to consummate sales of Securities
unless accompanied by the applicable Prospectus Supplement.
The date of this Prospectus is ___________________, 1996.
<PAGE>
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE
SECURITIES AT LEVELS ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN
MARKET. SUCH STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission
(the "Commission") a Registration Statement on Form S-3 (together with all
amendments and exhibits thereto, the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to
the Securities offered hereby. This Prospectus does not contain all of the
information set forth in the Registration Statement, part of which has been
omitted in accordance with the rules and regulations of the Commission. For
further information about the Company and the Securities offered hereby,
reference is made to the Registration Statement, including the exhibits filed
as a part thereof and otherwise incorporated therein. Statements made in this
Prospectus as to the contents of any document referred to herein are not
necessarily complete, and in each instance reference is made to such document
for a more complete description, and each such statement is qualified in its
entirety by such reference.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files periodic reports, proxy statements and other
information with the Commission. The Registration Statement, including the
exhibits thereto, as well as such reports and other information filed by the
Company with the Commission, can be inspected, without charge, and copied at
the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Room 1024, Washington D.C., 20549; 7 World Trade Center, New
York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such materials can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington,
D.C. 20549 at prescribed rates. Reports and other information concerning the
Company can also be inspected at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York 10005.
INFORMATION INCORPORATED BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are incorporated by reference in this
Prospectus: (1) the Company's Annual Report on Form 10-K for the year ended
June 30, 1995, (2) the Company's Proxy Statement for the 1995 Annual Meeting
of Stockholders, (3) the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1995, (4) the Company's Quarterly Report on Form
10-Q for the quarter ended December 31, 1995, (5) the description of the
Common Stock contained in the Company's Registration Statement on Form 8-A
filed on July 3, 1989, (7) the description of the Preferred Stock Purchase
Rights contained in the Company's Registration Statement on Form 8-A filed
the Company's reports on Form 8-K dated December 14, 1995 and Form 8-KA dated
February 8, 1996, (6) on February 8, 1989 and (8) all other documents
subsequently filed pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this Prospectus and before the termination of
the offering, which shall be deemed to be a part hereof from the date of
filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is incorporated
or deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
<PAGE>
This Prospectus may not be used to consummate sales of offered
securities unless accompanied by a Prospectus Supplement. The delivery of
this Prospectus together with a Prospectus Supplement relating to particular
offered Securities in any jurisdiction shall not constitute an offer in the
jurisdiction of any other securities covered by this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom this Prospectus is delivered, upon request, a copy
of any documents incorporated into this Prospectus by reference (other than
exhibits incorporated by reference into such document). Requests for
documents should be submitted to the Corporate Secretary, Thiokol
Corporation, 2475 Washington Boulevard, Ogden, Utah 84401, (telephone (801)
629-2000). The information relating to the Company contained in this
Prospectus does not purport to be comprehensive and should be read together
with the information contained in the documents incorporated or deemed to be
incorporated by reference herein.
THE COMPANY
Thiokol Corporation (the "Company") is primarily a manufacturer of
solid rocket propulsion systems for the aerospace and defense markets. The
Company is also a manufacturer of specialty fastening systems for aerospace
and industrial applications.
Thiokol Corporation was founded in 1930 and operated in various
corporate forms until merged in 1982 with Morton-Norwich Products, Inc., and
operated thereafter as a division of Morton Thiokol, Inc. Since the 1989
spin-off of its specialty chemicals, salt and automotive-restraint businesses
to a newly-formed publicly-traded company, Morton International, Inc., the
Company's aerospace and defense business has operated independently as
Thiokol Corporation.
In 1991, the Company acquired the aerospace and industrial fastener
business of Huck Manufacturing Company. The Company operates this fastening
systems segment of the business through a wholly-owned subsidiary, Huck
International, Inc. In January 1994, Huck acquired the threaded lock bolts,
locknuts and related product line assets of the Deutsch Manufacturing Company
and in 1995 acquired the assets of Automatic Fastener Corp., a small
manufacturer of fasteners primarily for the automotive markets.
In December 1995, the Company and the Carlyle Group formed a jointly
owned acquisition company, of which the Company owns 49% and the Carlyle
Group owns 51%, to acquire Howmet Corporation and the Cercast Group of
companies, manufacturers of investment castings primarily for aircraft and
industrial gas turbine applications. The Company has an option exercisable
for a three-year period beginning in December 1998 to acquire the Carlyle
Group's equity ownership, which upon exercise will make Howmet Corporation
and the Cercast Group of companies wholly-owned subsidiaries of the Company.
The Company's propulsion-systems segment consists of propulsion
systems, gas generators, flare and ordnance products and metal and composite
components. It also includes services, principally under contracts and
subcontracts with the National Aeronautics and Space Administration (NASA),
the Department of Defense, and aerospace prime contractors for space, defense
and commercial applications. The Company's fastening systems segment consists
of threaded and non-threaded lock bolts, locknuts, blind rivets, and
product-installation tooling. All of the Company's propulsion and fastening
systems activities are conducted directly by the Company or by its
wholly-owned domestic and foreign subsidiaries.
The Company's principal offices are located at 2475 Washington
Boulevard, Ogden, Utah 84401, and its telephone number is (801) 629-2000.
<PAGE>
USE OF PROCEEDS
The Company currently has no specific plans for the use of the net
proceeds from the sale of Securities offered hereby. However, the Company
currently anticipates that any such net proceeds would be used for general
corporate purposes, which may include but are not limited to working capital,
capital expenditures and acquisitions. When a particular series of Securities
is offered, the Prospectus Supplement relating thereto will set forth the
Company's intended use for the net proceeds received from the sale of such
Securities. Pending the application of the net proceeds, the Company expects
to invest such proceeds in short-term, interest-bearing instruments or other
investment-grade securities.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges
of the Company for the periods indicated.
<TABLE>
<CAPTION>
Quarter Ended Fiscal Year Ended June 30,
---------------- -------------------------------
December 31,1995 1995 1994 1993 1992 1991
---------------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges 27.6 7.7 7.1 4.8 5.0 4.8
Ratio of earnings to fixed charges 27.6 7.7 7.1 4.8 5.0 4.8
and preferred stock dividends
</TABLE>
For the purpose of calculating the ratio of earnings to fixed charges
and the ratio of earnings to fixed charges and preferred stock dividends,
earnings consist of income before income taxes and fixed charges (exclusive
of preferred stock dividends). For the purpose of calculating both ratios,
fixed charges include interest expense, capitalized interest and that portion
of rentals representative of an interest factor. Because the Company did not
distribute any preferred stock dividends during fiscal years 1991-1995 or
during the quarter ended December 31, 1995, the two above ratios are
identical.
<PAGE>
GENERAL DESCRIPTION OF SECURITIES
The Company directly or through agents, dealers, or underwriters
designated from time to time, may offer, issue and sell, together or
separately, up to $300,000,000 in the aggregate of (a) unsecured debt
securities (the "Debt Securities") of the Company, in one or more series,
which may be either senior debt securities (the "Senior Debt Securities"),
senior subordinated debt securities (the "Senior Subordinated Debt
Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), (b) shares of preferred stock of the Company, par value $1.00
per share (the "Preferred Stock"), in one or more series, (c) shares of
common stock of the Company, par value $1.00 per share (the "Common Stock"),
(d) warrants to purchase Debt Securities (the "Debt Warrants") and (e)
warrants to purchase Preferred Stock or Common Stock (the "Equity Warrants"
and together with the Debt Warrants, the "Warrants"), or any combination of
the foregoing, either individually or as units consisting of one or more of
the foregoing, each on terms to be determined at the time of sale. The Debt
Securities may be issued as exchangeable and/or convertible Debt Securities
exchangeable for or convertible into shares of Common Stock or Preferred
Stock. The Preferred Stock may also be exchangeable for and/or convertible
into shares of Common Stock or another series of Preferred Stock. The Debt
Securities, the Preferred Stock, the Common Stock and the Warrants are
collectively referred to herein as the "Securities." When a particular series
of Securities is offered, a supplement to this Prospectus (each a "Prospectus
Supplement") will be delivered with this Prospectus. The Prospectus
Supplement will set forth the terms of the offering and sale of the offered
Securities.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and
provisions of the Debt Securities to which any Prospectus Supplement may
relate. The particular terms of the Debt Securities offered by any Prospectus
Supplement and the extent, if any, to which such general provisions do not
apply to the Debt Securities so offered will be described in the Prospectus
Supplement relating to such Debt Securities.
Debt Securities may be issued from time to time in series under an
indenture, and one or more indentures supplemental thereto (collectively, the
"Indenture"), between the Company and a trustee to be identified in the
applicable Prospectus Supplement (the "Trustee"). The terms of the Debt
Securities will include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (the "TIA") as
in effect on the date of the Indenture. The Debt Securities will be subject
to all such terms, and potential purchasers of the Debt Securities are
referred to the Indenture and the TIA for a statement thereof. The following
summary of certain provisions of the Indenture does not purport to be
complete and is qualified in its entirety by reference to the Indenture,
including the definitions therein of certain terms used below. A copy of the
proposed form of Indenture has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. As used under this caption,
unless the context otherwise requires, "Offered Debt Securities" shall mean
the Debt Securities offered by this Prospectus and the accompanying
Prospectus Supplement.
General
- -------
The Indenture will provide for the issuance of Debt Securities in
series and will not limit the principal amount of Debt Securities which may
be issued thereunder. In addition, except as may be provided in the
Prospectus Supplement relating to such Debt Securities, the Indenture will
not limit the amount of additional indebtedness the Company may incur.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the following terms of the series of Offered Debt Securities in
respect of which this Prospectus is being delivered: (1) the title of the
Offered Debt Securities; (2) whether the Offered Debt Securities are Senior
Debt Securities, Senior Subordinated Debt Securities or Subordinated Debt
Securities or any combination thereof; (3) any
<PAGE>
limit upon the aggregate principal amount of the Offered Debt Securities; (4)
the date or dates on which the principal of the Offered Debt Securities is
payable; (5) the rate or rates at which the Offered Debt Securities will bear
interest, if any, or the manner in which such rate or rates are determined;
(6) the date or dates from which any such interest will accrue, the interest
payment dates on which any such interest on the Offered Debt Securities will
be payable and the record dates for the determination of holders to whom such
interest is payable; (7) the place or places where the principal of and any
interest on the Offered Debt Securities will be payable; (8) the obligation
of the Company, if any, to redeem, purchase or repay the Offered Debt
Securities in whole or in part pursuant to any sinking fund or analogous
provisions or at the option of the holders and the price or prices at which
and the period or periods within which and the terms and conditions upon
which the Offered Debt Securities shall be redeemed, purchased or repaid
pursuant to such obligation; (9) the denominations in which any Offered Debt
Securities will be issuable, if other than denominations of U.S. $1,000 and
any integral multiple thereof; (10) if other than the principal amount
thereof, the portion of the principal amount of the Offered Debt Securities
of the series which will be payable upon declaration of the acceleration of
the maturity thereof; (11) any addition to or change in the covenants which
apply to the Offered Debt Securities; (12) any Events of Default with respect
to the Offered Debt Securities, if not otherwise set forth under "Events of
Default"; (13) whether the Offered Debt Securities will be issued in whole or
in part in global form, the terms and conditions, if any, upon which such
global Offered Debt Securities may be exchanged in whole or in part for other
individual securities, and the depositary for the Offered Debt Securities;
(14) the terms and conditions, if any, upon which the Offered Debt Securities
shall be exchanged for or converted into other securities or property; and
(15) any other terms of the Offered Debt Securities which terms shall not be
inconsistent with the provisions of the Indenture.
Debt Securities may be issued at a discount from their principal
amount ("Original Issue Discount Securities"). Federal income tax
considerations and other special considerations applicable to any such
Original Issue Discount Securities will be described in the applicable
Prospectus Supplement.
Debt Securities may be issued in bearer form, with or without
coupons. Federal income tax considerations and other special considerations
applicable to bearer securities will be described in the applicable
Prospectus Supplement.
Unless otherwise indicated in this Prospectus or a Prospectus
Supplement, the Debt Securities will not have the benefit of any covenants
that limit or restrict the Company's business or operations, the pledging of
the Company's assets or the incurrence of indebtedness by the Company.
Status of Debt Securities
- -------------------------
The Senior Debt Securities will be unsubordinated obligations of the
Company and will rank pari passu with all other unsecured and unsubordinated
indebtedness of the Company.
The obligations of the Company pursuant to Senior Subordinated Debt
Securities will be subordinate in right of payment, to the extent and in the
manner set forth in the Indenture, to all Senior Indebtedness of the Company.
Except to the extent set forth in the Prospectus Supplement, "Senior
Indebtedness" of the Company is defined to mean the principal of, and
premium, if any, and any interest (including interest accruing subsequent to
the commencement of any proceeding for the bankruptcy or reorganization of
the Company under any applicable bankruptcy, insolvency or similar law now or
hereafter in effect) on (a) all indebtedness of the Company whether
heretofore or hereafter incurred (i) for borrowed money or (ii) in connection
with the acquisition by the Company or a subsidiary of assets other than in
the ordinary course of business, for the payment of which the Company is
liable directly or indirectly by guarantee, letter of credit, obligation to
purchase or acquire or otherwise, or the payment of which is secured by a
lien, charge or encumbrance on assets acquired by the Company, (b)
amendments, modifications, renewals, extensions and deferrals of any such
indebtedness, and (c) any indebtedness issued in exchange for any such
indebtedness (clauses (a) through (c) hereof being collectively referred to
herein
<PAGE>
as "Debt"); provided, however, that the following will not constitute Senior
Indebtedness with respect to Senior Subordinated Debt Securities: (1) any
Debt as to which, in the instrument evidencing such Debt or pursuant to which
such Debt was issued, it is expressly provided that such Debt is subordinate
in right of payment to all Debt of the Company not expressly subordinated to
such Debt; (2) any Debt which by its terms refers explicitly to the Senior
Subordinated Debt Securities and states that such Debt shall not be senior in
right of payment; and (3) any Debt of the Company in respect of the Senior
Subordinated Debt Securities or any Subordinated Debt Securities. The Company
will not issue Debt which is subordinated in right of payment to any other
Debt of the Company and which is not expressly made pari passu with, or
subordinate and junior in right of payment to, the Senior Subordinated Debt
Securities.
The obligations of the Company pursuant to Subordinated Debt
Securities will be subordinate in right of payment to all Senior Indebtedness
of the Company and to any Senior Subordinated Debt Securities; provided,
however, that the following will not constitute Senior Indebtedness with
respect to Subordinated Debt Securities: (1) any Debt as to which, in the
instrument evidencing such Debt or pursuant to which such Debt was issued, it
is expressly provided that such Debt is subordinate in right of payment to
all Debt of the Company not expressly subordinated to such Debt; and (2) any
Debt of the Company in respect of Subordinated Debt Securities and any Debt
which by its terms refers explicitly to the Subordinated Debt Securities and
states that such Debt shall not be senior in right of payment.
