<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 22, 1997
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------
NORFOLK SOUTHERN CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
VIRGINIA 52-1188014
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>
THREE COMMERCIAL PLACE
NORFOLK, VIRGINIA 23510-2191
(757) 629-2600
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
JAMES C. BISHOP, JR.
EXECUTIVE VICE PRESIDENT
NORFOLK SOUTHERN CORPORATION
THREE COMMERCIAL PLACE
NORFOLK, VIRGINIA 23510-9240
(757) 629-2600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------------
COPIES TO:
VINCENT J. PISANO, ESQ.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, NY 10022
Tel: (212) 735-3000
Fax: (212) 735-2000
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THE REGISTRATION STATEMENT.
------------------------------
If any of the securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
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. /X/
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
OF SECURITIES TO BE TO BE OFFERING PRICE AGGREGATE
REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(2)
<S> <C> <C> <C>
Debt Securities.........................................
Preferred Stock(3)......................................
Depositary Shares(3)....................................
Common Stock(3)(4)......................................
Total............................................... $1,250,000,000 100% $1,250,000,000
<CAPTION>
TITLE OF EACH CLASS
OF SECURITIES TO BE AMOUNT OF
REGISTERED REGISTRATION FEE
<S> <C>
Debt Securities.........................................
Preferred Stock(3)......................................
Depositary Shares(3)....................................
Common Stock(3)(4)......................................
Total............................................... $378,788
</TABLE>
(1) In United States dollars or the equivalent thereof in any other currency or
currencies, currency unit or units, or composite currency or currencies.
Such amount represents the aggregate offering price of any combination of
the Debt Securities, Preferred Stock, Depositary Shares and Common Stock.
(2) Estimated for the sole purpose of computing the registration fee pursuant to
Rule 457(o) under the Securities Act of 1933.
(3) Also includes such indeterminate number of shares of Preferred Stock,
Depositary Shares and Common Stock as may be issued upon conversion of or
exchange for any Debt Securities, Preferred Stock or Depositary Shares that
provide for conversion or exchange into other securities. No separate
consideration will be received for the Preferred Stock, Depositary Shares
and Common Stock issuable upon conversion of or in exchange for Debt
Securities, Preferred Stock or Depositary Shares.
(4) The number of shares of Common Stock registered hereunder is limited to that
which is permissible under Rule 415(a)(4) of the Securities Act.
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.
Pursuant to Rule 429 under the Securities Act, this Registration Statement
contains a combined Prospectus that also relates to $50,000,000 principal amount
of unissued debt securities previously registered pursuant to Registration
Statement on Form S-3 (File No. 33-38595) of Norfolk Southern Corporation. The
filing fee associated with such securities was paid previously with such
Registration Statement. This Registration Statement constitutes Post-Effective
Amendment No. 1 to Registration Statement on Form S-3 (File No. 33-38595)
pursuant to which the total amount of unsold debt securities previously so
registered may be offered and sold as and in any combination of Debt Securities,
Preferred Stock, Depositary Shares and Common Stock, without limitation as to
class of securities, together with the securities registered hereunder, through
the use of the combined Prospectus included herein. In the event any such
previously registered debt securities are offered prior to the effective date of
this Registration Statement, they will not be included in any Prospectus
hereunder.
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<PAGE>
SUBJECT TO COMPLETION--JANUARY 22, 1997
PROSPECTUS
[LOGO]
U.S. $1,300,000,000
NORFOLK SOUTHERN CORPORATION
DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES
AND COMMON STOCK
--------------
Norfolk Southern Corporation (the "Corporation") directly, through agents
designated from time to time or through dealers or underwriters also to be
designated, may offer and issue from time to time (i) debt securities (the "Debt
Securities"), which may be either senior debt securities (the "Senior Debt
Securities") or subordinated debt securities (the "Subordinated Debt
Securities"), in one or more series; (ii) Preferred Stock, without par value
(the "Preferred Stock"), in one or more series, which may be issued in the form
of depositary shares (the "Depositary Shares") evidenced by depositary receipts
and (iii) Common Stock, par value $1.00 per share (the "Common Stock"), on terms
to be determined at the time of sale. The Common Stock is listed on the New York
Stock Exchange under the symbol "NSC." The Debt Securities, the Preferred Stock,
the Depositary Shares and the Common Stock are hereinafter collectively referred
to as the "Securities." The Securities that may be offered pursuant to this
Prospectus will be limited to an aggregate initial public offering price of up
to $1,300,000,000 or the equivalent thereof in one or more foreign currencies,
currency units or composite currencies.
The accompanying Prospectus Supplement will set forth specific terms of the
Securities, including (i) in the case of Debt Securities, specific designation
and denomination (which may be in United States dollars, or in any other
currency or currencies, currency unit or units or composite currency or
currencies), aggregate principal amount, rank, maturity, interest rate (or the
manner of calculation thereof), if any, and time of payment of interest,
purchase price, any terms for redemption, sinking funds, conversion or exchange
and any other specific terms of the Debt Securities; (ii) in the case of a
particular series of Preferred Stock, specific designation, aggregate number of
shares offered, dividend rate (or manner of calculation thereof), dividend
periods (or manner of calculation thereof), liquidation preference, voting
rights, any terms for redemption, whether and on what terms the shares of such
series may be converted into Common Stock at the option of the holder, whether
Depositary Shares representing shares of such series of Preferred Stock will be
offered and, if so, the fraction of a share of Preferred Stock represented by
each depositary share, listing, if any, on a securities exchange and any other
specific terms of such series of Preferred Stock; and (iii) in the case of
Common Stock, the number of shares offered and the purchase price therefor.
-------------------
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.
-------------------
If an agent of the Corporation or a dealer or underwriter is involved in the
sale of the Securities in respect of which this Prospectus is being delivered,
that agent's commission, dealer's purchase price or underwriter's discount is
set forth in, or may be calculated from, the accompanying Prospectus Supplement,
and the net proceeds to the Corporation from such sale will be the purchase
price of such Securities less such commission in the case of an agent, the
purchase price of such securities in the case of a dealer or the public offering
price less such discount in the case of an underwriter, and less, in each case,
the other related issuance expenses. The Corporation 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. Any underwriters, dealers or agents participating in an offering may be
deemed "underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Act"). See "Plan of Distribution" for possible indemnification
arrangements for any agents, dealers or underwriters.
-------------------
<PAGE>
The date of this Prospectus is 1997.
<PAGE>
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Corporation can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549; Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661; and Seven World Trade Center, 13th
Floor, New York, New York 10048. Copies of such material can be obtained by mail
from the Public Reference Section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed fees. The Commission also maintains a
website that contains reports, proxy and information statements and other
information. The website address is http://www.sec.gov. Reports, proxy
statements and other information concerning the Corporation also may be
inspected at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005, where the Corporation's Common Stock is listed.
The Corporation has filed with the Commission a registration statement on
Form S-3 under the Act which relates to the Securities (the "Registration
Statement"). As permitted by the rules and regulations promulgated by the
Commission, this Prospectus does not contain all the information set forth in
the Registration Statement and the exhibits and schedules thereto. For further
information with respect to the Corporation and the Securities, reference hereby
is made to the Registration Statement and to the exhibits and schedules filed
therewith. The Registration Statement may be inspected without charge by anyone
at the office of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, and copies of all or any part thereof may be obtained from the Commission
upon payment of the prescribed fees. Statements contained in this Prospectus as
to the contents of any agreement, instrument or other document referred to
herein are not necessarily complete, and in each instance reference is made to
the full text of the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission. Each such
statement is qualified in its entirety by reference to the full text of each
such agreement, instrument or document.
-------------------
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by the Corporation (File
No. 1-8339) are incorporated in this Prospectus by reference: (1) Annual Report
on Form 10-K for the fiscal year ended December 31, 1995, and (2) Quarterly
Reports on Form 10-Q for the quarters ended March 31, June 30, and September 30,
1996 and (3) Current Report on Form 8-K dated May 9, 1996.
All documents filed by the Corporation pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Securities shall be deemed to be
incorporated by reference in this Prospectus from the respective dates of filing
such documents. Any statement contained in this Prospectus or in a document all
or a portion of which is incorporated or deemed to be incorporated herein by
reference shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated herein
by reference modifies or supersedes such statement. Any statement so modified
shall not be deemed to constitute a part hereof except as so modified, and any
statement so superseded shall not be deemed to constitute a part hereof.
The Corporation will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written request of any such person, a copy of any or all of the foregoing
documents incorporated by reference herein, other than certain exhibits to such
documents. Requests should be directed to: NORFOLK SOUTHERN CORPORATION, THREE
COMMERCIAL PLACE, NORFOLK, VIRGINIA 23510-9219, ATTENTION: CORPORATE SECRETARY
(TELEPHONE NUMBER: (757) 629-2680).
2
<PAGE>
NORFOLK SOUTHERN CORPORATION
Norfolk Southern Corporation (the "Corporation") is a Virginia-based holding
company that owns all the common stock of and controls a major operating
railroad, Norfolk Southern Railway Company, and a diversified motor carrier,
North American Van Lines, Inc. ("NAVL"). The Corporation was incorporated in
July 1980 in the Commonwealth of Virginia. In June 1982, the Corporation
acquired control of Norfolk and Western Railway Company ("NW") and Southern
Railway Company ("Southern"). On December 31, 1990, all the common stock of NW
was transferred to Southern and Southern changed its name to Norfolk Southern
Railway Company ("NS Railway"). NS Railway controls NW. On June 21, 1985, the
Corporation acquired control of NAVL.
The Corporation's rail subsidiaries form a single interterritorial system,
extending over approximately 14,400 miles of road in twenty states, primarily in
the Southeast and Midwest, and the Province of Ontario, Canada. NAVL provides
household moving and specialized handling freight services in the United States
and Canada, and offers certain motor carrier services worldwide.
On October 23,1996, the Corporation announced its intention to commence an
all-cash tender offer for Conrail, a Pennsylvania corporation. On October 24,
1996, Atlantic Acquisition Corporation, a Pennsylvania corporation and a wholly
owned subsidiary of the Corporation, offered to purchase all outstanding shares
of Conrail's common stock and Series A ESOP Convertible Junior Preferred Stock
(collectively, the "Shares"), including, in each case, the associated Common
Stock Purchase Rights, at a price of $100 per share--approximately $9.1 billion
in the aggregate. Shares tendered in the offer or acquired in any subsequent
merger would be held in a voting trust pending regulatory approval by the
Surface Transportation Board. The offer followed the October 15 announcement
that Conrail had entered into a merger agreement with CSX Corporation ("CSX"),
whereby Conrail stockholders would receive $92.50 in cash per share for up to 40
percent of their Shares and receive CSX common stock for the balance of their
Shares. On November 6, 1996, CSX and Conrail announced that CSX had raised the
cash portion of its offer to $110 per Share and left unchanged the ratio
pursuant to which certain Conrail stockholders would receive shares of CSX
common stock. On November 8,1996, the Corporation announced that it had
increased its all-cash offer to $110 per share--approximately $10.0 billion in
the aggregate. On December 19, 1996, CSX and Conrail announced that CSX was
adding preferred stock (convertible into CSX common stock) to its offer--a
feature said to be worth $16 per share. On December 20, 1996, the Corporation
announced that it had increased its all-cash offer to $115 per
share--approximately $11 billion in the aggregate--and on January 13, 1997, the
Corporation announced that it would offer to purchase up to 8,200,000 Shares
(approximately 9.9%), the approximate maximum number of shares the Corporation
can buy without triggering Conrail's anti-takeover defenses, for $115 per share
on the sole condition that Conrail stockholders disapprove at a special meeting
certain management recommendations designed to facilitate the merger with CSX.