No payment pursuant to the Senior Subordinated Debt Securities or the
Subordinated Debt Securities, as the case may be, may be made unless all
amounts of principal, premium, if any, and interest then due on all
applicable Senior Indebtedness of the Company shall have been paid in full or
if there shall have occurred and be continuing beyond any applicable grace
period a default in any payment with respect to any such Senior Indebtedness,
or if there shall have occurred any event of default with respect to any such
Senior Indebtedness permitting the holders thereof to accelerate the maturity
thereof, or if any judicial proceeding shall be pending with respect to any
such default. However, the Company may make payments pursuant to the Senior
Subordinated Debt Securities or the Subordinated Debt Securities, as the case
may be, if a default in payment or an event of default with respect to the
Senior Indebtedness permitting the holder thereof to accelerate the maturity
thereof has occurred and is continuing and judicial proceedings with respect
thereto have not been commenced within a certain number of days of such
default in payment or event of default. Upon any distribution of the assets
of the Company upon dissolution, winding-up, liquidation or reorganization,
the holders of Senior Indebtedness of the Company will be entitled to receive
payment in full of principal, premium, if any, and interest (including
interest accruing subsequent to the commencement of any proceeding for the
bankruptcy or reorganization of the Company under any applicable bankruptcy,
insolvency or similar law now or hereafter in effect) before any payment is
made on the Senior Subordinated Debt Securities or Subordinated Debt
Securities, as applicable. By reason of such subordination, in the event of
insolvency of the Company, holders of Senior Indebtedness of the Company may
receive more, ratably, and holders of the Senior Subordinated Debt Securities
or Subordinated Debt Securities, as applicable, having a claim pursuant to
the Senior Subordinated Debt Securities or Subordinated Debt Securities, as
applicable, may receive less, ratably, than the other creditors of the
Company. Such subordination will not prevent the occurrence of any event of
default (an "Event of Default") in respect of the Senior Subordinated Debt
Securities or the Subordinated Debt Securities.
If the Company offers Debt Securities, the applicable Prospectus
Supplement will set forth the aggregate amount of outstanding indebtedness,
if any, as of the most recent practicable date that by the terms of such Debt
Securities would be senior to such Debt Securities. The applicable Prospectus
Supplement will also set forth any limitation on the issuance by the Company
of any additional senior indebtedness.
Conversion Rights
- -----------------
The terms, if any, on which Debt Securities of a series may be
exchanged for or converted into shares of Common Stock or Preferred Stock
will be set forth in the Prospectus Supplement relating thereto.
<PAGE>
Exchange, Registration, Transfer and Payment
- --------------------------------------------
Unless otherwise specified in the applicable Prospectus Supplement,
payment of principal, premium, if any, and any interest on the Debt
Securities will be payable, and the exchange of and the transfer of Debt
Securities will be registerable, at the office of the Trustee or at any other
office or agency maintained by the Company for such purpose subject to the
limitations of the Indenture. Unless otherwise indicated in the applicable
Prospectus Supplement, the Debt Securities will be issued in denominations of
U.S. $1,000 or integral multiples thereof. No service charge will be made for
any registration of transfer or exchange of the Debt Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge imposed in connection therewith.
Global Debt Securities
- ----------------------
The Debt Securities of a series may be issued in the form of one or
more Global Securities (the "Global Securities") that will be deposited with
a Depositary or its nominee identified in the applicable Prospectus
Supplement. In such a case, one or more Global Securities will be issued in a
denomination or aggregate denominations equal to the portion of the aggregate
principal amount of outstanding Debt Securities of the series to be
represented by such Global Security or Securities. Each Global Security will
be deposited with such Depositary or nominee or a custodian therefor and will
bear a legend regarding the restrictions on exchanges and registration of
transfer thereof referred to below and any such other matters as may be
provided for pursuant to the applicable Indenture.
Notwithstanding any provision of the Indenture or any Debt Security
described herein, no Global Security may be transferred to, or registered or
exchanged for Debt Securities registered in the name of, any person or entity
other than the Depositary for such Global Security or any nominee of such
Depositary, and no such transfer may be registered, unless (i) the Depositary
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or has ceased to be qualified to act as
such as required by the applicable Indenture, (ii) the Company executes and
delivers to the Trustee an order that such Global Security shall be so
transferable, registrable and exchangeable, and such transfers shall be
registrable, or (iii) there shall exist such circumstances, if any, as may be
described in the applicable Prospectus Supplement. All Debt Securities issued
in exchange for a Global Security or any portion thereof will be registered
in such names as the Depositary may direct.
The specific terms of the depositary arrangement with respect to any
portion of a series of Debt Securities to be represented by a Global Security
will be described in the applicable Prospectus Supplement. The Company
expects that the following provisions will apply to depositary arrangements.
Unless otherwise specified in the applicable Prospectus Supplement,
Debt Securities which are to be represented by a Global Security to be
deposited with or on behalf of a Depositary will be represented by a Global
Security registered in the name of such Depositary or its nominee. Upon the
issuance of such Global Security, and the deposit of such Global Security
with or on behalf of the Depositary for such Global Security, the Depositary
will credit, on its book-entry registration and transfer system, the
respective principal amounts of the Debt Securities represented by such
Global Security to the accounts of institutions that have accounts with such
Depositary or its nominee ("participants"). The accounts to be credited will
be designated by the underwriters or agents of such Debt Securities or by the
Company, if such Debt Securities are offered and sold directly by the
Company. Ownership of beneficial interests in such Global Security will be
limited to participants or persons that may hold interests through
participants. Ownership of beneficial interests by participants in such
Global Security will be shown on, and the transfer of that ownership interest
will be effected only through, records maintained by the Depositary or its
nominee for such Global Security. Ownership of beneficial interests in such
Global Security by persons that hold through participants will be shown on,
and the transfer of that ownership interest within such participant will be
effected only through, records maintained by such participant. The laws of
some
<PAGE>
jurisdictions require that certain purchasers of securities take physical
delivery of such securities in certificated form. The foregoing limitations
and such laws may impair the ability to transfer beneficial interests in such
Global Securities.
So long as the Depositary for a Global Security, or its nominee, is
the registered owner of such Global Security, such Depositary or such
nominee, as the case may be, will be considered the sole owner or holder of
the Debt Securities represented by such Global Security for all purposes
under the Indenture. Unless otherwise specified in the applicable Prospectus
Supplement, owners of beneficial interests in such Global Security will not
be entitled to have Debt Securities of the series represented by such Global
Security registered in their names, will not receive or be entitled to
receive physical delivery of Debt Securities of such series in certified form
and will not be considered the holders thereof for any purposes under the
Indenture. Accordingly, each person owning a beneficial interest in such
Global Security must rely on the procedures of the Depositary and, if such
person is not a participant, on the procedures of the participant through
which such person owns its interest, to exercise any rights of a holder under
the Indenture. If the Company requests any action of holders or if an owner
of a beneficial interest in such Global Security desires to give any notice
or take any action a holder is entitled to give or take under the Indenture,
the Depositary will authorize the participants to give such notice or take
such action, and participants would authorize beneficial owners owning
through such participants to give such notice or take such action or would
otherwise act upon the instructions of beneficial owners owning through them.
Notwithstanding any other provisions to the contrary in the
Indenture, the rights of the beneficial owners of the Debt Securities to
receive payment of the principal and premium, if any, of and interest on such
Debt Securities, on or after the respective due dates expressed in such Debt
Securities, or to institute suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of the beneficial owners.
Principal of and any interest on a Global Security will be payable in
the manner described in the applicable Prospectus Supplement.
Consolidation, Merger and Sale of Assets
- ----------------------------------------
The Company, without any required consent of holders of outstanding
Debt Securities, may not consolidate with or merge into, or sell, assign,
transfer, lease, convey or otherwise dispose of all or substantially all of
its property or assets to any person unless (a) the Company is the surviving
corporation or the entity or the person formed by or surviving any such
consolidation or merger (if other than the Company) or to which such sale,
assignment, transfer, lease, conveyance or other disposition shall have been
made is a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia; (b) the entity or
person formed by or surviving any such consolidation or merger (if other than
the Company) or the entity or person to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made assumes
all the obligations of the Company under the Debt Securities and the
Indenture; and (c) immediately prior to and after the transaction no Default
(as defined in the Indenture) or Event of Default exists.
<PAGE>
Except as may be described in a Prospectus Supplement applicable to a
particular series of Debt Securities, there are no covenants or other
provisions in the Indenture providing for a put or increased interest or
otherwise that would afford holders of Debt Securities additional protection
in the event of a recapitalization transaction, a change of control of the
Company or a highly leveraged transaction.
Certain Other Covenants
- -----------------------
The applicable Prospectus Supplement will describe any material
covenants in respect of a series of Offered Debt Securities. Other than the
covenants of the Company included in the Indenture as described above or as
described in the applicable Prospectus Supplement, the Indenture will not
provide holders of Debt Securities protection in the event of a
highly-leveraged transaction, reorganization, restructuring, merger or
similar transaction involving the Company which could adversely affect
holders of Debt Securities.
Events of Default
- -----------------
Unless otherwise specified in the applicable Prospectus Supplement,
the following will constitute Events of Default under the Indenture with
respect to Debt Securities of any series: (a) failure to pay principal of any
Debt Security of that series when due and payable at maturity, upon
redemption or otherwise; (b) failure to pay any interest on any Debt Security
of that series when due, and the Default continues for 30 days; (c) an Event
of Default, as defined in the Debt Securities of that series, occurs and is
continuing, or the Company fails to comply with any of its other agreements
in the Debt Securities of that series or in the Indenture with respect to
that series and the Default continues for the period and after the notice
provided therein (and described below); and (d) certain events of bankruptcy,
insolvency or reorganization. A Default under clause (c) above is not an
Event of Default with respect to a particular series of Securities until the
Trustee or the holders of at least 25% in principal amount of the then
outstanding Securities of that series notify the Company of the Default and
the Company does not cure the Default within 30 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
If an Event of Default with respect to outstanding Debt Securities of
any series (other than an Event or Default relating to certain events of
bankruptcy, insolvency or reorganization) shall occur and be continuing,
either the Trustee or the holders of at least 25% in principal amount of the
outstanding Debt Securities of that series by notice, as provided in the
Indenture, may declare the unpaid principal amount (or, if the Debt
Securities of that series are Original Issue Discount Securities, such lesser
amount as may be specified in the terms of that series) of, and any accrued
and unpaid interest on, all Debt Securities of that series to be due and
payable immediately. However, at any time after a declaration of acceleration
with respect to Debt Securities of any series has been made, but before a
judgment or decree based on such acceleration has been obtained, the holders
of a majority in principal amount of the outstanding Debt Securities of that
series may, under certain circumstances, rescind and annul such acceleration.
For information as to waiver of defaults, see "Modification and Waiver"
below.
The Indenture will provide that, subject to the duty of the Trustee
during an Event of Default to act with the required standard of care, the
Trustee will be under no obligation to exercise any of its rights or powers
under the applicable Indenture at the request or direction of any of the
holders, unless such holders shall have offered to the Trustee reasonable
security or indemnity. Subject to certain provisions, including those
requiring security or indemnification of the Trustee, the holders of a
majority in principal amount of the outstanding Debt Securities of any series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Debt Securities of
that series.
<PAGE>
The Company will be required to furnish to the Trustee under the
Indenture annually a statement as to the performance by the Company of its
obligations under that Indenture and as to any default in such performance.
Modification and Waiver
- -----------------------
Subject to certain exceptions, the Company and the Trustee may amend
the Indenture or the Debt Securities with the written consent of the holders
of a majority in principal amount of the then outstanding Debt Securities of
each series affected by the amendment with each series voting as a separate
class. The holders of a majority in principal amount of the then outstanding
Debt Securities of any series may also waive compliance in a particular
instance by the Company with any provision of the Indenture with respect to
the Debt Securities of that series; provided, however, that without the
consent of each holder of Debt Securities affected, an amendment or waiver
may not (i) reduce the percentage of the principal amount of Debt Securities
whose holders must consent to an amendment or waiver; (ii) reduce the rate or
change the time for payment of interest on any Debt Security; (iii) reduce
the principal of or change the fixed maturity of any Debt Security, or alter
the redemption provisions which respect thereto; (iv) make any Debt Security
payable in money other than that stated in the Debt Security; (v) make any
change in the provisions concerning waivers of Default or Events of Default
by holders or the rights of holders to recover the principal of, or interest
on, any Debt Security; or (vi) waive a default in the payment of the
principal of, or interest on, any Debt Security, except as otherwise provided
in the Indenture. The Company and the Trustee may amend the Indenture or the
Debt Securities without notice to or the consent of any holder of a Debt
Security: (i) to cure any ambiguity, defect or inconsistency; (ii) to comply
with the Indenture's provisions with respect to successor corporations; (iii)
to comply with any requirements of the Commission in connection with the
qualification of the Indenture under the TIA; (iv) to provide for Debt
Securities in addition to or in place of certificated Debt Securities; (v) to
add to, change or eliminate any of the provisions of the Indenture in respect
of one of more series of Debt Securities, provided, however, that any such
addition, change or elimination (A) shall neither (1) apply to any Debt
Security of any series created prior to the execution of such amendment and
entitled to the benefit of such provision, nor (2) modify the rights of a
holder of any such Debt Security with respect to such provision, or (B) shall
become effective only when there is no outstanding Debt Security of any
series created prior to such amendment and entitled to the benefit of such
provision; (vi) to make any change that does not adversely affect in any
material respect the interest of any holder; or (vii) to establish additional
series of Debt Securities as permitted by the Indenture.
Subject to certain exceptions, the holders of a majority in principal
amount of the then outstanding Debt Securities of any series, by notice to
the Trustee, may waive an existing Default or Event of Default and its
consequences except a Default or Event of Default in the payment of the
principal of, or any interest on, any Debt Security with respect to the Debt
Securities of that series.
Termination of the Company's Obligations under the Debt Securities and the
Indenture
Except as otherwise described below, the Company may terminate its
obligations under the Debt Securities and the Indenture with respect to the
Debt Securities if:
(a) all previously authenticated and delivered Debt Securities (other
than destroyed, lost or stolen Debt Securities which have been replaced or
Debt Securities which are paid or Debt Securities for whose payment money or
securities has theretofore been held in trust and thereafter repaid to the
Company) have been delivered to the Trustee for cancellation and the Company
has paid all sums payable by it under the Indenture; or
(b) (1) the Debt Securities mature within one year; and
<PAGE>
(2) the Company irrevocably deposits in trust with the Trustee
during such one-year period, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds
solely for the benefit of the holders of Debt Securities for that purpose,
money or U.S. government obligations, or a combination thereof, with the U.S.
government obligations maturing as to principal and interest in such amounts
and at such times as are sufficient, without consideration of any
reinvestment of such interest, to pay principal of and interest on the Debt
Securities to maturity and to pay all other sums payable by it under the
Indenture; or
(c) (1) the Company irrevocably deposits in trust with the Trustee
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds solely for the benefit of the
holders of Debt Securities for that purpose, money or U.S. government
obligations, or a combination thereof, with the U.S. government obligations
maturing as to principal and interest in such amounts and at such times as
are sufficient, without consideration of any reinvestment of such interest,
to pay principal of and interest on the Debt Securities to maturity;
(2) the Company shall have delivered to the Trustee (A) a ruling
directed to the Trustee received from the Internal Revenue Service to the
effect that the holders of the Debt Securities will not recognize income,
gain or loss for federal income tax purposes as a result of the Company's
exercise of its option under this clause (c) and will be subject to federal
income tax on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised, or (B) an
opinion of counsel to the same effect as the ruling described in subclause
(A) above accompanied by a ruling to that effect published by the Internal
Revenue Service, unless there has been a change in the applicable federal
income tax law since the date of the Indenture such that a ruling from the
Internal Revenue Service is no longer required;
(3) the Company has paid or caused to be paid all sums then
payable by the Company under the Indenture; and
(4) the Company has delivered to the Trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent provided for in this clause (c) relating to termination of
obligations of the Company have been complied with.
The Company's obligations under sections of the Indenture relating to
the registrar and the paying agent, their obligations, the maintenance of a
list of holders, transfers of Debt Securities, replacement of securities,
payment (together with payment obligations under the Debt Securities),
compensation and indemnity of the Trustee, replacement of the Trustee and
repayment to the Company of excess money held by the Trustee or the paying
agent, shall survive until the Debt Securities are no longer outstanding. If
the ruling from the Internal Revenue Service or opinion of counsel referred
to in clause (c)(2) above is based on or assumes that the Company's payment
obligations under the Indenture or its payment obligations under the Debt
Securities will continue (or is silent with respect thereto), then such
discharge shall constitute only a "covenant defeasance" and, consequently,
the Company shall remain liable for the payment of the Debt Securities.
However, if and when a ruling from the Internal Revenue Service or opinion of
counsel referred to in clause (c)(2) above is able to be provided
specifically without regard to, and not in reliance upon, the continuance of
the Company's payment obligations under the Indenture and its payment
obligations under the Debt Securities, then the Company's payment obligations
under the Indenture and the Debt Securities shall cease upon delivery to the
Trustee of such ruling or opinion of counsel and compliance with the other
conditions precedent provided for in clause (c) above relating to the
satisfaction and discharge of the Indenture. In such a case (a "legal
defeasance") holders would be able to look only to the trust fund for payment
of principal and any interest on the Debt Securities.
<PAGE>
Regarding the Trustees
- ----------------------
The Trustee with respect to the first series of Debt Securities, if
any, will be identified in the Prospectus Supplement relating to such Debt
Securities. Other Trustees may be designated for any subsequent series of
Debt Securities. The Indenture and provisions of the TIA incorporated by
reference therein, contain certain limitations on the rights of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any
such claim, as security or otherwise. The Trustee and its affiliates may
engage in, and will be permitted to continue to engage in, other transactions
with the Company and its affiliates; provided, however, that if it acquires
any conflicting interest (as defined), it must eliminate such conflict or
resign.
The holders of a majority in principal amount of the then outstanding
Debt Securities of any series will have the right to direct the time, method
and place of conducting any proceeding for exercising any remedy available to
the Trustee. The TIA and the Indenture provide that in case an Event of
Default shall occur (and be continuing), the Trustee will be required, in the
exercise of its rights and powers, to use the degree of care and skill of a
prudent man in the conduct of his own affairs. Subject to such provision, the
Trustee will be under no obligation to exercise any of its rights or powers
under the Indenture at the request of any of the holders of the Debt
Securities issued thereunder, unless they have offered to the Trustee
indemnity satisfactory to it.
DESCRIPTION OF WARRANTS
The Company may issue Debt Warrants as well as Equity Warrants.
Warrants may be issued independently or together with any Securities and may
be attached to or separate from such securities. The Warrants are to be
issued under warrant agreements (each a "Warrant Agreement") to be entered
into between the Company and a bank or trust company, as warrant agent (the
"Warrant Agent"), all as shall be set forth in the Prospectus Supplement
relating to Warrants being offered pursuant thereto. As of the date hereof,
the Company has no Warrants outstanding.
Debt Warrants
- -------------
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt
Warrants and the debt warrant certificates representing such Debt Warrants
("Debt Warrant Certificates"), including the following: (1) the title of such
Debt Warrants; (2) the aggregate number of such Debt Warrants; (3) the price
or prices at which such Debt Warrants will be issued; (4) the designation,
aggregate principal amount and terms of the Debt Securities purchasable upon
exercise of such Debt Warrants, and the procedures and conditions relating to
the exercise of such Debt Warrants; (5) the designation and terms of any
related Debt Securities with which such Debt Warrants are issued, and the
number of such Debt Warrants issued with each such Debt Security; (6) the
date, if any, on and after which such Debt Warrants and the related Debt
Securities will be separately transferable; (7) the principal amount of Debt
Securities purchasable upon exercise of each Debt Warrant; (8) the date on
which the right to exercise such Debt Warrants will commence, and the date on
which such right will expire; (9) the maximum or minimum number of such Debt
Warrants which may be exercised at any time; (10) a discussion of any
material federal income tax considerations; and (11) any other terms of such
Debt Warrants and terms, procedures and limitations relating to the exercise
of such Debt Warrants.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations, and Debt Warrants may be exercised
at the corporate trust office of the Warrant Agent or any other office
indicated in the Prospectus Supplement. Prior to the exercise of their Debt
Warrants, holders of Debt Warrants will not have any of the rights of holders
of the Debt Securities purchasable upon such exercise and will not be
entitled to payment of principal of or any premium or interest on the Debt
Securities purchasable upon such exercise.
<PAGE>
Equity Warrants
- ---------------
The applicable Prospectus Supplement will describe the terms of
Equity Warrants offered thereby, the Warrant Agreement relating to such
Equity Warrants and the equity warrant certificates representing such Equity
Warrants ("Equity Warrant Certificates" and together with Debt Warrant
Certificates, "Warrant Certificates"), including the following: (1) the title
of such Equity Warrants; (2) the Securities (i.e. Preferred Stock or Common
Stock) for which such Equity Warrants are exercisable; (3) the price or
prices at which such Equity Warrants will be issued; (4) if applicable, the
designation and terms of the Preferred Stock or Common Stock with which such
Equity Warrants are issued, and the number of such Equity Warrants issued
with each such share of Preferred Stock or Common Stock; (5) if applicable,
the date on and after which such Equity Warrants and the related Preferred
Stock or Common Stock will be separately transferable; (6) if applicable, a
discussion of any material federal income tax considerations; and (7) any
other terms of such Equity Warrants, including terms, procedures and
limitations relating to the exchange and exercise of such Equity Warrants.
Equity Warrant Certificates will be exchangeable for new Equity
Warrant Certificates of different denominations, and Equity Warrants may be
exercised at the corporate trust office of the Warrant Agent or any other
office indicated in the Prospectus Supplement. Holders of Equity Warrants
will not be entitled, by virtue of being such holders, to vote, to consent,
to receive dividends, to receive notice as stockholders with respect to any
meeting of stockholders for the election of directors of the Company or any
other matter, or to exercise any rights whatsoever as stockholders of the
Company.
Exercise of Warrants
- --------------------
Each Warrant will entitle the holder to purchase for cash such
principal amount of Securities at such exercise price as shall in each case
be set forth in, or be determinable as set forth in, the Prospectus
Supplement relating to the Warrants offered thereby. Warrants may be
exercised at any time up to the close of business on the expiration date set
forth in the Prospectus Supplement relating to the Warrants offered thereby.
After the close of business on the expiration date, unexercised Warrants will
become void.
Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Warrants offered thereby. Upon receipt of payment and the
Warrant Certificate properly completed and duly executed at the corporate
trust office of the Warrant Agent or any other office indicated in the
Prospectus Supplement, the Company will, as soon as practicable, forward the
Securities purchasable upon such exercise. If less than all of the Warrants
represented by such Warrant Certificate are exercised, a new Warrant
Certificate will be issued for the remaining Warrants.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets
forth certain general terms and provisions of the Preferred Stock to which
any Prospectus Supplement may relate. Certain other terms of any series of
the Preferred Stock offered by any Prospectus Supplement will be described in
such Prospectus Supplement. The description of certain provisions of the
Preferred Stock set forth below and in any Prospectus Supplement does not
purport to be complete and is subject to and qualified in its entirety by
reference to the Company's Restated Certificate of Incorporation (the
"Certificate of Incorporation"), and the certificate of designation (a
"Certificate of Designation") relating to each series of the Preferred Stock
which will be filed with the Commission and incorporated by reference in the
Registration Statement of which this Prospectus is a part at or prior to the
time of the issuance of such series of the Preferred Stock.
<PAGE>
General
- -------
The Company has the authority to issue 25,000,000 shares of preferred
stock, $1.00 par value per share ("preferred stock of the Company," which
term, as used herein, includes the Preferred Stock offered hereby).
The Company has authorized 600,000 shares of Series A Junior
Participating Preferred Stock ("Junior Preferred Stock") in connection with
the Company's dividend distribution of one Preferred Share Purchase Right for
each outstanding share of its Common Stock. Each Right entitles its holder to
buy one one-hundredth of a share of the Junior Preferred Stock at an exercise
price of $60 per share. The Rights only become exercisable if a person or
group acquires or makes an offer to acquire 15 percent or more of the
Company's Common Stock. As of the date hereof, the Company has no Preferred
Stock outstanding.
Under the Certificate of Incorporation, the Board of Directors of the
Company is authorized without further stockholder action to designate and
provide for the issuance of up to 25,000,000 shares of preferred stock of the
Company, in one or more series, with such voting powers, full or limited, and
with such designations, preferences and relative participating, optional or
other special rights, and qualifications, limitations or restrictions
thereof, as shall be stated in the resolution or resolutions providing for
the issue of a series of such stock adopted, at any time or from time to
time, by the Board of Directors of the Company (as used herein the term
"Board of Directors of the Company" includes any duly authorized committee
thereof).
The Preferred Stock shall have the dividend, liquidation, redemption
and voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference
is made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the number
of shares offered; (ii) the amount of liquidation preference per share; (iii)
the initial public offering price at which such Preferred Stock will be
issued; (iv) the dividend rate (or method of calculation), the dates on which
dividends shall be payable and the dates from which dividends shall commence
to cumulate, if any; (v) any redemption or sinking fund provisions; (vi) any
conversion or exchange rights; and (vii) any additional voting, dividend,
liquidation, redemption, sinking fund and other rights, preferences,
privileges, limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and
nonassessable and will have no preemptive rights. The rights of the holders
of each series of the Preferred Stock will be subordinate to those of the
Company's general creditors.
Dividend Rights
- ---------------
Holders of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of funds of the Company legally available therefor, cash dividends on
such dates and at such rates as are set forth in, or as are determined by the
method described in, the Prospectus Supplement relating to such series of the
Preferred Stock. Such rate may be fixed or variable or both. Each such
dividend will be payable to the holders of record as they appear on the stock
books of the Company on such record dates, fixed by the Board of Directors of
the Company, as specified in the Prospectus Supplement relating to such
series of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the
Board of Directors of the Company fails to declare a dividend payable on a
dividend payment date on any series of Preferred Stock for which dividends
are noncumulative, then the right to receive a dividend in respect of the
dividend period ending on such dividend payment date will be lost, and the
Company will have no obligation to pay any dividend for such period, whether
or not dividends on such series are declared payable on any future dividend
payment dates. Dividends on the shares of each series of Preferred Stock for
which dividends are cumulative will accrue from the date on which the Company
initially issues shares of such series.
<PAGE>
Unless otherwise specified in the applicable Prospectus Supplement,
so long as the shares of any series of the Preferred Stock are outstanding,
unless (i) full dividends (including if such Preferred Stock is cumulative,
dividends for prior dividend periods) have been paid or declared and set
apart for payment on all outstanding shares of the Preferred Stock of such
series and all other classes and series of preferred stock of the Company
(other than Junior Stock, as defined below) and (ii) the Company is not in
default or in arrears with respect to the mandatory or optional redemption or
mandatory repurchase or other mandatory retirement of, or with respect to any
sinking or other analogous funds for, any shares of Preferred Stock of such
series or any shares of any other preferred stock of the Company of any class
or series (other than Junior Stock), the Company may not declare any
dividends on any shares of Common Stock of the Company or any other stock of
the Company ranking as to dividends or distributions of assets junior to such
series of Preferred Stock (the Common Stock and any such other stock being
herein referred to as "Junior Stock"), or make any payment on account of, or
set apart money for, the purchase, redemption or other retirement of, or for
a sinking or other analogous fund for, any shares of Junior Stock or make any
distribution in respect thereof, whether in cash or property or in
obligations of stock of the Company, other than in Junior Stock which is
neither convertible into nor exchangeable or exercisable for, any securities
of the Company other than Junior Stock.
Liquidation Preferences
- -----------------------
Unless otherwise specified in the applicable Prospectus Supplement,
in the event of any liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, the holders of each series of the Preferred
Stock will be entitled to receive out of the assets of the Company available
for distribution to stockholders, before any distribution of assets is made
to the holders of Common Stock or any other shares of stock of the Company
ranking junior as to such distribution to such series of the Preferred Stock,
the amount set forth in the Prospectus Supplement relating to such series of
the Preferred Stock. If, upon any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the amounts payable with respect to
the Preferred Stock of any series and any other shares of preferred stock of
the Company (including any other series of the Preferred Stock) ranking as to
any such distribution on a parity with such series of the Preferred Stock are
not paid in full, the holders of the Preferred Stock of such series and of
such other shares of preferred stock of the Company will share ratably in any
such distribution of assets of the Company in proportion to the full
respective preferential amounts to which they are entitled. After payment to
the holders of the Preferred Stock of each series of the full preferential
amounts of the liquidating distribution to which they are entitled, unless
otherwise provided in the applicable Prospectus Supplement, the holders of
each such series of the Preferred Stock will be entitled to no further
participation in any distribution of assets by the Company.
Redemption
- ----------
A series of the Preferred Stock may be redeemable, in whole or from
time to time in part, at the option of the Company, and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise, in each case
upon terms, at the times and at the redemption prices set forth in the
Prospectus Supplement relating to such series. Shares of the Preferred Stock
redeemed by the Company will be restored to the status of authorized but
unissued shares of preferred stock of the Company.
In the event that fewer than all of the outstanding shares of a
series of the Preferred Stock are to be redeemed, whether by mandatory or
optional redemption, the number of shares to be redeemed will be determined
by lot or pro rata (subject to rounding to avoid fractional shares) as may be
determined by the Company or by any other method as may be determined by the
Company in its sole discretion to be equitable. From and after the redemption
date (unless default is made by the Company in providing for the payment of
the redemption price plus cumulated and unpaid dividends, if any) dividends
will cease to accumulate on the shares of the Preferred Stock called for
redemption and all rights of the holders thereof (except the right to receive
the redemption price plus accumulated and unpaid dividends, if any) will
cease.
<PAGE>
Unless otherwise specified in the applicable Prospectus Supplement,
so long as any dividends on shares of any series of the Preferred Stock or
any other series of preferred stock of the Company ranking on a parity as to
dividends and distribution of assets with such series of the Preferred Stock
are in arrears, no shares of any such series of the Preferred Stock or such
other series of preferred stock of the Company will be redeemed (whether by
mandatory or optional redemption) unless all such shares are simultaneously
redeemed, and the Company will not purchase or otherwise acquire any such
shares; provided, however, that the foregoing will not prevent the purchase
or acquisition of shares pursuant to a purchase or exchange offer made on the
same terms to holders of all such shares outstanding.
Conversion and Exchange Rights
- ------------------------------
The terms, if any, on which shares of Preferred Stock of any series
may be exchanged for or converted into shares of Common Stock or another
series of Preferred Stock will be set forth in the Prospectus Supplement
relating thereto. Such terms may include provisions for conversion, either
mandatory, at the option of the holder, or at the option of the Company, in
which case the number of shares of Common Stock or the number of shares of
another series of Preferred Stock to be received by the holders of Preferred
Stock would be calculated as of a time and in the manner stated in the
Prospectus Supplement.
Voting Rights
- -------------
Except as indicated in a Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as required by applicable
law, the holders of the Preferred Stock will not be entitled to vote for any
purpose.