At that special meeting on January 17, 1997, Conrail stockholders did disapprove
those recommendations. Accordingly, on January 22, 1997, the Corporation amended
its all-cash tender offer for all outstanding Shares to reduce the number of
Shares sought to 8,200,000.
The Conrail board repeatedly has affirmed its commitment to a merger with
CSX and consistently has recommended that its stockholders not tender into any
offer made by the Corporation. The Corporation intends to pursue its tender
offer.
The Corporation's executive offices are located at Three Commercial Place,
Norfolk, Virginia 23510-2191 (telephone number: (757) 629-2600). Unless the
context indicates otherwise, references herein to the Corporation are to Norfolk
Southern Corporation and its consolidated subsidiaries.
USE OF PROCEEDS
Except as may be otherwise set forth in an accompanying Prospectus
Supplement, the Corporation intends to use the net proceeds from the sale of the
Securities primarily (i) to purchase shares of Common Stock from time to time in
open market transactions pursuant to an ongoing share purchase program commenced
by the Corporation in 1987, (ii) to retire all or a portion of the Corporation's
short-term indebtedness, (iii) to acquire new or used property, including
without limitation locomotives and
3
<PAGE>
rolling stock, (iv) to meet general corporate purposes and (v) to accomplish any
other purpose approved by a duly authorized officer of the Corporation.
RATIOS OF EARNINGS TO FIXED CHARGES
For purposes of computing the ratios of earnings to fixed charges, earnings
represent income before income taxes, plus interest expenses (including a
portion of rental expenses representing an interest factor) and subsidiaries'
preferred dividend requirements, less the equity in undistributed earnings of
20%-49% owned companies. Fixed charges represent interest expenses (including a
portion of rental expense representing an interest factor) plus capitalized
interest and subsidiaries' preferred dividend requirements on a pre-tax basis.
The following table sets forth the ratio of earnings to fixed charges of the
Corporation for each period indicated:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
- -------------------- ---------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
(BASED ON UNAUDITED
DATA)
<CAPTION>
1996 1995 1995 1994 1993(1,2) 1992 1991
- --------- --------- --------- --------- ------------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
6.88 6.75 6.70 6.66 5.67 5.67 1.71(3)
</TABLE>
- ------------------------------
(1) 1993 results include a $54 million increase in the provision for income
taxes reflecting a 1% increase in the federal income tax rate, which reduced
net income by $54 million, or $0.39 per share. 1993 transportation operating
expenses include a $50 million restructuring charge for the disposition of
two NAVL trucking businesses. 1993 also includes the cumulative effect of
certain required accounting changes (see Note 2 below), which increased 1993
earnings by $223 million, or $1.60 per share.
(2) Effective January 1, 1993, the Corporation adopted SFAS 106 "Employers'
Accounting for Postretirement Benefits Other Than Pensions," SFAS 109
"Accounting for Income Taxes," and SFAS 112 "Employers' Accounting for
Postemployment Benefits." The Corporation recognized these accounting
changes on the immediate recognition basis. Therefore, the cumulative effect
on years prior to 1993 of adopting these new accounting standards was as
follows: SFAS 106 and 112 increased pretax expenses by $392 million ($243.5
million after-tax) and reduced earnings per share by $1.74; and SFAS 109
increased net income by $466.8 million and increased earnings per share by
$3.34.
(3) 1991 transportation operating expenses include a $680 million special
charge, primarily comprised of costs for labor force reductions and the
write-down of the goodwill portion of the Corporation's investment in NAVL.
This charge reduced net income by $498 million, or $3.37 per share.
Because the Corporation has no outstanding Preferred Stock, the ratio of
earnings to the sum of fixed charges and preferred stock dividends is the same
as the ratio of earnings to fixed charges.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series of Debt Securities offered (the "Offered
Debt Securities") by any Prospectus Supplement or Prospectus Supplements will be
described therein. The Senior Debt Securities will be issued under an indenture,
dated as of January 15, 1991 (the "Senior Indenture"), between the Corporation
and First Trust of New York, National Association, as successor trustee (the
"Senior Trustee"), a copy of the form of which Senior Indenture is filed as an
exhibit to the Registration Statement. The Subordinated Debt Securities are to
be issued under a separate Indenture (the "Subordinated Indenture") between the
Company and First Trust of New York, National Association, as Trustee (the
"Subordinated Trustee"), a copy of the form of which Subordinated Indenture is
filed as an exhibit to the Registration Statement. The Senior Indenture and the
Subordinated Indenture are sometimes referred to collectively as the
"Indentures" and the Senior Trustee and the Subordinated Trustee are sometimes
referred to collectively as the "Trustees."
The following summaries of certain provisions of the Indentures do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Indentures,
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<PAGE>
including the definitions therein of certain terms. Wherever particular sections
or defined terms of the Indentures are referred to, it is intended that such
sections or defined terms shall be incorporated herein by reference. Capitalized
terms not otherwise defined herein shall have the meanings given to them in the
Indentures. The following sets forth certain general terms and provisions of the
Senior Debt Securities and the Subordinated Debt Securities. Further terms of
any Offered Debt Securities will be set forth in the applicable Prospectus
Supplement.
Because the Corporation is a holding company, its rights and the rights of
its creditors, including the Holders of the Debt Securities offered hereby, to
participate in any distribution of the assets of any subsidiary upon the
liquidation or recapitalization of such subsidiary will be subject to the prior
claims of that subsidiary's creditors except to the extent that the Corporation
itself may be a creditor with recognized prior claims against that subsidiary.
The Indentures do not contain any provisions that limit the Corporation's
ability to incur indebtedness. Holders of Debt Securities will not have the
benefit of any specific covenants or provisions in the applicable Indenture or
Debt Securities that would protect them in the event the Corporation engages in
or becomes the subject of a highly leveraged transaction, other than any
covenants described in any applicable Prospectus Supplement, and the limitations
on consolidation, merger and sale of assets substantially as an entirety to any
person as described below under "--Consolidation, Merger and Sale of Assets."
Such covenants may not be waived or modified by the Corporation or its Board of
Directors, although holders of Debt Securities could waive or modify such
covenants as more fully described below under "--Modification and Waiver."
GENERAL
The Indentures do not limit the aggregate principal amount of Debt
Securities that may be issued thereunder and provide that Debt Securities may be
issued from time to time in series. Unless otherwise specified in the applicable
Prospectus Supplement, the Debt Securities will be unsecured obligations of the
Corporation. Unless otherwise specified in the Prospectus Supplement, the Senior
Debt Securities when issued will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Corporation. The Subordinated Debt Securities
when issued will be subordinated in right of payment to the prior payment in
full of all Senior Indebtedness (as defined in the applicable supplemental
Subordinated Indenture) of the Corporation as described below under
"--Subordination of Subordinated Debt Securities" and in the applicable
Prospectus Supplement.
The applicable Prospectus Supplement will also describe the following terms
of any Offered Debt Securities: (1) the title of Offered Debt Securities; (2)
any limit on the aggregate principal amount of Offered Debt Securities; (3) the
date or dates on which Offered Debt Securities will mature; (4) the rate or
rates per annum at which Offered Debt Securities will bear interest, if any, or
the formula or provision pursuant to which such rate or rates are determined and
the date from which such interest, if any, will accrue; (5) the dates on which
such interest, if any, on Offered Debt Securities will be payable and the
Regular Record Dates for such Interest Payment Dates; (6) any mandatory or
optional sinking fund or analogous provisions; (7) the date, if any, after
which, and the price or prices at which, Offered Debt Securities may, pursuant
to any optional or mandatory redemption provisions, be redeemed and the other
detailed terms and provisions of any such optional or mandatory redemption
provisions; (8) the currency or currencies of payment of principal, premium, if
any, and/or interest, if any, on Offered Debt Securities; (9) whether Offered
Debt Securities are to be issued in whole or part in the form of a Global Note
or Notes and, if so, the identity of the Depositary for such Global Note or
Notes; (10) the terms and conditions, if any, upon which a Global Note or Notes
may be exchanged in whole or in part for other definitive Offered Debt
Securities; (11) any index used to determine the amount of payments of
principal, premium, if any, and/or interest, if any, on Offered Debt Securities;
(12) the applicability of any provisions described under "Satisfaction and
Discharge of Indenture"; (13) any covenants applicable to such Debt Securities;
(14) the terms and conditions, if any, pursuant to which Offered Debt Securities
are or may be
5
<PAGE>
convertible or exchangeable into Preferred Stock, Depositary Shares, Common
Stock or other securities of the Corporation; and (15) any other terms of the
series of Offered Debt Securities.
Unless otherwise provided in the applicable Prospectus Supplement,
principal, premium, if any, and/or interest, if any, on Offered Debt Securities
will be payable, and the transfer of Offered Debt Securities will be
registrable, at the office of the applicable Trustee, except that, at the option
of the Corporation, interest may be paid by mailing a check to the address of
the person entitled thereto as such address appears on the Security Register.
Offered Debt Securities may be issuable in whole or in part in the form of
one or more Global Notes, as described below under "Global Notes." Unless
otherwise indicated in the Prospectus Supplement, Debt Securities will be issued
only in fully registered form without coupons and in minimum denominations of
$100,000 or any integral multiples of $1,000 in excess thereof. One or more
Global Notes will be issued in a denomination or aggregate denominations equal
to the aggregate principal amount of Outstanding Debt Securities of the series
to be represented by such Global Note or Notes. The Prospectus Supplement
relating to a series of Offered Debt Securities denominated in a foreign or
composite currency will specify the denomination thereof. No service charge will
be made for any transfer or exchange of Debt Securities, but the Corporation may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Debt Securities may be issued as Original Issue Discount Securities to be
sold at a substantial discount below their principal amount. Special federal
income tax and other considerations applicable thereto will be described in the
applicable Prospectus Supplement.
GLOBAL NOTES
Debt Securities of a series may be issued in whole or in part in the form of
one or more Global Notes that will be deposited with, or on behalf of, a
depositary (the "Depositary") identified in the applicable Prospectus
Supplement, which also shall describe the specific terms of the depositary
arrangement. The Corporation anticipates that the following provisions will
apply to all depositary arrangements.
Upon the issuance of a Global Note, the Depositary for such Global Note will
credit, on its book-entry registration and transfer system, the respective
principal amounts of Debt Securities represented by such Global Note to the
accounts of institutions that have accounts with such Depositary
("Participants"). The accounts to be credited shall be designated by the
underwriters or agents of such Debt Securities or, if such Debt Securities are
offered and sold directly by the Corporation, by the Corporation. Ownership of
beneficial interests in a Global Note will be limited to Participants or persons
that may hold interests through Participants. Ownership of beneficial interests
in such Global Note will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the Depositary for such Global Note
(with respect to interests of Participants) or by Participants or persons that
hold through Participants (with respect to interests of persons other than
Participants). For such purposes, the laws of some states may require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to own,
transfer or pledge beneficial interests in a Global Note.