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for
public offering and sale by them or may sell the Securities to investors
directly or through agents. Any such underwriter or agent involved in the
offer and sale of Securities will be named in the applicable Prospectus
Supplement. The Company has reserved the right to sell Securities directly to
investors on its own behalf in those jurisdictions where and in such manner
as it is authorized to do so.
Underwriters may offer and sell Securities at a fixed price or
prices, which may be changed, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, or at negotiated
prices. The Company also may, from time to time, authorize dealers, acting as
the Company's agents, to offer and sell Securities upon the terms and
conditions as are set forth in the applicable Prospectus Supplement. In
connection with the sale of Securities, underwriters may receive compensation
from the Company in the form of underwriting discounts or commissions and may
also receive commissions from purchasers of the Securities for whom they may
act as agent. Underwriters may sell Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions from the purchasers
for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or
agents in connection with the offering of Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the applicable Prospectus Supplement. Dealers and agents
participating in the distribution of Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any
profit realized by them on resale of the Securities may be deemed to be
underwriting discounts and commissions. Underwriters, dealers and agents may
be entitled, under agreements entered into with the Company, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act of 1933.
If so indicated in the Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase the Securities from the Company at the public
offering price set forth in the applicable Prospectus Supplement pursuant to
delayed delivery contracts ("Contracts") providing for payment and delivery
on the date or dates stated in such Prospectus Supplement. Each Contract will
be for an amount not less than the amounts stated in the applicable
Prospectus Supplement. Institutions with whom Contracts, when authorized, may
be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions, and
other institutions but will in all cases be subject to the approval of the
Company. Contracts will not be subject to any conditions except (i) the
purchase by the institution of the Securities covered by its Contract shall
not at the time of delivery be prohibited under the laws of any jurisdiction
in the United States to which such institution is subject, and (ii) if the
Securities are being sold to underwriters, the Company shall have sold to
such underwriters the total amount specified in the applicable Prospectus
Supplement. A commission indicated in the applicable Prospectus Supplement
will be paid to underwriters and agents soliciting purchases of Securities
pursuant to Contracts accepted by the Company.
<PAGE>
LEGAL MATTERS
Certain legal matters with respect to the Securities offered hereby
will be passed upon for the Company by Latham & Watkins, San Francisco,
California. Certain legal matters will be passed upon for any agents or
underwriters by counsel for such agents or underwriters identified in the
applicable Prospectus Supplement.
EXPERTS
The consolidated financial statements of Thiokol Corporation
incorporated by reference in Thiokol Corporation's Annual Report (Form 10-K)
for the year ended June 30, 1995, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon incorporated by
reference therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon
such report given upon the authority of such firm as experts in accounting
and auditing.
<PAGE>
<TABLE>
============================================= =================================
No dealer, salesperson or any other
person has been authorized to give any
information or to make any representation
in connection with this offering other than [LOGO]
those contained in this Prospectus, and, if
given or made, such information or
representation must not be relied upon as
having been so authorized by the Company or
any Underwriter. This Prospectus does not Thiokol Corporation
constitute an offer to sell or a
solicitation of an offer to buy by anyone
in any jurisdiction in which such offer to $300,000,000
sell is not authorized, or in which the
person is not qualified to do so or to any
person to whom it is unlawful to make such Debt Securities
offer or solicitation. Neither the Warrants to Purchase Debt Securities
delivery of this Prospectus nor any sale Warrants to Purchase Equity Securities
hereunder shall, under any circumstances, Preferred Stock
create any implication that there has been Common Stock
no change in the affairs of the Company
since the date hereof or that the
information contained herein is correct as
of any time subsequent to its date.
----------
PROSPECTUS
----------
TABLE OF CONTENTS
Page
<S> <C>
Available Information................ 2
Information Incorporated by Reference 2 _________, 1996
The Company.......................... 3
Use of Proceeds...................... 4
Ratios of Earnings to Fixed Charges.. 4
General Description of Securities... 5
Description of Debt Securities....... 5
Description of Warrants............... 13
Description of Preferred Stock........ 14
Plan of Distribution.................. 18
Legal Matters......................... 19
Experts............................... 19
============================================= ===========================
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses to be paid by the Company in connection with the
distribution of the securities being registered are as set forth in the
following table:
<TABLE>
<S> <C>
Securities and Exchange Commission Fee........................ $103,449
*Rating Agency Fee............................................ 120,000
*Legal Fees and Expenses...................................... 50,000
*Accounting Fees and Expenses................................. 15,000
*Printing and Engraving Expenses.............................. 10,000
*Blue Sky Fees................................................ 10,000
*Trustee/Issuing & Paying Agent Fees and Expenses............. 10,000
*Miscellaneous................................................ 6,551
---------
*Total................................................. $325,000
========
</TABLE>
* Estimated.
Item 15. Indemnification of Directors and Officers
The Company has the power, pursuant to Section 145 of the Delaware General
Corporation Law, to limit the liability of its directors from certain
breaches of fiduciary duty and to indemnify its directors, officers and other
persons for certain acts.
Articles NINTH of the Company's Certificate of Incorporation provide as
follows:
"NINTH:A. A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the General Corporation Law of the State of
Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. If the General Corporation Law of the
State of Delaware is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or
limited to the fullest extent permitted by the General Corporation Law
of the State of Delaware, as so amended. Any repeal or modification of
this Section A by the stockholders of the Corporation shall not
adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
B. (1) Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit, or proceeding,
whether civil, criminal, administrative or investigative (hereinafter
a "proceeding"), by reason of the fact that he or she or a person of
whom he or she is the legal representative is or was a director,
officer or employee of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee or agent
of another
<PAGE>
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans,
whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent,
shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the General Corporation Law of the State
of Delaware as the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights than
said law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and
amounts paid or to be paid in settlement) reasonably incurred or
suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
his or her heirs, executors and administrators; provided, however,
that except as provided in paragraph (2) of this Section B with
respect to proceedings seeking to enforce rights to indemnification,
the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part thereof) was
authorized by the Board of Directors of the Corporation. The right to
indemnification conferred in this Section B shall be a contract right
and shall include the right to be paid by the Corporation the expenses
incurred in defending any such proceeding in advance of its final
disposition; provided, however, that if the General Corporation Law of
the State of Delaware requires, the payment of such expenses incurred
by a director or officer in his or her capacity as a director or
officer (and not in any other capacity in which service was or is
rendered by such person while a director or officer, including,
without limitation, service to an employee benefit plan) in advance of
the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking by or on behalf of such
director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled
to be indemnified under this Section B or otherwise.
(2) If a claim under paragraph (1) of this Section B is not paid in
full by the Corporation within thirty days after a written claim has
been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the
claimant shall be entitled to be paid also the expense of prosecuting
such claim. It shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending
any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation)
that the claimant has not met the standards of conduct which make it
permissible under the General Corporation Law of the State of Delaware
for the Corporation to indemnify the claimant for the amount claimed,
but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of
Directors, independent legal counsel or stockholders) to have made a
determination prior to the commencement of such action that
indemnification of the claimant is proper in the circumstances because
he or she has met the applicable standard of conduct set forth in the
General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel or stockholders) that the claimant has not
met such applicable standard of conduct, shall be a defense to the
action or create a presumption that the claimant has not met the
applicable standard of conduct.
(3) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition
conferred in this Section B shall not be exclusive of any other right
which any person may have or hereafter acquire under any statute,
provision of the certificate of incorporation, By-Law, agreement, vote
of stockholders or disinterested directors or otherwise.
(4) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation
or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would
<PAGE>
have the power to indemnify such person against such expense,
liability or loss under the General Corporation Law of the State of
Delaware.
(5) The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and rights to
be paid by the Corporation the expenses incurred in defending any
proceeding in advance of its final disposition, to any agent of the
Corporation to the fullest extent of the provisions of this Section B
with respect to the indemnification and advancement of expenses of
directors, officers and employees of the Corporation.
Item 16. Exhibits and Financial Statement Schedules
(a) Exhibits:
4(a) Restated Certificate of Incorporation of the Company, which
was filed as Exhibit 3 to the Company's Annual Report on Form
10-K for the fiscal year ended June 30, 1989, and is
incorporated by reference herein.
4(b) Bylaws of the Company, as amended to date, which were filed
as Exhibit 3 to the Company's Annual Report on Form 10-K for
the fiscal year ended June 30, 1993, and are incorporated by
reference herein.
4(c) Rights Agreement dated January 26, 1989, between the Company
and The First National Bank of Chicago, which was filed as
Exhibit 1 filed with the Company's Form 8-A dated February 8,
1989, and is incorporated by reference herein.
4(d) Amendment to Rights Agreement between the Company and The
First National Bank of Chicago, dated June 22, 1989, which
was filed as Exhibit 2 filed with the Company's Report on
Form 8-K dated July 3, 1989, and is incorporated by reference
herein.
4(e) Amendment No. 2 to Rights Agreement between the Company and
The First National Bank of Chicago, dated January 18, 1990,
which was filed as Exhibit 3 filed with the Company's Report
on Form 8-K dated January 18, 1990, and is incorporated by
reference herein.
4(f) Form of Indenture.
4(g)* Form of Warrant Agreement for Equity Securities.
4(h)* Form of Warrant Agreement for Debt Securities.
5 Opinion of Latham & Watkins.
12 Statement regarding Computation of Ratios.
23(a) Consent of Ernst & Young LLP.
23(b) Consent of Latham & Watkins (included in Exhibit 5).
24 Powers of Attorney.
- -----------------
* To be filed by amendment or incorporated by reference in connection with
the offering of the Securities.
<PAGE>
Item 17. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that the information required to be included in a
post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) above may be
contained in periodic reports filed by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act of 1934 and (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(e) The undersigned registrant hereby undertakes to deliver or cause
to be delivered with the prospectus, to each person to whom the prospectus is
sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Registration S-X are not set forth in the
prospectus, to deliver, or cause to be delivered to each person to whom the
prospectus is sent or given, the latest quarterly report that is specifically
incorporated by reference in the prospectus to provide such interim financial
information.
<PAGE>
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing provisions or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
(j) The undersigned registrant hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to
act under Subsection (a) of Section 310 of the Trust Indenture Act (the
"Act") in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Ogden, Utah on March 15, 1996.
THIOKOL CORPORATION
s/James R. Wilson
By --------------------------------
James R. Wilson
Chairman of the Board, President
and Chief Executive Officer
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint James R. Wilson and Richard
L. Corbin, and each of them, with full power of substitution and full power
to act without the other, his true and lawful attorney-in-fact and agent to
act for him in his name, place and stead, in any and all capacities, to sign
a registration statement on Form S-3 and any or all amendments thereto, and
to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the
same as fully, to all intents and purposes, as they or he might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
amendment to registration statement has been signed by each of the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
s/James R. Wilson Chairman of the Board, March 15, 1996
- ---------------------- President and Chief
(James R. Wilson) Executive Officer
s/Richard L. Corbin Senior Vice President March 15, 1996
- ---------------------- and Chief Financial
(Richard L. Corbin) Officer
s/Michael R. Ayers
- ---------------------- Vice President and March 15, 1996
(Michael R. Ayers) Controller
s/
- ----------------------
(Neil A. Armstrong) Director March 15, 1996
s/
- ----------------------
(Michael P.C. Carns) Director March 15, 1996
s/Edsel D. Dunford
- ----------------------
(Edsel D. Dunford) Director March 15, 1996
s/U. Edwin Garrison
- ----------------------
(U. Edwin Garrison) Director March 15, 1996
s/L. Dennis Kozlowski
- ----------------------
(L. Dennis Kozlowski) Director March 15, 1996
s/Charles S. Locke
- ----------------------
(Charles S. Locke) Director March 15, 1996
s/James M. Ringler
- ----------------------
(James M. Ringler) Director March 15, 1996
s/William O. Studeman
- ----------------------
(William O. Studeman) Director March 15, 1996
s/Donald C. Trauscht
- ----------------------
(Donald C. Trauscht) Director March 15, 1996
<PAGE>
Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts"
in the Registration Statement (Form S-3; No. 333- ) and related Prospectus of
Thiokol Corporation and to the incorporation by reference therein of our
report dated July 31, 1995, with respect to the financial statements of
Thiokol Corporation included in its Annual Report (Form 10-K) for the year
ended June 30, 1995, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Salt Lake City, Utah
March 15, 1996
<PAGE>
EXHIBIT INDEX
4(a) Restated Certificate of Incorporation of the Company, which was filed
as Exhibit 3 to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1989, and is incorporated by reference
herein.
4(b) Bylaws of the Company, as amended to date, which were filed as
Exhibit 3 to the Company's Annual Report on Form 10-K for the fiscal
year ended June 30, 1993, and are incorporated by reference herein.
4(c) Rights Agreement dated January 26, 1989, between the Company and The
First National Bank of Chicago, which was filed as Exhibit 1 filed
with the Company's Form 8-A dated February 8, 1989, and is
incorporated by reference herein.
4(d) Amendment to Rights Agreement between the Company and The First
National Bank of Chicago, dated June 22, 1989, which was filed as
Exhibit 2 filed with the Company's Report on Form 8-K dated July 3,
1989, and is incorporated by reference herein.
4(e) Amendment No. 2 to Rights Agreement between the Company and The First
National Bank of Chicago, dated January 18, 1990, which was filed as
Exhibit 3 filed with the Company's Report on Form 8-K dated January
18, 1990, and is incorporated by reference herein.
4(f) Form of Indenture.
4(g)* Form of Warrant Agreement for Equity Securities.
4(h)* Form of Warrant Agreement for Debt Securities.
5 Opinion of Latham & Watkins.
12 Statement regarding Computation of Ratios.
23(a) Consent of Ernst & Young LLP.
23(b) Consent of Latham & Watkins (included in Exhibit 5).
24 Powers of Attorney.
- ---------------
* To be filed by amendment or incorporated by reference in connection with
the offering of the Securities.
<PAGE>
Exhibit 4(f)
THIOKOL CORPORATION,
as Issuer
and
[ ],
as Trustee
----------------------
INDENTURE
dated as of ___________, 199__
---------------------
<PAGE>
CROSS-REFERENCE TABLE*
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
310(a)(1)................................................................. 7.10
(a)(2)................................................................ 7.10
(a)(3)................................................................ N.A.
(a)(4)................................................................ N.A.
(a)(5)................................................................ 7.10
(b)............................................................. 7.08; 7.10
(c)................................................................... N.A.
311(a).................................................................... 7.11
(b)................................................................... 7.11
(c)................................................................... N.A.
312(a).................................................................... 2.05
(b)...................................................................10.03
(c)...................................................................10.03
313(a).................................................................... 7.06
(b)................................................................... 7.06
(c)............................................................ 7.06; 10.02
(d)................................................................... 7.06
314(a) ................................................... .........4.03; 10.02
(b)................................................................... N.A.
(c)(1) ...............................................................10.04
(c)(2)............................................................... 10.04
(c)(3) ............................................................... N.A.
(d)................................................................... N.A.
(e) ..................................................................10.05
(f) ...................................................................N.A.
315(a) .............................................................7.01(b)(ii)
(b) ............................................................7.05; 10.02
(c) ................................................................7.01(a)
(d) ............................................................... 7.01(d)
(e) .................................................................. 6.11
316(a)(last sentence) .................................................... 2.09
(a)(1)(A)............................................................. 6.05
(a)(1)(B) ............................................................ 6.04
(a)(2) ............................................................... N.A.
(b) .................................................................. 6.07
(c) ............................................................ 2.13; 9.03
317(a)(1) ................................................................ 6.08
(a)(2) ............................................................... 6.09
(b) .................................................................. 2.04
318(a)................................................................... 10.01
(b)................................................................... N.A.
(c)...................................................................10.01
N.A. means not applicable.
- ----------------------------
*This Cross-Reference Table is not part of the Indenture.
<PAGE>
INDENTURE dated as of _____________, 199__ between Thiokol
Corporation, a Delaware corporation (the "Company"), and
____________________________, a ______________________, as Trustee (the
"Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or
more series (the "Securities"), as herein provided, up to such principal
amount as may from time to time be authorized in or pursuant to one or more
resolutions of the Board of Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of each series of the
Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Certain Definitions.
- ------------- --------------------
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of
voting stock, by agreement or otherwise; provided, however, that beneficial
ownership of 20% or more of the voting stock of a Person shall be deemed to
be control.
"Agent" means any Registrar, Paying Agent, authenticating agent or
co-Registrar.
"Board of Directors" means the Board of Directors of the Company or
any authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification (and delivered to the Trustee, if appropriate).
"Commission" means the Securities and Exchange Commission.
"Company" means the party named as such above until a successor
replaces it pursuant to this Indenture and thereafter means the successor.
"Default" means any event that is, or with the passage of time or
the giving of notice or both would be, an Event of Default.
<PAGE>
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant
segment of the accounting profession, which are in effect from time to time.
"Global Security" shall mean a Security issued to evidence all or a
part of any series of Securities that is executed by the Company and
authenticated and delivered by the Trustee to a depositary or pursuant to
such depositary's instructions, all in accordance with this Indenture and
pursuant to an Officer's Certificate, which shall be registered as to
principal and interest in the name of such depositary or its nominee.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered in the register of Securities kept by the Registrar.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after maturity, means
interest payable after maturity.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, any Vice-President, the Treasurer, the Controller, the Secretary,
any Assistant Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the Chief Executive Officer, the President, the Chief
Financial Officer, the Treasurer or principal accounting officer of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides
that an amount less than its principal amount is due and payable upon
acceleration after an Event of Default.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Principal" of a Security means the principal amount due on the
stated maturity of the Security plus the premium, if any, on the Security.
<PAGE>
"Securities" means the Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Subsidiary" means any corporation, partnership or limited liability
company of which the Company, or the Company and one or more Subsidiaries, or
any one or more Subsidiaries, directly or indirectly own (i) in the case of a
corporation, voting securities entitling the holders thereof to elect a
majority of the directors, either at all times or so long as there is no
default or contingency which permits the holders of any other class of
securities to vote for the election of one or more directors, (ii) in the
case of a partnership, at least a majority of the general partnership
interests and at least a majority of total outstanding partnership interests
or (iii) in the case of a limited liability company, at least a majority of
the membership interests.
"TIA" means the Trust Indenture Act of 1939, as amended from time to
time, and as in effect on the date of execution of this Indenture.
"Trustee" means the party named as such above until a successor
becomes such pursuant to this Indenture and thereafter means or includes each
party who is then a trustee hereunder, and if at any time there is more than
one such party, "Trustee" as used with respect to the Securities of any
series means the Trustee with respect to Securities of that series. If
Trustees with respect to different series of Securities are trustees under
this Indenture, nothing herein shall constitute the Trustees co-trustees of
the same trust, and each Trustee shall be the trustee of a trust separate and
apart from any trust administered by any other Trustee with respect to a
different series of Securities.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
<PAGE>
<TABLE>
<CAPTION>
Section 1.02. Other Definitions.
- ------------- ------------------
Term Defined in Section
---- ------------------
<S> <C>
"Bankruptcy Law"...................................... 6.01
"Custodian"........................................... 6.01
"Event of Default".................................... 6.01
"Legal Holiday"....................................... 10.07
"Paying Agent"........................................ 2.03
"redemption price".................................... 3.03
"Registrar"........................................... 2.03
"U.S. Government Obligations"......................... 8.01
</TABLE>
Section 1.03. Incorporation by Reference of Trust Indenture Act.
- ------------- --------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Securities means the Company.
All other terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule under the
TIA have the meanings so assigned to them.
Section 1.04. Rules of Construction.
- ------------- ----------------------
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural
include the singular; and
<PAGE>
(v) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating.
- ------------- ---------------------------------------------------------
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited. The Securities
may be issued in one or more series. There shall be established in or
pursuant to a Board Resolution or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or
in lieu of, other Securities of the series pursuant to this Article
2);
(c) the date or dates on which the principal of the
Securities of the series is payable;
(d) the rate or rates at which the Securities of the series
shall bear interest, if any, or the manner in which such rate or
rates shall be determined, the date or dates from which such
interest shall accrue, the interest payment dates on which such
interest shall be payable and the record dates for the determination
of Holders to whom interest is payable;
(e) the place or places where the principal of and any
interest on Securities of the series shall be payable, if other than
as provided herein;
(f) the price or prices at which (if any), the period or
periods within which (if any) and the terms and conditions upon
which (if other than as provided herein) Securities of the series
may be redeemed, in whole or in part, at the option, or as an
obligation, of the Company;
(g) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series, in whole or in part,
pursuant to any sinking fund or analogous provisions or at the
option of a Holder thereof and the price or prices at which and the
period and periods within which and the terms and conditions upon
which Securities of the series shall be redeemed, purchased or
repaid pursuant to such obligation;
<PAGE>
(h) if other than denominations of $1,000 and any multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(i) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02 hereof;
(j) any addition to or change in the covenants set forth in
Article 4 which applies to Securities of the series;
(k) any Events of Default with respect to the Securities of
a particular series, if not set forth herein;
(l) the Trustee for the series of Securities;
(m) whether the Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities; the
terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual
Securities, and the depositary for such Global Security and
Securities;
(n) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may
modify or delete any provision of this Indenture with respect to
such series; provided, however, that no such term may modify or
delete any provision hereof if imposed by the TIA; and provided,
further, that any modification or deletion of the rights, duties or
immunities of the Trustee hereunder shall have been consented to in
writing by the Trustee).
All Securities of any series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution or in any such indenture supplemental hereto.
The principal of and any interest on the Securities shall be payable
at the office or agency of the Company designated in the form of Security for
the series (each such place herein called the "Place of Payment"); provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address
shall appear in the register of Securities referred to in Section 2.03
hereof.
Each Security shall be in one of the forms approved from time to
time by or pursuant to a Board Resolution, or established in one or more
indentures supplemental hereto. Prior to the delivery of a Security to the
Trustee for authentication in any form approved by or pursuant to a Board
Resolution, the Company shall deliver to the Trustee the Board Resolution by
or pursuant to which such form of Security has been approved, which Board
Resolution shall have attached thereto a true and correct copy of the form of
<PAGE>
Security which has been approved by or pursuant thereto, or, if a Board
Resolution authorizes a specific officer or officers to approve a form of
Security, a certificate of such officer or officers approving the form of
Security attached thereto.
The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be dated the date
of its authentication.
Section 2.02. Execution and Authentication.
- ------------- -----------------------------
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the
Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue upon a
written order of the Company signed by two Officers.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture
to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
- ------------- ---------------------------
The Company shall maintain an office or agency where Securities of a
particular series may be presented for registration of transfer or for
exchange (the "Registrar") and an office or agency where Securities of that
series may be presented for payment (a "Paying Agent"). The Registrar for a
particular series of Securities shall keep a register of the Securities of
that series and of their transfer and exchange. The Company may appoint one
or more co-Registrars and one or more additional paying agents for each
series of Securities. The term "Paying Agent" includes any additional paying
agent. The Company may change any Paying Agent, Registrar or co-Registrar
without prior notice to any Securityholder. The Company shall notify the
Trustee in writing of the name and address of any Agent not a party to this
Indenture.
If the Company fails to maintain a Registrar or Paying Agent for any
series of Securities, the Trustee shall act as such. The Company or any of
its Affiliates may act as Paying Agent, Registrar or co-Registrar.
<PAGE>
Section 2.04. Paying Agent to Hold Money in Trust.
- ------------- ------------------------------------
Whenever the Company has one or more Paying Agents it will, prior to
each due date of the principal of or interest on, any Securities, deposit
with a Paying Agent a sum sufficient to pay the principal (and premium, if
any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent will hold in trust for the benefit of
the Securityholders of the particular series for which it is acting, or the
Trustee, all money held by the Paying Agent for the payment of principal or
interest on the Securities of such series, and that such Paying Agent will
notify the Trustee of any Default by the Company or any other obligor of the
series of Securities in making any such payment and at any time during the
continuance of any such Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
If the Company or an Affiliate acts as Paying Agent, it shall segregate and
hold in a separate trust fund for the benefit of the Securityholders of the
particular series for which it is acting all money held by it as Paying
Agent. The Company at any time may require a Paying Agent to pay all money
held by it to the Trustee. Upon so doing, the Paying Agent (if other than the
Company or an Affiliate of the Company) shall have no further liability for
such money. Upon any bankruptcy or reorganization proceedings relating to the
Company, the Trustee shall serve as Paying Agent for the Securities.
Section 2.05. Securityholder Lists.
- ------------- ---------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Securityholders, separately by series, and shall otherwise comply with TIA
ss. 312(a). If the Trustee is not the Registrar, the Company shall furnish to
the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names
and addresses of Securityholders, separately by series, relating to such
interest payment date or request, as the case may be.
Section 2.06. Transfer and Exchange.
- ------------- ----------------------
Where Securities are presented to the Registrar or a co-Registrar
with a request to register a transfer or to exchange them for an equal
principal amount of Securities of like series of other authorized
denominations, the Registrar shall register the transfer or make the exchange
if its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee shall
authenticate Securities at the Registrar's request.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover
any transfer tax or similar governmental charge payable in connection
<PAGE>
therewith (other than any such transfer tax or similar governmental charge
payable upon exchanges pursuant to Sections 2.10, 3.06 or 9.04).
The Company need not issue, and the Registrar or co-Registrar need
not register the transfer or exchange of, (i) any Security of a particular
series during a period beginning at the opening of business 15 days before
the day of any selection of Securities of that series for redemption under
Section 3.02 and ending at the close of business on the day of selection, or
(ii) any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security of that series being redeemed in part.
Section 2.07. Replacement Securities.
- ------------- -----------------------
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate
a replacement Security of like series if the Company's and the Trustee's
requirements are met. The Trustee or the Company may require an indemnity
bond to be furnished which is sufficient in the judgment of both to protect
the Company, the Trustee, and any Agent from any loss which any of them may
suffer if a Security is replaced. The Company may charge such Holder for its
expenses in replacing a Security.
Every replacement Security is an additional obligation of the Company
and shall be entitled to all the benefit of the Indenture equally and
proportionately with any and all other Securities of the same series.
Section 2.08. Outstanding Securities.
- ------------- -----------------------
The Securities of any series outstanding at any time are all the
Securities of that series authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to
be outstanding and interest on them ceases to accrue.
Except as set forth in Section 2.09 hereof, a Security does not cease
to be outstanding because the Company or an Affiliate holds the Security.
<PAGE>
For each series of Original Issue Discount Securities, the principal
amount of such Securities that shall be deemed to be outstanding and used to
determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the principal
amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination.
When requested by the Trustee, the Company will advise the Trustee of such
amount, showing its computations in reasonable detail.
.ection 2.09. Treasury Securities
- ------------- -------------------
In determining whether the Holders of the required principal amount
of Securities of any series have concurred in any direction, waiver or
consent, Securities owned by the Company or an Affiliate shall be considered
as though they are not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities which the Trustee knows are so
owned shall be so considered.
Section 2.10. Temporary Securities.
- ------------- ---------------------
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a
written order of the Company signed by two Officers of the Company. Temporary
Securities shall be substantially in the form of definitive Securities but
may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities.
Holders of temporary securities shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
- ------------- -------------
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall destroy
such Securities (subject to the record retention requirements of the Exchange
Act). Certification of the destruction of all cancelled Securities shall be
delivered to the Company. The Company may not issue new Securities to replace
Securities that it has paid or that have been delivered to the Trustee for
cancellation.
<PAGE>
Section 2.12. Defaulted Interest.
- ------------- -------------------
If the Company fails to make a payment of interest on any series of
Securities, it shall pay such defaulted interest plus (to the extent lawful)
any interest payable on the defaulted interest, in any lawful manner. It may
elect to pay such defaulted interest, plus any such interest payable on it,
to the Persons who are Holders of such Securities on which the interest is
due on a subsequent special record date. The Company shall notify the Trustee
in writing of the amount of defaulted interest proposed to be paid on each
such Security. The Company shall fix any such record date and payment date
for such payment. At least 15 days before any such record date, the Company
shall mail to Securityholders affected thereby a notice that states the
record date, payment date, and amount of such interest to be paid.
Section 2.13. Special Record Dates.
- ------------- ---------------------
(a) The Company may, but shall not be obligated to, set a record date
for the purpose of determining the identity of Holders entitled to consent to
any supplement, amendment or waiver permitted by this Indenture. If a record
date is fixed, the Holders of Securities of that series outstanding on such
record date, and no other Holders, shall be entitled to consent to such
supplement, amendment or waiver or revoke any consent previously given,
whether or not such Holders remain Holders after such record date. No consent
shall be valid or effective for more than 90 days after such record date
unless consents from Holders of the principal amount of Securities of that
series required hereunder for such amendment or waiver to be effective shall
have also been given and not revoked within such 90-day period.
(b) The Trustee may, but shall not be obligated to, fix any day as a
record date for the purpose of determining the Holders of any series of
Securities entitled to join in the giving or making of any notice of Default,
any declaration of acceleration, any request to institute proceedings or any
other similar direction. If a record date is fixed, the Holders of Securities
of that series outstanding on such record date, and no other Holders, shall
be entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date; provided,
however, that no such action shall be effective hereunder unless taken on or
prior to the date 90 days after such record date.
<PAGE>
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
- ------------- -------------------
If the Company elects to redeem Securities of any series pursuant to
any optional redemption provisions thereof, it shall notify the Trustee of
the redemption date and the principal amount of Securities of that series to
be redeemed.
The Company shall give each notice provided for in this Section in an
Officers' Certificate at least 45 days before the redemption date (unless a
shorter notice period shall be satisfactory to the Trustee), which notice
shall specify the provisions of such Security pursuant to which the Company
elects to redeem such Securities.
If the Company elects to reduce the principal amount of Securities of
any series to be redeemed pursuant to mandatory redemption provisions
thereof, it shall notify the Trustee of the amount of, and the basis for, any
such reduction. If the Company elects to credit against any such mandatory
redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with such notice.
Section 3.02. Selection of Securities to Be Redeemed
- ------------- --------------------------------------
If less than all the Securities of any series are to be redeemed, the
Trustee shall select the Securities of that series to be redeemed by a method
that complies with the requirements of any exchange on which the Securities
of that series are listed, or, if the Securities of that series are not
listed on an exchange, on a pro rata basis or by lot. The Trustee shall make
the selection not more than 75 days and not less than 30 days before the
redemption date from Securities of that series outstanding and not previously
called for redemption. Except as otherwise provided as to any particular
series of Securities, Securities and portions thereof that the Trustee
selects shall be in amounts equal to the minimum authorized denomination for
Securities of the series to be redeemed or any integral multiple thereof.