So long as the Depositary for a Global Note, or its nominee, is the
registered owner of such Global Note, such Depositary or such nominee, as the
case may be, will be considered the sole owner or Holder of Debt Securities
represented by such Global Note for all purposes under the Indenture. Except as
set forth below, owners of beneficial interests in a Global Note will not be
entitled to have Debt Securities of the series represented by such Global Note
registered in their names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in definitive form and will not be
considered the owners or holders thereof under the Indenture. Accordingly, each
person owning a beneficial interest in the Global Note 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
6
<PAGE>
of a Holder under the applicable Indenture. The Indentures provide that the
Depositary may grant proxies and otherwise authorize Participants to take any
action a Holder is entitled to take under the applicable Indenture. The
Corporation understands that under existing industry practice, in the event that
the Corporation requests any action of Holders or a beneficial owner desires to
take any action a Holder is entitled to take, the Depositary would authorize the
Participants to take such action and that the Participants would authorize
beneficial owners owning through such Participants to take such action or would
otherwise act upon the instructions of beneficial owners owning through such
Participants.
Payment of principal, premium, if any, and/or interest, if any, on Debt
Securities registered in the name of or held by a Depositary or its nominee will
be made to the Depositary or its nominee, as the case may be, as the registered
owner or the Holder of the Global Note representing such Debt Securities. None
of the Corporation, the Trustees, any Paying Agent or the Registrar for such
Debt Securities will have any responsibility or liability with respect to the
records relating to or payments made on account of beneficial ownership
interests in a Global Note for such Debt Securities or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
The Corporation expects that the Depositary for Debt Securities of a series,
upon receipt of any payment of principal, premium, if any, and/or interest, if
any, in respect of a Global Note, will immediately credit Participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Global Note as shown on the records of such
Depositary. The Corporation also expects that payments by Participants to owners
of beneficial interests in such Global Note held through such Participants will
be governed by standing instructions and customary practices, as is now the case
with securities held for the accounts of customers in bearer form or registered
in "street name," and will be the responsibility of such Participants.
A Global Note may not be transferred except as a whole by the Depositary for
such Global Note to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary. A Global
Note is exchangeable for Debt Securities registered in the names of persons
other than the Depositary with respect to such Global Note or its nominee only
if (1) such Depositary notifies the Corporation that it is unwilling or unable
to continue as Depositary for such Global Note or if at any time such Depositary
ceases to be a clearing agency registered under the Exchange Act and, in either
case, a successor Depositary is not appointed by the Corporation within 90 days,
(2) the Corporation executes and delivers to the applicable Trustee a Company
Order that all such Global Notes shall be exchangeable or (3) there shall have
occurred and be continuing an Event of Default or an event which, with the
giving of notice or lapse of time, or both, would constitute an Event of Default
with respect to those Debt Securities. Any Global Note that is exchangeable
pursuant to the preceding sentence shall be exchangeable for Debt Securities
registered in such names as the Depositary with respect to such Global Note
shall direct.
If a Depositary for Notes of a series is at any time unwilling or unable to
continue as depositary, or if at any time such Depositary ceases to be a
clearing agency registered under the Exchange Act, and, in either case, a
successor Depositary is not appointed by the Corporation within 90 days or if
there shall have occurred and be continuing an Event of Default or an event
which, with the giving of notice or lapse of time, or both, would constitute an
Event of Default with respect to such Notes, then the Corporation will issue
Notes of such series in definitive form in exchange for all Global Notes
representing the Notes of such series. In addition, the Corporation may at any
time and in its sole discretion determine not to have the Notes of a series
represented by Global Notes and in such event, will issue Notes of such series
in definitive form in exchange for all Global Notes representing such Notes. In
any such instance, an owner of a beneficial interest in a Global Note will be
entitled to physical delivery in definitive form of Notes of the series
represented by such Global Note equal in principal amount to such beneficial
interest and to have such Notes registered in its name.
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EVENTS OF DEFAULT
The Indentures define an Event of Default with respect to Debt Securities of
any series as any of the following events: (1) failure to pay principal of or
any premium on any Debt Security of that series when due; (2) failure to pay any
interest on any Debt Security of that series when due, continued for 30 days;
(3) failure to pay any sinking fund installment with respect to any Debt
Security of that series when due; (4) failure to perform any other covenant of
the Corporation in the applicable Indenture (other than a covenant included in
the applicable Indenture solely for the benefit of a series of Debt Securities
other than that series), continued for 90 days after written notice as provided
in the Indenture; (5) acceleration of Debt Securities or any other indebtedness
for borrowed money, in an aggregate principal amount exceeding $50,000,000, of
the Corporation or any Significant Subsidiary (within the meaning of the federal
securities laws) under the terms of the instrument or instruments under which
such indebtedness is issued or secured, if such acceleration is not annulled, or
such indebtedness is not discharged, or a sum of money sufficient to discharge
in full such indebtedness is not deposited in trust, within 10 days after
written notice as provided in the Indenture; (6) certain events of bankruptcy,
insolvency or reorganization; and (7) any other Event of Default provided with
respect to Debt Securities of that series.
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, either the applicable Trustee or the
Holders of at least 25% in aggregate principal amount of the Outstanding
Securities of that series by notice as provided in the applicable Indenture may
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Notes, such portion of the principal amount as may be
specified in the terms of that series) of all Debt Securities of that series to
be due and payable immediately. 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 for payment of money has been obtained by the Trustee with
respect to that series, the Holders of a majority in aggregate principal amount
of Outstanding Securities of that series may, under certain circumstances,
rescind and annul such acceleration.
The Indentures provide that the applicable Trustee will not be under any
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to such Trustee reasonable indemnity. Subject to such provisions for the
indemnification of the Trustees, the Holders of a majority in aggregate
principal amount of the Outstanding 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 of exercising any trust or power conferred on the
Trustee, with respect to the Debt Securities of that series.
The Corporation is required to furnish to the applicable Trustee annually a
statement as to the performance by the Corporation of certain of its obligations
under the appropriate Indenture and as to any default in such performance.
CONVERSION OR EXCHANGE OF DEBT SECURITIES
If so indicated in the applicable Prospectus Supplement with respect to a
particular series of Offered Debt Securities, such series will be convertible or
exchangeable into Preferred Stock, Depositary Shares or Common Stock or other
securities of the Corporation on the terms and conditions set forth therein.
Such terms will include provisions as to whether conversion is mandatory, at the
option of the Holder or at the option of the Corporation, and may include
provisions pursuant to which the number of shares of Preferred Stock or Common
Stock or other securities of the Corporation to be received by the holders of
such Debt Securities will be calculated according to the market price of the
Preferred Stock, Depositary Shares, Common Stock or other securities of the
Corporation as of the time stated in the applicable Prospectus Supplement. See
"Description of Capital Stock."
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SUBORDINATION OF SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will be direct, unsecured obligations of
the Corporation, subordinate in right of payment to the extent set forth in the
Subordinated Indenture and the applicable supplemental Subordinated Indenture to
all Senior Indebtedness including all Senior Debt Securities (in each case as
defined in the applicable supplemental Subordinated Indenture). Except to the
extent otherwise set forth in the applicable Prospectus Supplement and
supplemental Subordinated Indenture, the Subordinated Indenture does not contain
any restriction on the amount of Senior Indebtedness that the Corporation may
incur.
The terms of the subordination of a series of Subordinated Debt Securities,
together with the definition of Senior Indebtedness related thereto, will be as
set forth in the applicable supplemental Subordinated Indenture and Prospectus
Supplement.
The Subordinated Debt Securities will not be subordinated to indebtedness of
the Corporation that is not Senior Indebtedness, and the creditors of the
Corporation who do not hold Senior Indebtedness will not benefit from the
subordination provisions described herein. In the event of the bankruptcy or
insolvency of the Corporation before or after maturity of the Subordinated Debt
Securities, such other creditors would rank PARI PASSU with holders of the
Subordinated Debt Securities, subject, however, to the broad equity powers of
the federal bankruptcy court pursuant to which such court may, among other
things, reclassify the claims of any series of Subordinated Debt Securities into
a class of claims having a different relative priority with respect to the
claims of such other creditors or any other claims against the Corporation.
SATISFACTION AND DISCHARGE OF INDENTURE
The Indentures provide generally that the Corporation may terminate its
obligations under the applicable Indenture with respect to Debt Securities of
any series if all the Debt Securities of such series previously authenticated
and delivered (other than lost, destroyed or stolen Debt Securities of such
series that have been replaced or paid) have been delivered to the Trustee for
cancellation and the Corporation has paid all sums payable by it thereunder, or
if the Corporation irrevocably deposits with the applicable Trustee (1)
sufficient funds in the currency in which Debt Securities of such series are
denominated to pay the principal, premium, if any, and/or interest, if any, to
Stated Maturity (or redemption) on Debt Securities of such series and/or (2)
such amount of direct obligations of, or obligations the principal of and
interest, if any, on which are fully guaranteed by, the government which issued
the currency in which the Debt Securities are denominated, and which are not
subject to prepayment, redemption or call, as will, through the payment of
principal and interest, if any, thereon in accordance with their terms, be
sufficient to pay when due, the principal, premium, if any, and/or interest, if
any, to Stated Maturity (or redemption) on, Debt Securities of such series. As a
condition to defeasance, the Corporation must deliver to the applicable Trustee
an Opinion of Counsel to the effect that the Holders of such Debt Securities
will not recognize gain or loss on such Debt Securities for federal income tax
purposes solely as a result of such defeasance and will be subject to federal
income tax in the same amounts and at the same times as would have been the case
if such defeasance had not occurred. In the event of any such defeasance,
Holders of Debt Securities must look to the deposited money for payment.
MODIFICATION AND WAIVER
Modifications and amendments of the applicable Indenture may be made by the
Corporation and the applicable Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of each
series affected by such modification or amendment; PROVIDED, HOWEVER, that no
such modification or amendment may, without the consent of the Holder of each
Outstanding Security affected thereby, (1) change the stated maturity date of
the principal of, or any installment of principal of, premium, if any, or
interest, if any, on, any Debt Security, (2) reduce the principal, premium, if
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any, and/or interest, if any, on any Debt Security, (3) reduce the amount of
principal of an Original Issue Discount Debt Security payable upon acceleration
of the maturity thereof, (4) change the place or currency of payment of
principal, premium, if any, and/or interest, if any, on any Debt Security, (5)
impair the right to institute suit for the enforcement of any payment on or with
respect to any Debt Security, (6) reduce the percentage in principal amount of
Outstanding Securities of any series, the consent of the Holders of which is
required for modification or amendment of the Indenture or for waiver of
compliance with certain provisions of the applicable Indenture or for waiver of
certain defaults, (7) modify the conversion provisions applicable to convertible
Debt Securities in a manner adverse to the Holders thereof or (8) modify the
subordination provisions applicable to any series of Debt Securities in a manner
adverse to the Holders thereof.
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series may, on behalf of all Holders of Debt Securities of
that series, waive, insofar as that series is concerned, compliance by the
Corporation with certain restrictive provisions of the Indenture. The Holders of
a majority in aggregate principal amount of the Outstanding Securities of each
series may, on behalf of all Holders of Debt Securities of that series, waive
any past default under the applicable Indenture with respect to Debt Securities
of that series, except (1) a default in the payment of principal, premium, if
any, and/or interest, if any, on any Debt Security of such series and (2) in
respect of a covenant or provision of the Indenture which cannot be modified or
amended without the consent of the Holder of each Outstanding Security of such
series affected.