Provisions of this Indenture that apply to Securities called for redemption
also apply to portions of Securities called for redemption. The Trustee shall
notify the Company promptly in writing of the Securities or portions of
Securities to be called for redemption.
Section 3.03. Notice of Redemption.
- ------------- ---------------------
Except as otherwise provided as to any particular series of
Securities, at least 30 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption to each Holder whose
<PAGE>
Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the terms
of the Securities of the series to be redeemed, plus accrued
interest, if any, to the date fixed for redemption (the "redemption
price");
(3) if any Security is being redeemed in part, the portion
of the principal amount of such Security to be redeemed and that,
after the redemption date, upon surrender of such Security, a new
Security or Securities in principal amount equal to the unredeemed
portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of the
redemption price, interest on Securities called for redemption
ceases to accrue on and after the redemption date;
(7) The paragraph of the series of Securities and/or
Section of any supplemental indenture pursuant to which such
Securities called for redemption are being redeemed; and
(8) the CUSIP number, if any, of the Securities to be
redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that
the Company shall have delivered to the Trustee, at least 45 days prior to
the redemption date, an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such
notice as provided in the preceding paragraph. The notice mailed in the
manner herein provided shall be conclusively presumed to have been duly given
whether or not the Holder receives such notice. In any case, failure to give
such notice by mail or any defect in the notice of the Holder of any Security
shall not affect the validity of the proceeding for the redemption of any
other Security.
Section 3.04. Effect of Notice of Redemption.
- ------------- -------------------------------
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. Upon surrender to the Paying Agent,
such Securities will be paid at the Redemption Price.
<PAGE>
Section 3.05. Deposit of Redemption Price.
- ------------- ----------------------------
On or before the redemption date, the Company shall deposit with the
Paying Agent (or, if the Company or any Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of
all Securities called for redemption on that date other than Securities which
have previously been delivered by the Company to the Trustee for
cancellation. The Paying Agent shall return to the Company any money not
required for that purpose.
Section 3.06. Securities Redeemed in Part.
- ------------- ----------------------------
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense
of the Company a new Security of like series equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities.
- ------------- ----------------------
The Company shall pay or cause to be paid the principal of and
interest on the Securities on the dates and in the manner provided in this
Indenture and the Securities. Principal and interest shall be considered paid
on the date due if the Paying Agent, if other than the Company or an
Affiliate, holds as of 10:00 a.m. Eastern Time on that date immediately
available funds designated for and sufficient to pay all principal and
interest then due.
To the extent lawful, the Company shall pay interest on overdue
principal and overdue installments of interest at the rate per annum borne by
the applicable series of Securities.
Section 4.02. Maintenance of Office or Agency
- ------------- -------------------------------
The Company shall maintain in the Borough of Manhattan, the City of
New York, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee or Registrar) where Securities may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
<PAGE>
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York for such purposes. The Company
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with
Section 2.03.
Section 4.03. Commission Reports.
- ------------- -------------------
The Company shall deliver to the Trustee within 15 days after the
required filing date copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations prescribe) which the
Company is required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act; provided, however the Company shall not be
required to deliver to the Trustee any materials for which the Company has
sought and received confidential treatment by the Commission. The Company
will cause any quarterly and annual reports which it mails to its
stockholders to be mailed to the Holders of the Securities. If the Company is
not subject to the requirements of Section 13 or 15(d) of the Exchange Act,
the Company shall continue to file with the Trustee (in each case within 15
days after the time that such documents would have been filed with the
Commission) such reports, information and other documents as it would file if
it were subject to the requirements of Section 13 or 15(d) of the Exchange
Act (other than such confidential materials referenced above). The Company
also shall comply with the other provisions of TIA ss.
314(a).
Section 4.04. Compliance Certificate.
- ------------- -----------------------
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, an Officers' Certificate (one of the
signers of which shall be the principal accounting officer, principal
financial officer or principal executive officer) stating that in the course
of the performance by the signers of their duties as officers of the Company,
they would normally have knowledge of any failure by the Company to comply
with all conditions, or default by the Company with respect to any covenants,
under this Indenture, and further stating whether or not they have knowledge
of any such failure or default and, if so, specifying each such failure or
default and the nature thereof. For purposes of this Section, such compliance
shall be determined without regard to any period of grace or requirement of
notice provided for in this Indenture. The certificate need not comply with
Section 10.04.
The first certificate delivered pursuant to this Section 4.03 shall
be for the fiscal year ending on _________, 199__.
<PAGE>
Section 4.05. Taxes.
- ------------- ------
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except (i) as contested in good faith by appropriate proceedings and
with respect to which appropriate reserves have been taken in accordance with
GAAP or (ii) where the failure to effect such payment is not adverse in any
material respect to the Holders.
Section 406. Stay, Extension and Usury Laws.
- ------------ -------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted
to the Trustee, but shall suffer and permit the execution of every such power
as though no such law has been enacted.
Section 4.07. Corporate Existence.
- ------------- --------------------
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of
each of its Subsidiaries, in accordance with the respective organizational
documents (as the same may be amended from time to time) of each Subsidiary
and (ii) the rights (charter and statutory), licenses and franchises of the
Company and its Subsidiaries; provided, however, that the Company shall not
be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders.
SECTION 4.08. Payments for Consent.
- ------------- ---------------------
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of the Securities for or as an
inducement to any consent, waiver or amendment of any terms or provisions of
this Indenture or of the Securities or any series thereof unless such
consideration is offered to be paid or agreed to be paid to all Holders of
the Securities of such series that so consent, waive or agree to amend in the
time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
<PAGE>
ARTICLE 5
SUCCESSORS
Section 5.01. When Company May Merge, etc.
- ------------- ----------------------------
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to any Person
unless:
(1) the Company is the surviving corporation or the entity
or Person formed by or surviving any such consolidation or merger
(if other than the Company) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been
made is a corporation organized and existing under the laws of the
United States, any state thereof or the District of Columbia;
(2) the entity or Person formed by or assuming any such
consolidation or merger (if other than the Company) or the entity or
Person to which such sale, assignment, transfer, lease, conveyance
or other disposition shall have been made assumes by supplemental
indenture all the obligations of the Company under the Securities
and this Indenture; and
(3) mmediately prior to and after the transaction no Default
or Event of Default exists.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such
supplemental indenture comply with this Indenture.
Section 5.02. Successor Corporation Substituted.
- ------------- ----------------------------------
Upon any consolidation or merger, or any transfer by the Company
(other than by lease) of all or substantially all of the assets of the
Company in accordance with Section 5.01, the successor corporation formed by
such consolidation or into which the Company is merged or to which such
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect as if such successor corporation had been named as the Company herein.
In the event of any such transfer, the predecessor Company shall be released
and discharged from all liabilities and obligations in respect of the
Securities and the Indenture, and the predecessor Company may be dissolved,
wound up or liquidated at any time thereafter.
<PAGE>
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
- ------------- ------------------
An "Event of Default" occurs with respect to Securities of any
particular series if:
(1) the Company defaults in the payment of interest on any
Security of that series when the same becomes due and payable and
the Default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
any Security of that series when the same becomes due and payable at
maturity, upon redemption or otherwise;
(3) an Event of Default, as defined in the Securities of
that series, occurs and is continuing, or the Company fails to
comply with any of its other agreements in the Securities of that
series or in this Indenture with respect to that series and the
Default continues for the period and after the notice specified
below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of
it or for all or substantially all of its property;
(D) makes a general assignment for the benefit of
its creditors; or
(E) admits in writing its inability generally to
pay its debts as the same become due.
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case;
<PAGE>
(B) appoints a Custodian of the Company or for all
or substantially all of its property; or
(C) orders the liquidation of the Company;
and the order or decree remains unstayed and in effect for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means
any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A Default under clause (3) above is not an Event of Default with
respect to a particular series of Securities until the Trustee or the Holders
of at least 25% in principal amount of the then outstanding Securities of
that series notify the Company of the Default and the Company does not cure
the Default within 30 days after receipt of the notice. The notice must
specify the Default, demand that it be remedied and state that the notice is
a "Notice of Default."
Section 6.02. Acceleration.
- ------------- -------------
If an Event of Default with respect to Securities of any series
(other than an Event of Default specified in clauses (4) and (5) of Section
6.01) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the then outstanding
Securities of that series by notice to the Company and the Trustee, may
declare the unpaid principal (or, in the case of Original Issue Discount
Securities, such lesser amount as may be provided for in such Securities) of
and any accrued interest on all the Securities of that series to be due and
payable on the Securities of that series. Upon such declaration the principal
(or such lesser amount) and interest shall be due and payable immediately. If
an Event of Default specified in clause (4) or (5) of Section 6.01 occurs,
all of such amount shall become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder. The
Holders of a majority in principal amount of the then outstanding Securities
of that series by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default with respect to that series have been
cured or waived except nonpayment of principal (or such lesser amount) or
interest that has become due solely because of the acceleration.
Section 6.03. Other Remedies.
- ------------- ---------------
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal or interest on the Securities of that series
or to enforce the performance of any provision of the Securities of that
series or this Indenture.
<PAGE>
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
- ------------- ------------------------
Subject to Section 9.02, the Holders of a majority in principal
amount of the then outstanding Securities of any series by notice to the
Trustee may waive an existing Default or Event of Default with respect to
that series and its consequences except a Default or Event of Default in the
payment of the principal (including any mandatory sinking fund or like
payment) of or interest on any Security of that series.
Section 6.05. Control by Majority.
- ------------- --------------------
The Holders of a majority in principal amount of the then outstanding
Securities of any series may direct the time, method and place of conducting
any proceeding for any remedy with respect to that series available to the
Trustee or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that is unduly prejudicial to the rights of another Holder of
Securities of that series, or that may involve the Trustee in personal
liability. The Trustee may take any other action which it deems proper which
is not inconsistent with any such direction.
Section 6.06. Limitation on Suits.
- ------------- --------------------
A Holder of Securities of any series may not pursue a remedy with
respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to that series;
(2) the Holders of at least 25% in principal amount of
the then outstanding Securities of that series make a written request
to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested,
the provision of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the then outstanding Securities of that series
do not give the Trustee a direction inconsistent with the request.
<PAGE>
No Holder of any series of Securities may use this Indenture to prejudice the
rights of another Holder of Securities of that series or to obtain a
preference or priority over another Holder of Securities of that series.
Section 6.07. Rights of Holders to Receive Payment.
- ------------- -------------------------------------
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of and interest, if
any, on the Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of the Holder.
Section 6.08. Collection Suit by Trustee.
- ------------- ---------------------------
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing with respect to Securities of any series, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount of principal (or such portion of the
principal as may be specified as due upon acceleration at that time in the
terms of that series of Securities) and interest, if any, remaining unpaid on
the Securities of that series then outstanding, together with (to the extent
lawful) interest on overdue principal and interest, and such further amount
as shall be sufficient to cover the costs and, to the extent lawful, expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and any other amounts due
the Trustee under Section 7.07.
Section 6.09. Trustee May File Proofs of Claim.
- ------------- ---------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings relative
to the Company (or any other obligor on the Securities), its creditors or its
property and shall be entitled to and empowered to collect and receive any
money or other property payable or deliverable on any such claims and to
distribute the same, and any custodian in any such judicial proceedings is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel, and any other amounts due the Trustee under Section
7.07. Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
<PAGE>
Section 6.10. Priorities.
- ------------- -----------
If the Trustee collects any money with respect to Securities of any
series pursuant to this Article, it shall pay out the money in the following
order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07, including payment of all compensation,
expense and liabilities incurred, and all advances made, by
the Trustee and the costs and expenses of collection;
Second: to Securityholders for amounts due and unpaid on
the Securities of such series for principal and
interest, ratably, without preference or priority of
any kind, according to the amounts due and payable
on the Securities of such series for principal and
interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment
to Holders of Securities of any series pursuant to this Section. The Trustee
shall notify the Company in writing reasonably in advance of any such record
date and payment date.
Section 6.11. Undertaking for Costs.
- ------------- ----------------------
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any
party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defense made by the
party litigant. This Section does not apply to a suit by the Trustee, a suit
by a Holder pursuant to Section 6.07 or a suit by Holders of more than 10% in
principal amount of the then outstanding Securities.
<PAGE>
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
- ------------- ------------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) Except during the continuance of an Event of Default known to
the Trustee:
(i) the duties of the Trustee shall be determined solely
by the express provisions of this Indenture or the
TIA and the Trustee need perform only those duties
that are specifically set forth in this Indenture or
the TIA and no others, and no implied covenants or
obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the
truth of the statements and the correctness
of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates
and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer
of the Trustee, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts;
and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction received by it pursuant
to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right or power unless it receives
security and indemnity satisfactory to it against any loss, liability or
expense.
<PAGE>
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Absent written instruction from the Company, the Trustee shall not be
required to invest any such money. Money held in trust by the Trustee need
not be segregated from other funds except to the extent required by law.
Section 7.02. Rights of Trustee.
- ------------- -------------------
Subject to TIA Section 315(a) through (d):
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officers' Certificate or an Opinion of Counsel, or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights
or powers, unless the Trustee's conduct constitutes negligence.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice form the Company shall be sufficient if
signed by an Officer of the Company.
Section 7.03. Individual Rights of Trustee.
- ------------- -----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any
Agent may do the same with like rights. However, the Trustee is subject to
TIA Sections 310(b) and 311.
Section 7.04. Trustee's Disclaimer.
- ------------- ---------------------
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.
<PAGE>
Section 7.05. Notice of Defaults.
- ------------- -------------------
If a Default or Event of Default with respect to the Securities of
any series occurs and is continuing and if it is known to the Trustee, the
Trustee shall mail to all Holders of Securities of that series a notice of
the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment on any such Security, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of such Securityholders.
Section 7.06. Reports by Trustee to Holders.
- ------------- ------------------------------
Within 60 days after each November 15 beginning with November 15,
1995, the Trustee with respect to any series of Securities shall mail to
Holders of Securities of that series as provided in TIA ss. 313(c) a brief
report dated as of such November 15 that complies with TIA ss. 313(a) (if
such report is required by TIA ss. 313(a)). The Trustee shall also comply
with TIA ss. 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the Commission and each stock
exchange on which any of the Securities are listed, as required by TIA ss.
313(d). The Company shall notify the Trustee when the Securities are listed
on any stock exchange.
Section 7.07. Compensation and Indemnity.
- ------------- ---------------------------
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing for its services hereunder.
The Company shall reimburse the Trustee upon written request for all
reasonable out-of-pocket expenses incurred by it. Such expenses shall include
the reasonable compensation and out-of-pocket expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee for any loss or liability
incurred by it, without negligence or bad faith on its part, in connection
with the administration of this Indenture and its duties hereunder. The
Trustee shall notify the Company promptly of any claim for which it may seek
indemnity. The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have separate counsel and the Company shall
pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee in its capacity as Trustee, except money or
property held in trust to pay principal and interest on particular
Securities. Such lien will survive the satisfaction and discharge of this
Indenture.
If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services will be intended to constitute expenses of
administration under any applicable Bankruptcy Law.
<PAGE>
Section 7.08. Replacement of Trustee.
- ------------- -----------------------
A resignation or removal of the Trustee with respect to one or more
or all series of Securities and appointment of a successor Trustee shall
become effective only upon the successor Trustee's acceptance of appointment
as provided in this Section.
The Trustee may resign with respect to one or more or all series of
Securities by so notifying the Company in writing. The Holders of a majority
in principal amount of the then outstanding Securities of any series may
remove the Trustee as to that series by so notifying the Trustee in writing
and may appoint a successor Trustee with the Company's consent. The Company
may remove the Trustee with respect to one or more or all series of
Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the
Company shall promptly appoint a successor Trustee for that series. Within
one year after the successor Trustee with respect to any series takes office,
the Holders of a majority in principal amount of the then outstanding
Securities of that series may appoint a successor Trustee to replace the
successor Trustee appointed by the Company. If a successor Trustee as to a
particular series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding
Securities of that series may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 with respect to any
series, any Holder of Securities of that series who satisfies the
requirements of TIA Section 310(b) may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee for that series.
A successor Trustee as to any series of Securities shall deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee (subject to the
lien provided for in Section 7.07), the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture as to
that series. The successor Trustee shall mail a notice of its succession to
the Holders of Securities of that series.
<PAGE>
Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for
the benefit of the retiring trustee.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) shall contain such
provisions as shall be necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary or desirable to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee; provided, however, that nothing
herein or in such supplemental Indenture shall constitute such Trustee
co-trustees of the same trust and that each such Trustee shall be trustee of
a trust hereunder separate and apart from any trust hereunder administered by
any other such Trustee.
Upon the execution and delivery of such supplemental Indenture the
resignation or removal of the retiring Trustee shall become effective to the
extent provided therein and each such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates.
Section 7.09. Successor Trustee by Merger, etc.
- ------------- ---------------------------------
If the Trustee as to any series of Securities consolidates, merges
or converts into, or transfers all or substantially all of its corporate
trust business to, another corporation, the successor corporation without any
further act shall be the successor Trustee as to that series.
Section 7.10. Eligibility; Disqualification.
- ------------- ------------------------------
Each series of Securities shall always have a Trustee who satisfies
the requirements of TIA ss. 310(a). The Trustee as to any series of
Securities shall always have a combined capital and surplus of at least
[$100,000,000] as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
<PAGE>
Section 7.11 Preferential Collection of Claims Against Company
- ------------ -------------------------------------------------
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Termination of Company's Obligations.
- ------------- -------------------------------------
Except as otherwise provided in this Section, the Company may
terminate its obligations under the Securities of any series and this
Indenture with respect to that series, if:
(a) all Securities of that series previously authenticated
and delivered (other than destroyed, lost or stolen Securities which
have been replaced or Securities of that series which are paid
pursuant to Section 4.01 or Securities of that series for whose
payment money or securities has theretofore been held in trust and
thereafter repaid to the Company, as provided in Section 8.03) have
been delivered to the Trustee for cancellation and the Company has
paid all sums payable by it hereunder with respect to such series;
or
(b) (1) the Securities of that series mature within one
year or all of them are to be called for redemption within one year
after arrangements satisfactory to the Trustee for giving the notice
of redemption; and
(2) the Company irrevocably deposits in trust with the
Trustee during such one-year period, under the terms of an
irrevocable trust agreement in form and substance satisfactory to
the Trustee, as trust funds solely for the benefit of the Holders of
Securities of that series for that purpose, money or U.S. Government
Obligations, or a combination thereof, with the U.S. Government
Obligations maturing as to principal and interest in such amounts
and at such times as are sufficient, without consideration of any
reinvestment of such interest, to pay principal of and interest on
the Securities of that series to maturity or redemption, as the case
may be, and to pay all other sums payable by it hereunder; or
(c) (1) the Company irrevocably deposits in trust with the
Trustee under the terms of an irrevocable trust agreement in form
and substance satisfactory to the Trustee, as trust funds solely for
the benefit of the Holders of Securities of that series for that
purpose, money or U.S. Government Obligations, or a combination
thereof, with the U.S. Government Obligations maturing as to
principal and interest in such amounts and at such times as are
<PAGE>
sufficient, without consideration of any reinvestment of such
interest, to pay principal of and interest on the Securities of that
series to maturity or redemption, as the case may be;
(2) the Company shall have delivered to the Trustee either (A) a
ruling directed to the Trustee received from the Internal Revenue Service to
the effect that the Holders of the Securities of that series will not
recognize income, gain or loss for federal income tax purposes as a result of
the Company's exercise of its option under this clause (c) and will be
subject to federal income tax on the same amount and in the same manner and
at the same times as would have been the case if such option had not been
exercised, or (B) an Opinion of Counsel to the same effect as the ruling
described in subclause (A) above accompanied by a ruling to that effect
published by the Internal Revenue Service, unless there has been a change in
the applicable federal income tax law since the date of this Indenture such
that a ruling from the Internal Revenue Service is no longer required;
(3) the Company has paid or caused to be paid all sums then
payable by the Company hereunder; and
(4) the Company has delivered to the Trustee for that
series an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for in this clause
(c) relating to termination of obligations of the Company have been
complied with.
The Company's obligations under Sections 2.03, 2.04, 2.05, 2.06,
2.07, 4.01 (together with its payment obligations under the Securities of
that series), 7.07, 7.08, 8.03 and 8.04 shall survive until the Securities of
that series are no longer outstanding. Thereafter, and after any discharge
pursuant to clause (a) above, only the Company's obligations in Sections 7.07
and 8.03 shall survive. If and when a ruling from the Internal Revenue
Service or Opinion of Counsel referred to in clause (c)(2) above is able to
be provided specifically without regard to, and not in reliance upon, the
continuance of the Company's obligations under Section 4.01 and its payment
obligations under the Securities of that series, then the Company's payment
obligations under such Section 4.01 and the Securities of that series shall
cease upon delivery to the Trustee of such ruling or Opinion of Counsel and
compliance with the other conditions precedent provided for in clause (c)
above relating to the satisfaction and discharge of this Indenture.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of that series and under this Indenture except for those surviving
obligations specified above.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged. U.S. Government Obligations shall not be
callable at the issuer's option.
<PAGE>
Section 8.02. Application of Trust Money.
- ------------- ---------------------------
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01 with respect to Securities of any
series. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal and interest on the Securities of that series.
Section 8.03. Repayment to Company.
- ------------- ---------------------
The Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest that
remains unclaimed for two years after the date upon which such payment shall
have become due. After payment to the Company, Securityholders entitled to
the money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, provided,
however, that the Trustee or such Paying Agent before being required to make
such repayment may at the expense of the Company mail to each such holder a
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such mailing
any unclaimed balance of such money then remaining will be repaid to the
Company.
ARTICLE 9
SUPPLEMENTS, AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
- ------------- ---------------------------
The Company and the Trustee as to any series of Securities may
supplement or amend this Indenture or the Securities without notice to or the
consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(4) to provide for uncertificated Securities in addition
to or in place of certificated Securities;
<PAGE>
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities,
provided, however, that any such addition, change or elimination (A)
shall neither (i) apply to any Security of any series created prior
to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the Holder
of any such Security with respect to such provision or (B) shall
become effective only when there is no outstanding Security of any
series created prior to the execution of such supplemental indenture
and entitled to the benefit of such provision;
(6) to make any change that does not adversely affect in
any material respect the interests of the Securityholders of any
series; or
(7) to establish additional series of Securities as
permitted by Section 2.01.
Section 9.02. With Consent of Holders.
- ------------- ------------------------
Subject to Section 6.07, the Company and the Trustee as to any
series of Securities may amend this Indenture or the Securities of that
series with the written consent of the Holders of a majority in principal
amount of the then outstanding Securities of each series affected by the
amendment, with each such series voting as a separate class. The Holders of a
majority in principal amount of the then outstanding Securities of any series
may also waive compliance in a particular instance by the Company with any
provision of this Indenture with respect to that series or the Securities of
that series; provided, however, that without the consent of each
Securityholder affected, an amendment or waiver may not:
(1) reduce the percentage of the principal amount of
Securities whose Holders must consent to an amendment or waiver;
(2) reduce the rate of, or change the time for payment of
interest on, any Security;
(3) reduce the principal of or change the fixed maturity of
any Security or alter the redemption provisions with respect thereto;
(4) make any Security payable in money other than that
stated in the Security;
(5) make any change in Section 6.04, 6.07 or 9.02
(this sentence); or
(6) waive a default in the payment of the principal of, or
interest on, any Security, except to the extent otherwise provided
for in Section 6.02.
An amendment or waiver under this Section which waives, changes or
eliminates any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more particular
series of Securities, or which modifies the rights of the Holders
<PAGE>
of Securities of such series with respect to such covenant or other
provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver,
but it shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective,
the Company shall mail to Holders of Securities of each series affected
thereby a notice briefly describing the amendment or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the
Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
Section 9.03. Revocation and Effect of Consents.
- ------------- ----------------------------------
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the
consent is not made on any Security; provided, however, that unless a record
date shall have been established pursuant to Section 2.13(a), any such Holder
or subsequent Holder may revoke the consent as to his Security or portion of
a Security if the Trustee receives the notice of revocation before the date
on which the amendment or waiver becomes effective. An amendment or waiver
shall become effective on receipt by the Trustee of consents from the Holders
of the requisite percentage principal amount of the outstanding Securities of
any series, and thereafter shall bind every Holder of Securities of that
series.
Section 9.04. Notation on or Exchange of Securities.
- ------------- --------------------------------------
If an amendment or waiver changes the terms of a Security: (a) the
Trustee may require the Holder of the Security to deliver it to the Trustee,
the Trustee may place an appropriate notation on the Security about the
changed terms and return it to the Holder and the Trustee may place an
appropriate notation on any Security thereafter authenticated; or (b) if the
Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms.
Section 9.05. Trustee to Sign Amendments, etc.
- ------------- --------------------------------
The Trustee shall receive an Opinion of Counsel stating that the
execution of any amendment or waiver proposed pursuant to this Article is
authorized or permitted by this Indenture. Subject to the preceding sentence,
the Trustee shall sign such amendment or waiver if the same does not
adversely affect the rights, duties, liabilities or immunities of the
Trustee. The Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own rights,
duties, liabilities or immunities under this Indenture or otherwise.
<PAGE>
ARTICLE 10
MISCELLANEOUS
Section 10.01. Indenture Subject to Trust Indenture Act.
- -------------- -----------------------------------------
This Indenture is subject to the provisions of the TIA which are
required to be part of this Indenture, and shall, to the extent applicable,
be governed by such provisions.
Section 10.02. Notices.
- -------------- --------
Any notice or communication is duly given if in writing and
delivered in person or sent by first-class mail (registered or certified,
return receipt requested), telecopier or overnight air courier guaranteeing
next day delivery, addressed as follows:
If to the Company:
Thiokol Corporation
2475 Washington Boulevard
Ogden, Utah 84401
Attention:
If to the Trustee:
===============================
===============================
Attention:[___________________]
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
If the Company mails a notice or communication to Securityholders, it shall
mail a copy to the Trustee at the same time.
<PAGE>
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
Section 10.03. Communication By Holders With Other Holders.
- -------------- --------------------------------------------
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA ss. 312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
- -------------- ---------------------------------------------------
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied
with; and
(b) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate or Opinion.
- -------------- ----------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificate provided for in Section 4.03) shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or
she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion
of Counsel may rely on an officer's certificate or certificates of
public officials.
<PAGE>
Section 10.06. Rules by Trustee and Agents.
- -------------- ----------------------------
The Trustee as to Securities of any series may make reasonable rules
for action by or at a meeting of Holders of Securities of that series. The
Registrar and any Paying Agent or Authenticating Agent may make reasonable
rules and set reasonable requirements for their functions.
Section 10.07. Legal Holidays.
- -------------- ---------------
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York or Ogden, Utah, are not required to be
open. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
Section 10.08. No Recourse Against Others.
- -------------- ---------------------------
A past, present or future director, officer, employee, stockholder
or incorporator, as such, of the Company or any successor corporation shall
not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of, or by
reason of such obligations or their creation. Each Securityholder by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration of issuance of the Securities. Such
waiver may not be effective to waive liabilities under the federal securities
laws and it is the view of the Commission that such a waiver is against
public policy.
Section 10.09. Counterparts.
- -------------- -------------
This Indenture may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
Section 10.10. Governing Law.
- -------------- --------------
The internal laws of the State of New York shall govern this
Indenture and the Securities, without regard to the conflict of laws
provisions thereof.
Section 10.11. Severability.
- -------------- -------------
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
<PAGE>
Section 10.12. Effect of Headings, Table of Contents, etc.
- -------------- -------------------------------------------
The Article and Section headings herein and the table of contents
are for convenience only and shall not affect the construction hereof.
Section 10.13. Successors and Assigns.
- -------------- -----------------------
All covenants and agreements of the Company in this Indenture and
the Securities shall bind its successors and assigns. All agreements of the
Trustee in this Indenture shall bind its successor.
Section 10.14. No Interpretation of Other Agreements.
- -------------- --------------------------------------
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any Subsidiary. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
<PAGE>
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Indenture
as of the date first above written.
THIOKOL CORPORATION
By____________________________
Name:
Title:
[ ],
as Trustee
By____________________________
Name:
Title:
<PAGE>
STATE OF UTAH )
) ss.
CITY OF OGDEN )
On this _____ day of _____________, before me personally came
__________________, to me known, who being by me duly sworn, did depose and
say that he is _________________ of Thiokol Corporation, one of the entities
described in and which executed the above instrument; and that he signed his
name thereto by authority of the Board of Directors of such entity.
------------------------------
Notary Public
(Notarial Seal)
STATE OF )
) ss.
CITY OF )
On this _____ day of _____________, before me personally came
__________________, to me known, who being by me duly sworn, did depose and
say that he is Trust Officer of _____________________________________________
, one of the entities described in and which executed the above instrument;
and that he signed his name thereto by authority of the Board of Directors of
such entity.
------------------------------
Notary Public
(Notarial Seal)
<PAGE>
<TABLE>
<CAPTION>
Page
TABLE OF CONTENTS
<S> <C> <C>
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE.................... 1
Section 1.01. Certain Definitions.......................... 1
Section 1.02. Other Definitions............................ 4
Section 1.03. Incorporation by Reference of Trust..........