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Corporation, without the consent of the Holders of a majority in
aggregate principal amount of the Outstanding Securities under the Indentures,
may not consolidate with or merge into, or transfer or lease its assets
substantially as an entirety to, any corporation (which, as defined in the
applicable Indenture, includes corporations, associations, companies and
business trusts), unless (1) the successor corporation is a corporation
organized and existing under the laws of the United States of America or a state
thereof or the District of Columbia and assumes the Corporation's obligations on
the Debt Securities and under the Indentures, (2) after giving effect to the
transaction no Event of Default, and no event which, after notice or lapse of
time, would become an Event of Default, shall have occurred and be continuing
and (3) certain other conditions are met.
CONCERNING THE TRUSTEE
First Trust of New York, National Association, is the Trustee under each of
the Indentures and has been appointed by the Corporation as Security Registrar
and Paying Agent with regard to the Debt Securities.
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 exercising any remedy available to the
applicable Trustee, subject to certain exceptions. Each Indenture provides that
if an Event of Default occurs (and is not cured) with respect to a series of
Debt Securities, the applicable Trustee will be required, in the exercise of its
power, to use the degree of care of a prudent man in the conduct of his own
affairs. Subject to such provisions, no Trustee will be under any obligation to
exercise any of its rights or powers under the Indentures at the request of any
Holder of Debt Securities of such series, unless such Holder first shall have
offered to such Trustee security and indemnity satisfactory to such Trustee
against any loss, liability or expense and then only to the extent required by
the terms of the applicable Indenture.
GOVERNING LAW
Each Indenture provides that it and the Debt Securities will be governed by,
and construed in accordance with, the laws of the State of New York.
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DESCRIPTION OF CAPITAL STOCK
The Corporation's Restated Articles of Incorporation (the "Articles of
Incorporation") authorize issuance of up to 450,000,000 shares of Common Stock,
par value $1.00 per share, and up to 25,000,000 shares of Preferred Stock,
without par value. As of September 30, 1996, 125,088,459 shares of Common Stock
were outstanding and no shares of Preferred Stock had been issued.
The Board of Directors of the Corporation has the power, without further
action by the stockholders unless action is required at the time by applicable
laws or regulations or by the terms of any outstanding Preferred Stock, to issue
Preferred Stock in one or more series and to fix the designations, preferences
and voting rights, and relative, participating, optional and other special
rights, and the qualifications, limitations and restrictions applicable thereto.
The rights of Holders of any Preferred Stock offered hereby (the "Offered
Preferred Stock") will be subject to, and may be affected adversely by, the
rights of Holders of any Preferred Stock that may be issued in the future.
Issuance of shares of Preferred Stock by the Corporation may have the effect,
under certain circumstances, alone or in combination with certain of the
provisions (described below) of the Articles of Incorporation, of rendering more
difficult or discouraging an acquisition of the Corporation deemed undesirable
or not in the best interests of the Corporation by the Board of Directors.
OFFERED PREFERRED STOCK
The following is a description of certain general terms and provisions of
Offered Preferred Stock. The particular terms and provisions of any series of
Offered Preferred Stock will be described in the applicable Prospectus
Supplement. If so indicated in a Prospectus Supplement, the terms and provisions
of any such series may differ from the terms set forth below. The summary of
terms and provisions of Offered Preferred Stock contained in this Prospectus
does not purport to be complete and is subject to, and qualified in its entirety
by, the provisions of the Articles of Incorporation and the Certificate of
Amendment relating to a specific series of the Offered Preferred Stock (the
"Certificate of Amendment"), which will be in the form filed as an exhibit to or
incorporated by reference into the Registration Statement of which this
Prospectus is a part at or prior to the time of issuance of such series of
Offered Preferred Stock.
The Board of Directors is authorized to determine for each series of Offered
Preferred Stock, and the Prospectus Supplement shall set forth with respect to
such series: (1) the number of shares that constitute such series, (2) the
dividend rate (or the method of calculation thereof) on the shares of such
series, (3) the dividend periods (or the method of calculation thereof), (4) the
voting rights of the shares, (5) the liquidation preference and any other rights
of the shares of such series upon any liquidation or winding-up of the
Corporation, (6) whether or not and on what terms the shares of such series will
be subject to redemption at the option of the Corporation, (7) whether and on
what terms the shares of such series will be convertible into shares of Common
Stock of the Corporation, (8) whether Depositary Shares representing shares of
such series of Preferred Stock will be offered and, if so, the fraction of a
share of such series of Offered Preferred Stock represented by each Depositary
Share (see "Depositary Shares" below), (9) whether the shares of such series of
Offered Preferred Stock will be listed on a securities exchange and (10) any
other rights and privileges and any qualifications, limitations or restrictions
of such rights or privileges of such series.
DIVIDENDS
Except as otherwise set forth in the applicable Certificate of Amendment and
Prospectus Supplement, Holders of shares of Offered Preferred Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out of
funds of the Corporation legally available therefor, a cash dividend payable at
such dates and at such rates per share per annum as are set forth in the
applicable Prospectus Supplement.
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Unless otherwise set forth in the applicable Prospectus Supplement, each
series of Offered Preferred Stock will be junior as to dividends to any
Preferred Stock that may be issued in the future that is expressly senior as to
dividends to such Offered Preferred Stock. If at any time the Corporation has
failed to pay accrued dividends upon any such outstanding senior Preferred Stock
at the time such dividends are payable, the Corporation may not pay any dividend
on the Offered Preferred Stock or redeem or otherwise repurchase shares of such
Offered Preferred Stock until such accumulated but unpaid dividends on such
senior Preferred Stock have been paid or set aside for payment in full by the
Corporation.
No dividends may be declared or paid or set apart for payment on any
Preferred Stock ranking on parity as to dividends with outstanding Offered
Preferred Stock unless there shall also be or have been declared and paid or set
apart for payment on the outstanding shares of Offered Preferred Stock dividends
for all dividend payment periods of the Offered Preferred Stock ending on or
before the dividend payment date of such parity Preferred Stock, ratably in
proportion to the respective amounts of dividends, (i) accumulated and unpaid or
payable on such parity Preferred Stock, on the one hand, and (ii) accumulated
and unpaid or payable through the dividend payment period of the Offered
Preferred Stock next preceding such dividend payment date, on the other hand.
Except as set forth above, dividends (other than in Common Stock) may not be
paid or declared and set aside for payment and no other distributions may be
made upon the Common Stock or on any other Preferred Stock of the Corporation
ranking junior to or on parity as to dividends with outstanding Offered
Preferred Stock, nor may any Common Stock or such other Preferred Stock of the
Corporation be redeemed, purchased or otherwise acquired by the Corporation for
any consideration, or any payment be made to or available for a sinking fund for
the redemption of any shares of such stock; PROVIDED, HOWEVER, that any monies
theretofore deposited in any sinking fund with respect to any Preferred Stock in
compliance with the provisions of such sinking fund may thereafter be applied to
the purchase or redemption of such Preferred Stock in accordance with the terms
of such sinking fund, regardless of whether at the time of such applications
full cumulative dividends upon shares of the Offered Preferred Stock outstanding
on the last dividend payment date shall have been paid or declared and set apart
for payment; and PROVIDED, FURTHER,that any such junior or parity Preferred
Stock or Common Stock may be converted into or exchanged for stock of the
Corporation ranking junior to the Offered Preferred Stock as to dividends.
The amount of dividends payable for the initial dividend period or any
period shorter than a full dividend period shall be computed on the basis of a
360-day year of twelve 30-day months. Accrued but unpaid dividends will not bear
interest.
CONVERTIBILITY
No series of Offered Preferred Stock will be convertible into, or
exchangeable for, other securities or property except as set forth in the
applicable Certificate of Amendment and Prospectus Supplement.
REDEMPTION AND SINKING FUND
No series of Offered Preferred Stock will be redeemable or receive the
benefit of a sinking fund except as set forth in the applicable Certificate of
Amendment and Prospectus Supplement.
LIQUIDATION RIGHTS
In the event of any liquidation, dissolution or winding-up of the
Corporation, the holders of shares of each series of Offered Preferred Stock are
entitled to receive out of assets of the Corporation available for distribution
to stockholders, before any distribution of assets is made to Holders of (1) any
other shares of Preferred Stock ranking junior to such series of Offered
Preferred Stock as to rights upon liquidation, dissolution or winding-up and (2)
Common Stock, liquidating distributions per share in the
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amount of the liquidation preference specified in the applicable Certificate of
Amendment and Prospectus Supplement for such series of Offered Preferred Stock,
plus dividends accrued and accumulated but unpaid to the date of final
distribution; but the Holders of each series of Offered Preferred Stock will not
be entitled to receive the liquidating distribution of, plus such dividends on,
such shares until the liquidation preference of any shares of the Corporation's
capital stock ranking senior to such series of Offered Preferred Stock as to the
rights upon liquidation, dissolution or winding-up shall have been paid (or a
sum set aside therefor sufficient to provide for payment) in full. If upon any
liquidation, dissolution or winding-up of the Corporation, the amounts payable
in respect of Offered Preferred Stock and any other Preferred Stock ranking as
to any such distribution on a parity with Offered Preferred Stock are not paid
in full, the Holders of Offered Preferred Stock and such other parity Preferred
Stock will share ratably in any such distribution of assets in proportion to the
full respective preferential amount to which they are entitled. Unless otherwise
specified in the applicable Certificate of Amendment and Prospectus Supplement
for a series of Offered Preferred Stock, after payment of the full amount of the
liquidating distribution to which they are entitled, the Holders of shares of
Offered Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Corporation. Neither a consolidation or merger of
the Corporation with another corporation or other entity nor a sale of
securities shall be considered a liquidation, dissolution or winding-up of the
Corporation.
VOTING RIGHTS
Holders of Offered Preferred Stock will not have any voting rights except as
set forth below or in the applicable Certificate of Amendment and Prospectus
Supplement or as otherwise from time to time required by law. Whenever dividends
on a series of Offered Preferred Stock or any other class or series of stock
ranking on a parity with such series of Offered Preferred Stock with respect to
the payment of dividends shall be in arrears for dividend periods, whether or
not consecutive, containing in the aggregate a number of days equivalent to six
calendar quarters, the Holders of shares of such series of Offered Preferred
Stock (voting separately as a class with all other series of Preferred Stock
upon which like voting rights have been conferred and are exercisable) will be
entitled to vote for the election of two of the authorized number of directors
of the Corporation at the next annual meeting of stockholders and at each
subsequent meeting until all dividends accumulated on such series of Offered
Preferred Stock shall have been fully paid or set apart for payment. The term of
office of all directors elected by the holders of such Offered Preferred Stock
shall terminate immediately upon the termination of the rights of the Holders of
such Offered Preferred Stock to vote for directors. Unless otherwise set forth
in the applicable Certificate of Amendment and Prospectus Supplement, Holders of
shares of Offered Preferred Stock will have one vote for each share held.
So long as any shares of any series of Offered Preferred Stock remain
outstanding, the Corporation shall not, without the consent of Holders of at
least two thirds of the shares of such series of Offered Preferred Stock
outstanding at the time (voting separately as a class with all other series of
Preferred Stock upon which like voting rights have been conferred and are
exercisable) amend, alter or repeal the provisions of the Articles of
Incorporation or of the resolutions contained in the Certificate of Amendment
relating to such series of Offered Preferred Stock, whether by merger,
consolidation or otherwise, so as materially adversely to affect any power,
preference or special right of such series of Offered Preferred Stock or the
Holders thereof; PROVIDED, HOWEVER, that any increase in the amount of the
authorized Common Stock or authorized Preferred Stock or any increase or
decrease in the number of shares of any series of Preferred Stock or the
creation and issuance of other series of Common Stock or Preferred Stock ranking
senior to, on a parity with or junior to Preferred Stock as to dividends and
upon liquidation, dissolution or winding-up shall not be deemed materially
adversely to affect such powers, preferences or special rights.
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MISCELLANEOUS
The Holders of Offered Preferred Stock will have no preemptive rights.
Offered Preferred Stock, upon issuance against full payment of the purchase
price therefor, will be fully paid and nonassessable. Shares of Offered
Preferred Stock redeemed or otherwise reacquired by the Corporation shall resume
the status of authorized and unissued shares of Preferred Stock undesignated as
to series and shall be available for subsequent issuance. There are no
restrictions on repurchase or redemption of Offered Preferred Stock while there
is any arrearage on sinking fund installments except as may be set forth in an
applicable Certificate of Amendment and Prospectus Supplement. The liquidation
preference is not necessarily indicative of the price at which the Offered
Preferred Stock actually will trade on or after the date of issuance. Payment of
dividends on any series of Offered Preferred Stock may be restricted by loan
agreements, indentures and other transactions heretofore or hereafter entered
into by the Corporation. The accompanying Prospectus Supplement or information
incorporated by reference will describe any material contractual restrictions on
dividend payments.
NO OTHER RIGHTS
The shares of a series of Offered Preferred Stock will have only those
preferences, voting powers and relative, participating, optional or other
special rights as are set forth above or in the applicable Certificate of
Amendment and Prospectus Supplement, the Articles of Incorporation or as
otherwise required by law.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for each series of Offered Preferred Stock
will be designated in the applicable Prospectus Supplement.
DEPOSITARY SHARES
GENERAL
The Corporation may, at its option, elect to offer fractional shares of
Offered Preferred Stock (the "Depositary Shares"), rather than full shares of
Offered Preferred Stock. As described below, in the event such election is made,
the Corporation will issue receipts for Depositary Shares, each of which will
represent a fraction of a share of a particular series of Offered Preferred
Stock as set forth in the applicable Prospectus Supplement.
The shares of any series of Offered Preferred Stock represented by
Depositary Shares will be deposited under a Deposit Agreement (the "Deposit
Agreement") among the Corporation, a depositary to be named in the applicable
Prospectus Supplement (the "Preferred Stock Depositary") and the Holders from
time to time of depositary receipts evidencing Depositary Shares issued pursuant
to the Deposit Agreement (the "Depositary Receipts"). Subject to the terms of
the Deposit Agreement, each Holder of a Depositary Share will be entitled, in
proportion to the applicable fraction of a share of Offered Preferred Stock
represented by such Depositary Share, to all the rights and preferences of
Offered Preferred Stock represented thereby (including without limitation,
dividend, voting, redemption, conversion and liquidation rights).
Depositary Receipts will be distributed to those persons purchasing the
fractional shares of the related series of Offered Preferred Stock. The forms of
Deposit Agreement and Depositary Receipt will be filed as exhibits to or
incorporated by reference into the Registration Statement of which this
Prospectus is a part at or prior to the time of issuance of such Depository
Receipts. The following summary is qualified in its entirety by reference to
such exhibits. Immediately following the issuance of shares of a series of
Offered Preferred Stock by the Corporation, the Corporation will deposit such
shares with the Preferred Stock Depositary, which will then issue and deliver
Depositary Receipts to the
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purchasers thereof. Depositary Receipts will be issued evidencing only whole
Depositary Shares and each may evidence any number of whole Depositary Shares.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends or other
cash distributions received in respect of the related series of Offered
Preferred Stock to the record holders of Depositary Shares relating to such
series of Offered Preferred Stock in proportion to the number of such Depositary
Shares owned by such Holders.
The Preferred Stock Depositary will distribute any non-cash distribution
received by it to the record Holders of Depositary Shares entitled thereto in
proportion to the number of Depositary Shares owned by such holders, unless the
Preferred Stock Depositary determines that such distribution cannot be made
proportionately among such Holders or that it is not feasible to make such
distributions, in which case the Preferred Stock Depositary may, with the
approval of the Corporation, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or other property thus received,
or any part thereof, at such place or places and upon such terms as it may deem
proper.
The amounts distributed in any of the foregoing cases will be reduced by any
amounts required to be withheld by the Corporation or the Preferred Stock
Depositary on account of taxes or other governmental charges.
REDEMPTION OF DEPOSITARY SHARES
If a series of Offered Preferred Stock underlying the Depositary Shares is
subject to redemption, the Depositary Shares will be redeemed from the proceeds
received by the Preferred Stock Depositary resulting from any redemption, in
whole or in part, of such series of Preferred Stock held by the Preferred Stock
Depositary. The redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price per share payable with respect to
such series of Offered Preferred Stock. If the Corporation redeems shares of a
series of Offered Preferred Stock held by the Preferred Stock Depositary, the
Preferred Stock Depositary will redeem as of the same redemption date the number
of Depositary Shares representing the shares of Offered Preferred Stock so
redeemed. If less than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by lot or substantially
equivalent method determined by the Preferred Stock Depositary.
After the date fixed for redemption, the Depositary Shares called for
redemption no longer will be deemed to be outstanding, and all rights of the
Holders of the Depositary Shares will cease, except the right to receive the
money or other property payable upon such redemption and any money or other
property to which the Holders of such Depositary Shares were entitled upon such
redemption, upon surrender to the Preferred Stock Depositary of the Depositary
Receipts evidencing such Depositary Shares. Any funds deposited by the
Corporation with the Preferred Stock Depositary for any Depositary Shares that
the Holders thereof fail to redeem will be returned to the Corporation after a
period of two years from the date such funds are so deposited.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the Holders of any series of
Offered Preferred Stock are entitled to vote, the Preferred Stock Depositary
will mail the information contained in such notice of meeting to the record
Holders of the Depositary Shares relating to such series of Offered Preferred
Stock. Each record Holder of such Depositary Shares on the record date (which
will be the same date as the record date for the related series of Offered
Preferred Stock) will be entitled to instruct the Preferred Stock Depositary as
to the exercise of the voting rights pertaining to the number of shares of the
series of
15
<PAGE>
Offered Preferred Stock represented by such Holder's Depositary Shares. The
Preferred Stock Depositary will endeavor, insofar as practicable, to vote or
cause to be voted the number of shares of Offered Preferred Stock represented by
such Depositary Shares in accordance with such instructions, provided the
Preferred Stock Depositary receives such instructions sufficiently in advance of
such meeting to enable it to so vote or cause to be voted the shares of Offered
Preferred Stock, and the Corporation will agree to take all reasonable action
that may be deemed necessary by the Preferred Stock Depositary in order to
enable the Preferred Stock Depositary to do so. The Preferred Stock Depositary
will abstain from voting shares of Offered Preferred Stock to the extent it does
not receive specific instructions from the Holders of Depositary Shares
representing such Offered Preferred Stock.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of the Depositary Receipts at the corporate trust office of
the Preferred Stock Depositary and upon payment of the taxes, charges and fees,
if any, provided for in the Deposit Agreement and subject to the terms thereof,
the Holder of the Depositary Shares evidenced thereby will be entitled to
delivery at such office, to or upon such Holder's order, of the number of whole
shares of the related series of Offered Preferred Stock and any money or other
property, if any, represented by such Depositary Shares. Holders of Depositary
Shares will be entitled to receive whole shares of the related series of Offered
Preferred Stock, but Holders of such whole shares of Offered Preferred Stock
will not be entitled thereafter to deposit such shares of Offered Preferred
Stock with the Preferred Stock Depositary or to receive Depositary Shares
therefor. If the Depositary Receipts delivered by the Holder evidence a number
of Depositary Shares in excess of the number of Depositary Shares representing
the number of whole shares of the related series of Offered Preferred Stock to
be withdrawn, the Preferred Stock Depositary will deliver to such Holder or upon
such Holder's order at the same time a new Depositary Receipt evidencing such
excess number of Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provisions of the Deposit Agreement may at any time and from time to time be
amended by agreement between the Corporation and the Preferred Stock Depositary.
However, any amendment that materially adversely affects the rights of the
Holders of Depositary Shares will not be effective unless such amendment has
been approved by the Holders of at least a majority of the Depositary Shares
then outstanding. Every Holder of a Depositary Receipt at the time such
amendment becomes effective will be deemed, by continuing to hold such
Depositary Receipt, to be bound by the Deposit Agreement as so amended.
Notwithstanding the foregoing, in no event may any amendment impair the right of
any Holder of any Depositary Shares, upon surrender of the Depositary Receipts
evidencing such Depositary Shares and subject to any conditions specified in the
Deposit Agreement, to receive shares of the related series of Offered Preferred
Stock and any money or other property, if any, represented thereby, except in
order to comply with mandatory provisions of applicable law. The Deposit
Agreement may be terminated by the Corporation at any time upon not less than 60
days' prior written notice to the Preferred Stock Depositary, in which case, on
a date that is not later than 30 days after the date of such notice to the
Preferred Stock Depositary shall deliver or make available for delivery to
Holders of Depositary Shares, upon surrender of the Depositary Receipts
evidencing such Depositary Shares, such number of whole or fractional shares of
the related series of Offered Preferred Stock as are represented by such
Depositary Shares. The Deposit Agreement shall terminate automatically after all
outstanding Depositary Shares have been redeemed or there has been a final
distribution in respect of the related series of Offered Preferred Stock in
connection with any liquidation, dissolution or winding-up of the Corporation
and such final distribution has been distributed to the Holders of Depositary
Shares.
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<PAGE>
CHARGES OF DEPOSITARY
The Corporation will pay all transfer and other taxes and the governmental
charges arising solely from the existence of the depositary arrangements. The
Corporation will pay the charges of the Preferred Stock Depositary, including
charges in connection with the initial deposit of the related series of Offered
Preferred Stock and the initial issuance of the Depositary Shares and all
withdrawals of shares of the related series of Offered Preferred Stock, except
that Holders of Depositary Shares will pay transfer and other taxes and
governmental charges and such other charges as are expressly provided in the
Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to the
Corporation written notice of its election to do so, and the Corporation may at
any time remove the Depositary, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depositary, which successor
Preferred Stock Depositary must be appointed within 60 days after delivery of
the notice of resignation or removal and must be a bank or trust corporation
having its principal office in the United States and having a combined capital
and surplus of at least $50,000,000.
MISCELLANEOUS
The Preferred Stock Depositary will forward to the Holders of Depositary
Shares all reports and communications from the Corporation that are delivered to
the Preferred Stock Depositary and which the Corporation is required to furnish
to the Holders of the Offered Preferred Stock.
Neither the Preferred Stock Depositary nor the Corporation will be liable if
it is prevented or delayed by law or any circumstance beyond its control in
performing its obligations under the Deposit Agreement. The obligations of the
Corporation and the Preferred Stock Depositary under the Deposit Agreement will
be limited to performance with best judgment and in the good faith of their
duties thereunder, except that they are liable for gross negligence and willful
misconduct in the performance of their duties thereunder, and they will not be
obligated to appear in, prosecute or defend any legal proceeding in respect of
any Depositary Receipts, Depositary Shares or series of Offered Preferred Stock
unless indemnity, satisfactory in their sole discretion is furnished. The
Preferred Stock Depositary and the Corporation may rely on advice of legal
counsel or accountants of their choice, or information provided by persons
presenting Preferred Stock for deposit, Holders of Depositary Shares or other
persons believed in good faith to be competent and on documents believed to be
genuine.