Indenture Act................................ 4
Section 1.04. Rules of Construction........................ 4
ARTICLE 2 THE SECURITIES................................................ 5
Section 2.01. Unlimited In Amount, Issuable In Series,
Form and Dating.............................. 5
Section 2.02. Execution and Authentication................. 7
Section 2.03. Registrar and Paying Agent................... 7
Section 2.04. Paying Agent to Hold Money in Trust.......... 7
Section 2.05. Securityholder Lists......................... 8
Section 2.06. Transfer and Exchange........................ 8
Section 2.07. Replacement Securities....................... 9
Section 2.08. Outstanding Securities....................... 9
Section 2.09. Treasury Securities.......................... 10
Section 2.10. Temporary Securities......................... 10
Section 2.11. Cancellation................................. 10
Section 2.12. Defaulted Interest........................... 10
Section 2.13. Special Record Dates......................... 11
ARTICLE 3 REDEMPTION.................................................... 11
Section 3.01. Notices to Trustee........................... 11
Section 3.02. Selection of Securities to Be Redeemed....... 12
Section 3.03. Notice of Redemption......................... 12
Section 3.04. Effect of Notice of Redemption............... 13
Section 3.05. Deposit of Redemption Price.................. 13
Section 3.06. Securities Redeemed in Part.................. 13
ARTICLE 4 COVENANTS..................................................... 13
Section 4.01. Payment of Securities........................ 13
Section 4.02. Maintenance of Office or Agency.............. 14
Section 4.03. Commission Reports........................... 14
Section 4.04. Compliance Certificate....................... 15
Section 4.05. Taxes........................................ 15
Section 4.06. Stay, Extension and Usury Laws............... 15
Section 4.07. Corporate Existence.......................... 15
Section 4.08. Payments for Consent......................... 16
<PAGE>
ARTICLE 5 SUCCESSORS.................................................... 17
Section 5.01. When Company May Merge, etc.................. 17
Section 5.02. Successor Corporation Substituted............ 17
ARTICLE 6 DEFAULTS AND REMEDIES......................................... 18
Section 6.01. Events of Default............................ 18
Section 6.02. Acceleration................................. 19
Section 6.03. Other Remedies............................... 19
Section 6.04. Waiver of Past Defaults...................... 20
Section 6.05. Control by Majority.......................... 20
Section 6.06. Limitation on Suits.......................... 20
Section 6.07. Rights of Holders to Receive Payment......... 21
Section 6.08. Collection Suit by Trustee................... 21
Section 6.09. Trustee May File Proofs of Claim............. 21
Section 6.10. Priorities................................... 22
Section 6.11. Undertaking for Costs........................ 22
ARTICLE 7 TRUSTEE....................................................... 23
Section 7.02. Rights of Trustee............................ 24
Section 7.03. Individual Rights of Trustee................. 24
Section 7.04. Trustee's Disclaimer......................... 24
Section 7.05. Notice of Defaults........................... 25
Section 7.06. Reports by Trustee to Holders................ 25
Section 7.07. Compensation and Indemnity................... 25
Section 7.08. Replacement of Trustee....................... 26
Section 7.09. Successor Trustee by Merger, etc............. 27
Section 7.10. Eligibility; Disqualification................ 27
Section 7.11. Preferential Collection of Claims............
Against Company.............................. 28
ARTICLE 8 DISCHARGE OF INDENTURE........................................ 28
Section 8.01. Termination of Company's Obligations......... 28
Section 8.02. Application of Trust Money................... 29
Section 8.03. Repayment to Company......................... 30
ARTICLE 9 SUPPLEMENTS, AMENDMENTS AND WAIVERS........................... 30
Section 9.01. Without Consent of Holders................... 30
Section 9.02. With Consent of Holders...................... 31
Section 9.03. Revocation and Effect of Consents............ 32
Section 9.04. Notation on or Exchange of Securities........ 32
Section 9.05. Trustee to Sign Amendments, etc.............. 32
<PAGE>
ARTICLE 10 MISCELLANEOUS................................................. 33
Section 10.01. Indenture Subject to Trust Indenture Act..... 33
Section 10.02. Notices...................................... 33
Section 10.03. Communication By Holders With Other Holders.. 34
Section 10.04. Certificate and Opinion as to Conditions.....
Precedent.................................... 34
Section 10.05. Statements Required in Certificate or........
Opinion...................................... 34
Section 10.06. Rules by Trustee and Agents.................. 34
Section 10.07. Legal Holidays............................... 35
Section 10.08. No Recourse Against Others................... 35
Section 10.09. Counterparts................................. 35
Section 10.10. Governing Law................................ 35
Section 10.11. Severability................................. 35
Section 10.12. Effect of Headings, Table of Contents, etc... 35
Section 10.13. Successors and Assigns....................... 35
Section 10.14. No Interpretation of Other Agreements........ 36
</TABLE>
<PAGE>
Exhibit 5
March 15, 1996
Thiokol Corporation
2475 Washington Boulevard
Ogden, Utah 84401
Re: $300,000,000 Aggregate Offering Price of Securities
of Thiokol Corporation
Ladies and Gentlemen:
We have acted as counsel to Thiokol Corporation, a Delaware
corporation (the "Company"), in connection with a registration statement on
Form S-3 (the "Registration Statement") being filed by the Company with the
Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended.
The Company has provided us with a draft prospectus (the "Prospectus")
which is a part of the Registration Statement. The Prospectus provides that
it will be supplemented in the future by one or more supplements to the
Prospectus (each a "Prospectus Supplement"). The Prospectus as supplemented
by various Prospectus Supplements will provide for the registration by the
Company of up to $300,000,000 aggregate offering price of (i) one or more
series of senior, senior subordinated or subordinated debt securities (the
"Debt Securities"), (ii) one or more series of preferred stock, par value
$1.00 per share (the "Preferred Stock"), (iii) shares of common stock, par
value $1.00 per share (the "Common Stock"), or (iv) warrants to purchase
Common Stock, Preferred Stock or Debt Securities (the "Warrants"). The Debt
Securities, Preferred Stock, Common Stock and Warrants are collectively
referred to herein as the "Securities." Any Debt Securities and Preferred
Stock may be exchangeable and/or convertible into shares of Common Stock or
Preferred Stock. The Debt Securities may be issued pursuant to one or more
indentures (collectively, the "Indentures"), in each case between the Company
and a trustee (each, a "Trustee"). The Warrants may be issued pursuant to one
or more warrant agreements (collectively, the "Warrant Agreements"), in each
case between the Company and a financial institution identified therein as
warrant agent (each, a "Warrant Agent").
<PAGE>
Thiokol Corporation
March 15, 1996
Page 2
In our capacity as counsel to the Company in connection with the
Registration Statement, we are generally familiar with the proceedings taken
and proposed to be taken by the Company in connection with the authorization
and issuance of the Securities. For purposes of this opinion, we have assumed
that such proceedings will be timely and properly completed, in accordance
with all requirements of applicable federal Delaware and New York laws, in
the manner presently proposed.
We have made such legal and factual examinations and inquiries,
including an examination of originals and copies certified or otherwise
identified to our satisfaction, of all such documents, corporate records and
instruments of the Company as we have deemed necessary or appropriate for
purposes of this opinion. In our examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, and the conformity to authentic original documents of all
documents submitted to us as copies.
We have been furnished with, and with your consent have exclusively
relied upon, certificates of officers of the Company with respect to certain
factual matters. In addition, we have obtained and relied upon such
certificates and assurances from public officials as we have deemed
necessary.
We are opining herein as to the effect on the subject transaction only
of the federal securities laws of the United States, the General Corporation
Law of the State of Delaware and with respect to opinion number 1 below, the
internal laws of the State of New York, and we express no opinion with
respect to the applicability thereto, or the effect thereon, of the laws of
any other jurisdiction or, in the case of Delaware, any other laws, or as to
any matters of municipal law or the laws of any local agencies within any
state.
Subject to the foregoing and the other qualifications set forth
herein, it is our opinion that, as of the date hereof:
1. When (a) the Registration Statement and any required post-effective
amendment thereto and any and all Prospectus Supplement(s) required by
applicable laws have all become effective under the Securities Act, and (b)
when the Debt Securities have been duly executed and delivered by all parties
thereto, and (c) assuming that the terms of the Indentures as executed and
delivered are as described in the Registration Statement, the Prospectus and
the related Prospectus Supplement(s), and (d) assuming that the Indentures as
executed and delivered do not violate any law applicable to the Company or
result in a default under or breach of any agreement or instrument binding
upon the Company, and (e) assuming that the Indentures as executed and
delivered comply with all requirements and restrictions, if any, applicable
to the Company, whether imposed by any court or governmental or regulatory
body having jurisdiction over the Company, and (f) assuming that the Debt
Securities are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the
Indentures will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with the terms of the
Indentures.
<PAGE>
Thiokol Corporation
March 15, 1996
Page 3
2. When (a) the Debt Securities have been duly established by the
applicable Indentures (including, without limitation, the adoption by the
Board of Directors of the Company of a resolution duly authorizing the
issuance and delivery of the Debt Securities), duly authenticated by the
Trustee and duly executed and delivered on behalf of the Company against
payment therefor in accordance with the terms and provisions of the
applicable Indenture and as contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), and (b) when the
Registration Statement and any required post-effective amendment thereto and
any and all Prospectus Supplement(s) required by applicable laws have all
become effective under the Securities Act, and (c) assuming that the terms of
the Debt Securities as executed and delivered are as described in the
Registration Statement, the Prospectus and the related Prospectus
Supplement(s), and (d) assuming that the Debt Securities as executed and
delivered do not violate any law applicable to the Company or result in a
default under or breach of any agreement or instrument binding upon the
Company, and (e) assuming that the Debt Securities as executed and delivered
comply with all requirements and restrictions, if any, applicable to the
Company, whether imposed by any court or governmental or regulatory body
having jurisdiction over the Company, and (f) assuming that the Debt
Securities are then issued and sold as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the Debt
Securities will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with the terms of the
Debt Securities.
3. When (a) the applicable Warrant Agreement has been duly executed
and delivered, and the terms of the Warrants and of their issuance and sale
have been duly established in conformity with the applicable Warrant
Agreement and applicable law, and (b) when the Warrants have been duly
executed and countersigned in accordance with the applicable Warrant
Agreement relating to such Warrants, and issued and sold in the form and in
the manner contemplated in the Registration Statement, the Prospectus and the
related Prospectus Supplement(s), and (c) when the Registration Statement and
any required post-effective amendment thereto and any and all Prospectus
Supplement(s) required by applicable laws have all become effective under the
Securities Act, and (d) assuming that the terms of the applicable Warrant
Agreement as executed and delivered are as described in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), and (e)
assuming that the applicable Warrant Agreement as executed and delivered does
not violate any law applicable to the Company or result in a default under or
breach of any agreement or instrument binding upon the Company, and (f)
assuming that the applicable Warrant Agreement as executed and delivered
complies with all requirements and restrictions, if any, applicable to the
Company, whether imposed by any court or governmental or regulatory body
heaving jurisdiction over the Company, and (g) assuming that the Warrants are
then issued and sold as contemplated in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), the applicable Warrant
Agreement will constitute a valid and legally binding obligation of the
Company, enforceable against the Company in accordance with the applicable
Warrant Agreement's terms.
3. The Company has the authority pursuant to its Amended and Restated
Certificate of Incorporation (the "Certificate of Incorporation") to issue up
to 25,000,000 shares of Preferred Stock. When a series of Preferred Stock has
been duly established in accordance with the terms of the Certificate
<PAGE>
Thiokol Corporation
March 15, 1996
Page 4
of Incorporation and applicable law, and upon adoption by the Board of
Directors of the Company of a resolution in form and content as required by
applicable law and upon issuance and delivery of and payment for such shares
in the manner contemplated by the Registration Statement, the Prospectus and
the related Prospectus Supplement(s) and by such resolution, such shares of
such series of Preferred Stock (including any Preferred Stock duly issued (i)
upon the exchange or conversion of any shares of Preferred Stock that are
exchangeable or convertible into Preferred Stock, (ii) upon the exercise of
any Warrants exercisable for Preferred Stock or (iii) upon the exchange or
conversion of Debt Securities that are exchangeable or convertible into
Preferred Stock) will be validly issued, fully paid and nonassessable.
4. The Company has the authority pursuant to its Certificate of
Incorporation to issue up to 200,000,000 shares of Common Stock. Upon
adoption by the Board of Directors of the Company of a resolution in form and
content as required by applicable law and upon issuance and delivery of and
payment for such shares in the manner contemplated by the Registration
Statement, the Prospectus and the related Prospectus Supplement(s) and by
such resolution, such shares of Common Stock (including any Common Stock duly
issued (i) upon the exchange or conversion of any shares of Preferred Stock
that are exchangeable or convertible into Common Stock, (ii) upon the
exercise of any Warrants exercisable for Common Stock or (iii) upon the
exchange or conversion of Debt Securities that are exchangeable or
convertible into Common Stock) will be validly issued, fully paid and
nonassessable.
All of the opinions set forth above are subject to the following
exceptions, limitations and qualifications: (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to or affecting the rights and remedies of creditors; (ii)
the effect of general principles of equity, including without limitation,
concepts of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether enforcement is considered in a proceeding in equity or
at law, and the discretion of the court before which any proceeding therefor
may be brought; (iii) the unenforceability under certain circumstances under
law or court decisions of provisions providing for the indemnification of, or
contribution to, a party with respect to a liability where such
indemnification or contribution is contrary to public policy; and (iv) we
express no opinion with respect to whether acceleration of Debt Securities
may affect the collectibility of any portion of the stated principal amount
thereof which might be determined to constitute unearned interest thereon.
To the extent that the obligations of the Company under the Indentures
may be dependent upon such matters, we assume for purposes of this opinion
that the Trustee for each Indenture is duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization; that the
Trustee is duly qualified to engage in the activities contemplated by the
applicable Indenture; that the applicable Indenture has been duly authorized,
executed and delivered by the Trustee and constitutes a legally valid,
binding and enforceable obligation of the Trustee, enforceable against the
Trustee in accordance with its terms; that the Trustee is in compliance,
generally and with respect to acting as Trustee under the applicable
Indenture, with all applicable laws and regulations; and that the Trustee has
the
<PAGE>
Thiokol Corporation
March 15, 1996
Page 5
requisite organizational and legal power and authority to perform its
obligations under the applicable Indenture.
To the extent that the obligations of the Company under the applicable
Warrant Agreement may be dependent upon such matters, we assume for purposes
of this opinion that the Warrant Agent for each Warrant Agreement is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; that the Warrant Agent is duly qualified to
engage in the activities contemplated by the applicable Warrant Agreement;
that the applicable Warrant Agreement has been duly authorized, executed and
delivered by the Warrant Agent and constitutes a legally valid, binding and
enforceable obligation of the Warrant Agent, enforceable against the Warrant
Agent in accordance with its terms; that the Warrant Agent is in compliance,
generally and with respect to acting as Warrant Agent under the applicable
Warrant Agreement, with all applicable laws and regulations; and that the
Warrant Agent has the requisite organizational and legal power and authority
to perform its obligations under the applicable Warrant Agreement.
We consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Legal Matters" in the Prospectus included therein.
Very truly yours,
/s/ Latham & Watkins
<PAGE>
<TABLE>
<CAPTION>
Exhibit 12
The following table sets forth the ratio of earnings to fixed charges for the
Company for the periods indicated.
Quarter Year Ended June 30
Ended ----------------------------------------------------
Dec 31
1995 1995 1994 1993 1992 1991
-------- -------- -------- -------- -------- --------
Earnings before income taxes,
extraordinary item and cumulative
effect of accounting changes per
<S> <C> <C> <C> <C> <C> <C>
consolidated statements of income .............. $ 36,218 $ 76,240 $ 97,768 $101,749 $101,794 $ 88,013
Add back:
Interest expense ............................... 814 9,344 14,347 25,459 24,172 22,348
Interest on rental expense (1) ................. 550 2,100 1,600 1,450 1,300 900
-------- -------- -------- -------- -------- --------
Total fixed charges .......................... 1,364 11,444 15,947 26,909 25,472 23,248
-------- -------- -------- -------- -------- --------
Earnings ......................................... $ 37,582 $ 87,684 $113,715 $128,658 $127,266 $111,261
======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges .............. 27.6 7.7 7.1 4.8 5.0 4.8
======== ======== ======== ======== ======== ========
</TABLE>
(1) Based on an 8% discount factor in the estimated present value of future
operating lease payments.
Note: The quarter ended December 31, 1995, included $27.5 million of interest
income related to income taxes which was partially offset by a $13.1
million restructuring and inventory write off charge. Long-term debt of
$85.5 million was retired in the third quarter of fiscal year 1995
resulting in reduced interest expense in the quarter ended December 31,
1995.