The Preferred Stock Depositary's corporate trust office will be identified
in the applicable Prospectus Supplement and unless otherwise set forth in the
applicable Prospectus Supplement will act as transfer agent and registrar for
Depositary Receipts; if shares of a series of Offered Preferred Stock are
redeemable, the Preferred Stock Depositary also will act as redemption agent for
the corresponding Depositary Receipts.
COMMON STOCK
Except as otherwise provided by law, the holders of Common Stock are
entitled to one vote for each share held of record on all matters submitted to a
vote of stockholders. There are no cumulative voting rights with respect to the
election of directors. Holders of Common Stock are entitled to receive ratably
such dividends as may be declared by the Board of Directors out of legally
available funds. In the event of dissolution of the Corporation, they will be
entitled to share ratably in all assets remaining after payment of liabilities
and amounts owed in respect of outstanding Offered Preferred Stock. Holders of
Common Stock have no preemptive rights and have no right to convert their Common
Stock into any other securities.
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The transfer agent and registrar for the Common Stock is The Bank of New
York.
CERTAIN PROVISIONS OF ARTICLES OF INCORPORATION AND VIRGINIA LAW
The Articles of Incorporation contains certain provisions that may have an
effect of delaying, deferring or preventing a change of control of the
Corporation. The Articles of Incorporation provide that the Board shall consist
of three classes of directors, each such class serving a three-year term ending
in a successive year. This provision may make it more difficult to effect a
takeover of the Corporation because it generally would take two annual meetings
of stockholders for an acquiring party to elect a majority of the Board. As a
result, the classified Board may discourage proxy contests for the election of
directors or purchases of a substantial block of stock because such
classification could operate to prevent obtaining control of the Board in a
relatively short period of time.
In addition, the Virginia Stock Corporation Act (the "Virginia SCA")
restricts transactions between a corporation and certain affiliates and
potential acquirors. The summary below is necessarily general and is not
intended to be a complete description of all the features and consequences of
those provisions, and it is qualified in its entirety by reference to the
statutory provisions contained in the Virginia SCA.
AFFILIATED TRANSACTIONS
Sections 13.1-725-727.1 of the Virginia SCA govern "Affiliated
Transactions." Affiliated Transactions include certain mergers and share
exchanges, certain material dispositions of corporate assets not in the ordinary
course of business, any dissolution of a corporation proposed by or on behalf of
an Interested Shareholder (defined as any beneficial owner of more than 10% of
any class of the voting securities of a Virginia corporation) and
reclassifications, including reverse stock splits, recapitalizations or mergers
of a corporation with its subsidiaries, or distributions or other transactions
that have the effect of increasing the percentage of voting shares beneficially
owned by an Interested Shareholder by more than 5%.
Subject to certain exceptions discussed below, the provisions governing
Affiliated Transactions require that, during three years following the date upon
which any stockholder becomes an Interested Shareholder, any Affiliated
Transaction must be approved by the affirmative vote of holders of two thirds of
the outstanding shares of the corporation entitled to vote, other than the
shares beneficially owned by the Interested Shareholder, and by a majority (but
not less than two) of the Disinterested Directors. A Disinterested Director is
defined as a member of a corporation's board of directors who (i) was a member
before the later of (a) January 1, 1988 and (b) the date on which an Interested
Shareholder became an Interested Shareholder and (ii) was recommended for
election by, or was elected to fill a vacancy and received the affirmative vote
of, a majority of the Disinterested Directors then on such corporation's board
of directors.
At the expiration of the three-year period after a stockholder becomes an
Interested Shareholder, an Affiliated Transaction generally must be approved by
the affirmative vote of the holders of two thirds of the outstanding shares of
the corporation entitled to vote, other than those beneficially owned by the
Interested Shareholder. The principal exceptions to this voting requirement are
either that the transaction be approved by a majority of the corporation's
Disinterested Directors or that the transaction satisfy certain fair price
requirements of the statute. In general, the fair price requirements provide
that the stockholders must receive the highest per share price for their shares
that was paid by the Interested Shareholder for its shares or the fair market
value of the shares. The fair price requirements also mandate that, during the
three years preceding the announcement of the proposed Affiliated Transaction,
all required dividends have been paid and no special financial accommodations
have been accorded the Interested Shareholder, unless approved by a majority of
the Disinterested Directors.
None of the foregoing limitations and special voting requirements applies,
INTER ALIA, to a transaction with an Interested Shareholder who has been an
Interested Shareholder continuously since January 26,
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<PAGE>
1988 or who became an Interested Shareholder by gift or inheritance from such a
person or whose acquisition of shares making such person an Interested
Shareholder was approved by a majority of the Disinterested Directors of the
corporation.
These provisions were designed to deter certain takeovers of Virginia
corporations. In addition, the Virginia SCA provides that, by affirmative vote
of the majority of the voting shares other than shares owned by an Interested
Shareholder, a corporation may adopt, by meeting certain voting requirements, an
amendment to its articles of incorporation or bylaws providing that the
Affiliated Transactions provisions shall not apply to the corporation. The
Corporation has not adopted such an amendment.
Currently, no stockholder of the Corporation owns or controls 10% or more of
the Corporation's Common Stock, and there are no Interested Shareholders as
defined by the Virginia SCA.
CONTROL SHARE ACQUISITIONS
Sections 13.1-728-728.8 of the Virginia SCA governing Control Share
Acquisitions also is designed to afford stockholders of a public corporation
incorporated in Virginia protection against certain types of non-negotiated
acquisitions in which a person, entity or group ("Acquiring Person") seeks to
gain voting control of that corporation. With certain enumerated exceptions, the
statute applies to acquisitions of shares of a corporation that would result in
an Acquiring Person's ownership of the corporation's shares entitled to vote in
the election of directors falling within any one of the following ranges: 20% to
33-1/3%, 33-1/3% to 50% or 50% or more (each, a "Control Share Acquisition").
Shares that are the subject of a Control Share Acquisition ("Control Shares")
will not be entitled to voting rights unless the holders of a majority of the
"Disinterested Shares" vote at an annual or special meeting of stockholders of
the corporation to give Control Shares voting rights. Disinterested Shares do
not include shares owned by the Acquiring Person or by officers and inside
directors of the target corporation.
Under certain circumstances, the statute permits an Acquiring Person to
require the directors to call a special stockholders' meeting for the purpose of
considering granting voting rights to Control Shares. As a condition to having
this matter considered at either an annual or special meeting, the Acquiring
Person must provide stockholders with detailed disclosures about its identity,
the method and financing of the Control Share Acquisition and any plans to
engage in certain transactions with, or to make fundamental changes to, the
corporation, its management or business. Under certain circumstances, the
statute grants dissenters' rights to stockholders who vote against granting
voting rights to Control Shares. The Virginia Control Share Acquisitions statute
also enables a corporation to make provisions for redemption of Control Shares
with no voting rights.
Among the acquisitions specifically excluded from the statute are
acquisitions that are part of certain negotiated transactions to which the
corporation is a party and that, in the case of mergers or share exchanges, have
been approved by the corporation's stockholders under other provisions of the
Virginia SCA.
A corporation may opt-out of the statute, which the Corporation has not
done, by so providing in its articles of incorporation or bylaws.
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PLAN OF DISTRIBUTION
The Corporation may sell Securities to one or more underwriters for public
offering and sale by them or may sell Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale of
the Securities will be named in the Prospectus Supplement.
Underwriters may offer and sell Securities at a fixed price or prices, which
may be changed, or from time to time at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. The Corporation also may offer and sell Securities in exchange for one
or more of its outstanding issues of debt. The Corporation from time to time
also may authorize underwriters acting as the Corporation's agents to offer and
sell Securities upon terms and conditions set forth in any Prospectus
Supplement. In connection with the sale of Securities, underwriters may be
deemed to have received compensation from the Corporation in the form of
underwriting discounts or commissions and also may receive commissions from
purchasers of 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 Corporation 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. Underwriters, 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 under the Act.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Corporation, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Act.
LEGAL MATTERS
The validity of the Securities will be passed upon for the Corporation by
William A. Noell, Jr., Esq., Corporate Counsel for the Corporation, Norfolk,
Virginia, (or by such other senior corporate counsel as may be designated by the
Corporation) and for any underwriters by counsel named in the applicable
Prospectus Supplement. Mr. Noell, in his capacity as Corporate Counsel for the
Corporation, is a participant in various employee benefit and incentive plans,
including stock option plans, offered to employees of the Corporation.
EXPERTS
The consolidated financial statements and schedules of the Corporation as of
December 31, 1995 and 1994, and for each of the three years in the three-year
period ended December 31, 1995, have been incorporated by reference herein and
in the Registration Statement in reliance upon the report incorporated by
reference herein of KPMG Peat Marwick LLP, independent certified public
accountants, and upon the authority of said firm as experts in accounting and
auditing. The report of KPMG Peat Marwick LLP refers to changes in accounting
methods related to income taxes, postretirement benefits and postemployment
benefits.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth estimated expenses and costs (other than
underwriting discounts and commissions) expected to be incurred in connection
with the issuance and distribution of the securities registered hereby:
<TABLE>
<S> <C>
SEC registration fee........................................... $ 378,788
Printing costs................................................. $ 40,000
Legal fees and expenses........................................ $ 400,000
Accounting fees and expenses................................... $ 150,000
Trustees' fees................................................. $ 40,000
Fees of rating agencies........................................ $ 60,000
Miscellaneous.................................................. $ 11,212
----------
Total.................................................. $1,080,000
----------
----------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Virginia Stock Corporation Act provides, in general, for the
indemnification of the Corporation's directors and officers in a variety of
circumstances, which may include indemnification for liabilities under the
Securities Act. Under Sections 13.1-697 and 13.1-702 of the Virginia Stock
Corporation Act, a Virginia corporation generally is authorized to indemnify its
directors and officers in civil or criminal actions if they acted in good faith
and believed their conduct to be in the best interests of the corporation and,
in the case of criminal actions, had no reasonable cause to believe that the
conduct was unlawful.
Article VI of the Corporation's Restated Articles of Incorporation provides,
in general, for mandatory indemnification of directors and officers (including
former directors and officers), to the full extent permitted by Virginia law,
against liability incurred by them in proceedings by third parties, or by or on
behalf of the Corporation itself, by reason of the fact that such person is, or
was, a director or officer of the Corporation, or is, or was, serving at the
request of the Corporation as a director, officer, employee, agent or otherwise
of another entity or organization. Virginia corporate law currently does not
permit indemnity for willful misconduct or for a knowing violation of the
criminal law.
Article VI of the Corporation's Restated Articles of Incorporation also
provides that in every instance, and to the fullest extent, permitted by
Virginia corporate law in effect from time to time, directors and officers of
the Corporation (including former directors and officers) shall not be liable to
the Corporation or its shareholders. Under current Virginia law, this provision
cannot limit liability for willful misconduct or for a knowing violation either
of the criminal law or of any federal or state securities law.
Directors and officers of the Corporation are covered by certain policies
providing directors' and officers' liability insurance. In general, the insurers
are obliged to make payments under these policies only if the Corporation may
indemnify a director or officer--and does not or cannot do so. The policies are
issued on a "claims made" basis, and apply as well to service performed by such
individuals at the direction of the Corporation as a director, officer,
employee, agent or otherwise of another organization.
In the underwriting and distribution agreements, filed or to be filed as
Exhibits 1.1-1.3 hereto, underwriters and agents will agree to indemnify, under
certain conditions, the Corporation, its directors, certain of its officers and
persons who control the Corporation within the meaning of the Securities Act of
1933 against certain liabilities.
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ITEM 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- ---------------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Distribution Agreement; incorporated by reference to Exhibit 1 to Registrant's Registration
Statement on Form S-3 (No. 33-38595).
1.2 Form of Underwriting Agreement for Debt Securities will be filed as an exhibit to a Current Report of the
Registrant on Form 8-K and incorporated herein by reference.
1.3 Form of Underwriting Agreement for Preferred Stock, Common Stock and Depositary Receipts will be filed as
an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference.
4.1 Senior Indenture, dated January 15, 1991, between the Registrant and First Trust of New York, National
Association, as successor to the trustee; incorporated by reference to Exhibit 4.1 to Registrant's
Registration Statement on Form S-3 (No. 33-38595).
4.2 Form of Subordinated Indenture between the Registrant and First Trust of New York, National Association
as trustee.
4.3 The form or forms of Securities with respect to each particular series of Securities registered hereunder
will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by
reference.
4.4 Form of Depositary Agreement for depositary shares will be filed as an exhibit to a current report of the
Registrant on Form 8-K and incorporated herein by reference with respect to any particular series of
Depositary Shares offered pursuant hereto.
5.1 Opinion of William A. Noell, Jr., Esq., Corporate Counsel of the Registrant will be filed as an exhibit
to a Current Report of the Registrant on Form 8-K and incorporated herein by reference with respect to
any particular offering of securities pursuant hereto.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP will be filed as an exhibit to a Current Report of
the Registrant on Form 8-K and incorporated herein by reference with respect to any particular offering
of securities pursuant hereto.
12.1 Computation of Consolidated Ratio of Earnings to Fixed Charges.
23.1 Consent of William A. Noell, Jr., Esq., Corporate Counsel of the Registrant (included in Exhibit 5.1).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2).
24.1 Powers of Attorney (see signature page).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of First Trust of
New York, National Association, as successor to the Trustee with respect to the Senior Indenture and as
trustee with respect to the Subordinated indenture.
</TABLE>
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
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<PAGE>
(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;
(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 paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 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.
(4) 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 15(d) of the Securities Exchange Act of 1934 (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 this
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(5) That, for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the foregoing provisions, or otherwise, the Corporation
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Corporation of expenses incurred
or paid by a director, officer or controlling person of the Corporation 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 Corporation 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 Act and will be governed by the final
adjudication of such issue.
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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 of filing on Form S-3, and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Norfolk, Commonwealth of Virginia, on January
22, 1997.
NORFOLK SOUTHERN CORPORATION
By: /s/ DAVID R. GOODE
-----------------------------------------
David R. Goode, Chairman, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints and
hereby authorizes James C. Bishop, Jr., Henry C. Wolf and W. J. Romig,
severally, such person's true and lawful attorneys-in-fact, with full power of
substitution or resubstitution, for such person and in such person's name, place
and stead, in any and all capacities, to sign on such person's behalf,
individually and in each capacity stated below, any and all amendments,
including post-effective amendments to this Registration Statement and to sign
any and all additional registration statements relating to the same offering of
securities as this Registration Statement that are filed pursuant to Rule 462(b)
of the Securities Act of 1933, 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, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as such person
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities stated below on January 22, 1997.
SIGNATURE TITLE
- ------------------------------ ---------------------------
Chairman, President and
/s/ DAVID R. GOODE Chief Executive Officer
- ------------------------------ and Director (Principal
David R. Goode Executive Officer)
/s/ HENRY C. WOLF Executive Vice President --
- ------------------------------ Finance (Principal
Henry C. Wolf Financial Officer)
/s/ JOHN P. RATHBONE Vice President and
- ------------------------------ Controller (Principal
John P. Rathbone Accounting Officer)
/s/ GERALD L. BALILES Director
- ------------------------------
Gerald L. Baliles
/s/ CARROLL A. CAMPBELL, Director
JR.
- ------------------------------
Carroll A. Campbell, Jr.
S-1
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
- ------------------------------ ---------------------------
<S> <C>
/s/ GENE R. CARTER Director
- ------------------------------
Gene R. Carter
/s/ L. E. COLEMAN Director
- ------------------------------
L. E. Coleman
/s/ T. MARSHALL HAHN, JR. Director
- ------------------------------
T. Marshall Hahn, Jr.
/s/ LANDON HILLIARD Director
- ------------------------------
Landon Hilliard
/s/ E. B. LEISENRING, JR. Director
- ------------------------------
E. B. Leisenring, Jr.
/s/ ARNOLD B. MCKINNON Director
- ------------------------------
Arnold B. McKinnon
/s/ JANE MARGARET O'BRIEN Director
- ------------------------------
Jane Margaret O'Brien
/s/ HAROLD W. POTE Director
- ------------------------------
Harold W. Pote
</TABLE>
S-2
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION PAGE
- ----------- ------------------------------------------------------------------------------------------------ -----
<C> <S> <C>
1.1 Form of Distribution Agreement; incorporated by reference to Exhibit 1 to Registrant's
Registration Statement on Form S-3 (No. 33-38595).
1.2 Form of Underwriting Agreement for Debt Securities will be filed as an exhibit to a Current
Report of the Registrant on Form 8-K and incorporated herein by reference.
1.3 Form of Underwriting Agreement for Preferred Stock, Common Stock and Depositary Receipts will be
filed as an exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by
reference.
4.1 Senior Indenture, dated January 15, 1991, between the Registrant and First Trust of New York,
National Association, as successor to the trustee; incorporated by reference to Exhibit 4.1 to
Registrant's Registration Statement on Form S-3 (No. 33-38595).
4.2 Form of Subordinated Indenture between the Registrant and First Trust of New York, National
Association as trustee.
4.3 The form or forms of Securities with respect to each particular series of Securities registered
hereunder will be filed as an exhibit to a Current Report of the Registrant on Form 8-K and
incorporated herein by reference.
4.4 Form of Depositary Agreement for depositary shares will be filed as an exhibit to a current
report of the Registrant on Form 8-K and incorporated herein by reference with respect to any
particular series of Depositary Shares offered pursuant hereto.
5.1 Opinion of William A. Noell, Jr., Esq., Corporate Counsel of the Registrant will be filed as an
exhibit to a Current Report of the Registrant on Form 8-K and incorporated herein by reference
with respect to any particular offering of securities pursuant hereto.
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP will be filed as an exhibit to a Current
Report of the Registrant on Form 8-K and incorporated herein by reference with respect to any
particular offering of securities pursuant hereto.
12.1 Computation of Consolidated Ratio of Earnings to Fixed Charges.
23.1 Consent of William A. Noell, Jr., Esq., Corporate Counsel of the Registrant (included in Exhibit
5.1).
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (included in Exhibit 5.2).
24.1 Powers of Attorney (see signature page).
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of First
Trust of New York, National Association, as successor to the Trustee with respect to the Senior
Indenture and as trustee with respect to the Subordinated indenture.
</TABLE>
<PAGE>
--------------------------------------------------------------------------
--------------------------------------------------------------------------
NORFOLK SOUTHERN CORPORATION
TO
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
TRUSTEE
________________
INDENTURE
WITH RESPECT TO SUBORDINATED DEBT SECURITIES
DATED AS OF _______________
________________
--------------------------------------------------------------------------
--------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
----
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions: . . . . . . . . . . . . . . . . . . 1
Act. . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate. . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . 3
Company. . . . . . . . . . . . . . . . . . . . . 3
Company Request; Company Order . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . 3
Corporation. . . . . . . . . . . . . . . . . . . 3
Default. . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . 3
Depositary . . . . . . . . . . . . . . . . . . . 3
Dollars. . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . 4
Foreign Government Securities. . . . . . . . . . 4
Global Security. . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . 4
Indenture. . . . . . . . . . . . . . . . . . . . 4
Interest . . . . . . . . . . . . . . . . . . . . 5
Interest Payment Date. . . . . . . . . . . . . . 5
Maturity . . . . . . . . . . . . . . . . . . . . 5
Officers' Certificate. . . . . . . . . . . . . . 5
Opinion of Counsel . . . . . . . . . . . . . . . 5
Original Issue Discount Security . . . . . . . . 5
Outstanding. . . . . . . . . . . . . . . . . . . 5
<PAGE>
Paying Agent . . . . . . . . . . . . . . . . . . 7
Person . . . . . . . . . . . . . . . . . . . . . 7
Place of Payment . . . . . . . . . . . . . . . . 7
Predecessor Security . . . . . . . . . . . . . . 7
______________
NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
2
<PAGE>
PAGE
----
Redemption Date. . . . . . . . . . . . . . . . . 7
Redemption Price . . . . . . . . . . . . . . . . 7
Regular Record Date. . . . . . . . . . . . . . . 7
Responsible Officer. . . . . . . . . . . . . . . 7
Securities . . . . . . . . . . . . . . . . . . . 8
Security Register and Security Registrar . . . . 8
Senior Indebtedness. . . . . . . . . . . . . . . 8
Significant Subsidiary . . . . . . . . . . . . . 8
Special Record Date. . . . . . . . . . . . . . . 8
Stated Maturity. . . . . . . . . . . . . . . . . 8
Subsidiary . . . . . . . . . . . . . . . . . . . 8
Trustee. . . . . . . . . . . . . . . . . . . . . 9
Trust Indenture Act. . . . . . . . . . . . . . . 9
U.S. Government Obligations. . . . . . . . . . . 9
Vice President . . . . . . . . . . . . . . . . . 9
SECTION 102. Form of Documents Delivered to Trustee . . . . . 10
SECTION 103. Acts of Holders. . . . . . . . . . . . . . . . . 10
SECTION 104. Notices, Etc., to Trustee and Company. . . . . . 11
SECTION 105. Notice to Holders; Waiver. . . . . . . . . . . . 12
SECTION 106. Conflict with Trust Indenture Act. . . . . . . . 13
SECTION 107. Effect of Headings and Table of Contents . . . . 13
SECTION 108. Successors and Assigns . . . . . . . . . . . . . 13
SECTION 109. Separability Clause. . . . . . . . . . . . . . . 13
SECTION 110. Benefits of Indenture. . . . . . . . . . . . . . 13
SECTION 111. Governing Law. . . . . . . . . . . . . . . . . . 13
ARTICLE TWO
SECURITY FORMS
ii
<PAGE>
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . 14
SECTION 202. Additional Provisions in Global Securities . . . 14
SECTION 203. Form of Trustee's Certificate of Authentication. 15
PAGE
----
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . 15
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . 18
SECTION 303. Execution, Authentication, Delivery and Dating . 18
SECTION 304. Temporary Securities . . . . . . . . . . . . . . 20
SECTION 305. Registration, Registration of
Transfer and Exchange . . . . . . . . . . . . 21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities 23
SECTION 307. Payment of Interest; Interest Rights Preserved . 24
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . 26
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . 27
SECTION 310. Computation of Interest. . . . . . . . . . . . . 27
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . 27
SECTION 402. Application of Trust Money . . . . . . . . . . . 29
iii
<PAGE>
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . . . . . 30
SECTION 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . . 33
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee. . . . . . . . . . 34
SECTION 504. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . . . . . 35
SECTION 505. Application of Money Collected . . . . . . . . . 36
PAGE
----
SECTION 506. Limitation on Suits. . . . . . . . . . . . . . . 36
SECTION 507. Restoration of Rights and Remedies . . . . . . . 37
SECTION 508. Rights and Remedies Cumulative . . . . . . . . . 37
SECTION 509. Delay or Omission Not Waiver . . . . . . . . . . 38
SECTION 510. Control by Holders . . . . . . . . . . . . . . . 38
SECTION 511. Waiver of Past Defaults. . . . . . . . . . . . . 38
SECTION 512. Waiver of Stay or Extension Laws . . . . . . . . 39
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Rights of Trustee. . . . . . . . . . . . 40
SECTION 602. Not Responsible for Recitals
iv
<PAGE>
or Issuance of Securities . . . . . . . . . . 41
SECTION 603. May Hold Securities. . . . . . . . . . . . . . . 41
SECTION 604. Money Held in Trust. . . . . . . . . . . . . . . 42
SECTION 605. Compensation and Reimbursement . . . . . . . . . 42
SECTION 606. Resignation and Removal; Appointment of Successor 42
SECTION 607. Acceptance of Appointment by Successor . . . . . 44
SECTION 608. Merger, Conversion, Consolidation or
Succession to Business. . . . . . . . . . . . 46
SECTION 609. Appointment of Authenticating Agent. . . . . . . 47
ARTICLE SEVEN
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OF LEASE
SECTION 701. Company May Consolidate, Etc., Only on Certain
Terms . . . . . . . . . . . . . . . . . . . . 50
SECTION 702. Successor Corporation
Substituted . . . . . . . . . . . . . . . . . 51
PAGE
----
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 801. Supplemental Indentures
Without Consent of Holders. . . . . . . . . . 51
SECTION 802. Supplemental Indentures with
Consent of Holders. . . . . . . . . . . . . . 52
SECTION 803. Execution of Supplemental
Indentures. . . . . . . . . . . . . . . . . . 54
v
<PAGE>
SECTION 804. Effect of Supplemental
Indentures. . . . . . . . . . . . . . . . . . 54
SECTION 805. Conformity with Trust Indenture
Act . . . . . . . . . . . . . . . . . . . . . 54
SECTION 806. Reference in Securities to
Supplemental Indentures . . . . . . . . . . . 55
ARTICLE NINE
COVENANTS
SECTION 901. Payment of Principal, Premium
and Interest. . . . . . . . . . . . . . . . . 55
SECTION 902. Maintenance of Office or
Agency. . . . . . . . . . . . . . . . . . . . 55
SECTION 903. Money for Securities Payments
to Be Held in Trust . . . . . . . . . . . . . 56
SECTION 904. Corporate Existence. . . . . . . . . . . . . . . 58
SECTION 905. Maintenance of Properties. . . . . . . . . . . . 58
SECTION 906. Payment of Taxes and Other
Claims. . . . . . . . . . . . . . . . . . . . 58
SECTION 907. Statement as to Compliance . . . . . . . . . . . 59
SECTION 908. Waiver of Certain Covenants. . . . . . . . . . . 59
ARTICLE TEN
REDEMPTION OF SECURITIES
SECTION 1001. Applicability of Article . . . . . . . . . . . . 60
SECTION 1002. Election to Redeem; Notice
to Trustee. . . . . . . . . . . . . . . . . . 60
PAGE
----
SECTION 1003. Selection by Trustee of
vi
<PAGE>
Securities to Be Redeemed . . . . . . . . . . 60
SECTION 1004. Notice of Redemption . . . . . . . . . . . . . . 61
SECTION 1005. Deposit of Redemption Price. . . . . . . . . . . 62
SECTION 1006. Securities Payable on
Redemption Price. . . . . . . . . . . . . . . 62
SECTION 1007. Securities Redeemed in Part. . . . . . . . . . . 62
ARTICLE ELEVEN
SINKING FUNDS
SECTION 1101. Applicability of Article . . . . . . . . . . . . 63
SECTION 1102. Satisfaction of Sinking Fund
Payments with Securities. . . . . . . . . . . 63
SECTION 1103. Redemption of Securities for
Sinking Fund. . . . . . . . . . . . . . . . . 64
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SIGNATURES AND SEALS . . . . . . . . . . . . . . . . . . . . . . 65
vii
<PAGE>
INDENTURE, dated as of ______________ between Norfolk Southern
Corporation, a corporation duly organized and existing under the laws of the
Commonwealth of Virginia (the "Company"), having its principal office at Three
Commercial Place, Norfolk, Virginia 23510-2191, and First Trust of New York,
National Association, a material banking association duly organized and existing
under the laws of the United States of America, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, the Company agrees as follows with the Trustee for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
<PAGE>
(1) the terms defined in this Section have the meanings assigned
to them in this Section and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with United States generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(4) the words "herein," "hereof," and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act," when used with respect to any Holder, has the meaning
specified in Section 103.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities,
2
<PAGE>
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day", except as otherwise specified as contemplated by
Section 301, when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are generally authorized or
obligated by law to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
3
<PAGE>
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board,
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
in the City of New York at which at any particular time its corporate trust
business shall be administered.
"Corporation" includes corporations, associations, companies and
business trusts.
"Default" means any event which is, or after notice or passage of
time would be an "Event of Default."
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depositary by the Company pursuant to
Section 301, and if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Securities of that series.
"Dollars" or "$" or any similar reference shall mean the coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
4
<PAGE>
"Event of Default" has the meaning specified in Section 501.
"Foreign Government Securities" means, with respect to Securities
of any series that are denominated in a currency other than Dollars,
securities that are (i) direct obligations of the government that issued such
currency for the payment of which obligations its full faith and credit is
pledged or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of such government (the timely payment
of which is unconditionally guaranteed as a full faith and credit obligation
of such government) which, in either case under clauses (i) or (ii), are not
callable or redeemable at the option of the issuer thereof.
"Global Security" means a Security issued to evidence all or a part
of any series of Securities which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to
the Depositary's instruction, all in accordance with this Indenture and
pursuant to a Company Order, which shall be registered in the name of the
Depositary or its nominee.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
5
<PAGE>
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for redemption, request for
repayment or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, President or a Vice President, and by the Treasurer, an
Assistant Treasurer, Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding," when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, EXCEPT:
6
<PAGE>
(ii) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(iii) Securities for whose payment or redemption money,
U.S. Government Obligations or Foreign Government Securities as
contemplated by Section 401 in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust
by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; PROVIDED that, if such
Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iv) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (b) the principal amount of a Security
denominated
7
<PAGE>
in a foreign currency or currencies shall be the Dollar equivalent, determined
by the Company and set forth in an Officers' Certificate on the date of original
issuance of such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the Dollar equivalent on the date of original
issuance of such Security of the amount determined as provided in (a) above) of
such Security, and (c) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
8
<PAGE>
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing corporate trust functions.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly
9
<PAGE>
means any Securities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" shall have the meaning ascribed to it in the
applicable indenture supplemental hereto.
"Significant Subsidiary" means a Subsidiary of the Company which
qualifies as a "significant subsidiary" as defined in Rule 1-02 of Regulation
S-X promulgated by the Commission or any successor rule or regulation of the
Commission.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
10
<PAGE>
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 805.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligations or a specific payment of
principal of or interest on any such U.S. Government Obligations held by such
custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the U.S.
Government Obligations evidenced by such depository receipt.
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"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
SECTION 102. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinions or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents,
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certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
SECTION 103. ACTS OF HOLDERS.
(b) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(c) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the
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Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(d) At any time, the ownership of Securities shall be proved by
the Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
SECTION 104. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other ad-
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dress previously furnished in writing to the Trustee by the
Company.
SECTION 105. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
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SECTION 106. CONFLICT WITH TRUST INDENTURE ACT.
This Indenture is subject to the Trust Indenture Act and if any
provision hereof limits, qualifies or conflicts with the Trust Indenture Act,
the Trust Indenture Act shall control.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 111. GOVERNING LAW.
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This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Securities of each series shall be in substantially such form as
shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved
on steel borders or may be pro-
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duced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 202. ADDITIONAL PROVISIONS IN GLOBAL SECURITIES.
Any Global Security may provide that it shall represent the aggregate
or specified amount of Outstanding Securities from time to time endorsed thereon
and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount or changes in the rights of Holders of Outstanding
Securities represented thereby shall be made in such manner and by such Person
or Persons as shall be specified therein. Any instructions by the Company with
respect to a Security in global form shall be in writing but need not comply
with Section 314(c) of the Trust Indenture Act.
SECTION 203. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION
as Trustee
By
---------------------------------------
Authorized Officer
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ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(3) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(4) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 806 or 1007);
(5) the date or dates on which the principal of the
Securities of the series is payable;
(6) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which
such interest shall be payable and the Regular Record
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Date for the interest payable on any Interest Payment Date;
(7) the place or places where the principal of (and
premium, if any) and interest on Securities of the series shall
be payable;
(8) the period or periods within which, the price or
prices at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in part, at
the option of the Company, if the Company is to have that option;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and
the terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(10) if other than minimum denominations of $100,000 and
any integral multiples of $1,000 in excess thereof, the
denominations in which Securities of the series shall be
issuable;
(11) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(12) if other than Dollars, the coin or currency in which
payment of the principal of (and premium, if any) and interest on
the Securities of the series shall be payable;
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(13) if the principal of (and premium, if any) or interest
on the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a coin or
currency other than that in which the Securities are stated to be
payable, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(14) if the amount of payments of principal of (and
premium, if any) or interest on the Securities of the series may
be determined with reference to an index based on a coin or
currency other than that in which the Securities are stated to be
payable, the manner in which such amounts shall be determined;
(15) 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 Securities or Securities may be exchanged in whole or in
part for other definitive Securities; and the Depositary for such
Global Security or Securities, which Depositary must be a
clearing agency registered under the Securities Exchange Act of
1934;
(16) if other than as defined in Section 101, the meaning
of "Business Day" when used with respect to any Securities of the
series;
(17) the terms of subordination of the Securities of such
series to any other indebtedness of the Company, including,
without limitation, the Securities of any other series, including
the definition of Senior Indebtedness; and
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<PAGE>
(18) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to such Board Resolution and set forth in such Officers' Certificate or in any
such indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
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<PAGE>
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such series of Securities, the Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to a Board Resolution as permitted by Section 201, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to a Board Resolution as permitted by Section 301, that such terms have
been established in conformity with the provisions of this Indenture; and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company
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<PAGE>
in the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
the enforcement of creditors' rights and to general principles of equity.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
If all of the Securities of a series are not to be originally issued
at the same time, then the documents required to be delivered pursuant to this
Section 303 must be delivered only once, prior to the authentication and
delivery of the first Security of such series; PROVIDED, HOWEVER, that any
subsequent request by the Company to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the Company that, as of the date of such request, the statements
made in the Officers' Certificate delivered pursuant to this Section 303 shall
be true and correct as if made on such date.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provid-
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<PAGE>
ed for herein executed by the Trustee by manual signature, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
of any series are issued, the Company will cause definitive Securities of that
series to be prepared without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary Securities of such series
shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the same
series of authorized denominations. Until so exchanged the tempo-
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<PAGE>
rary Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept, at an office or agency of the
Company maintained pursuant to Section 902, a register (herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. Such office or agency shall be
the "Security Registrar" for the purpose of registering Securities and transfers
as herein provided. The Corporate Trust Office of the Trustee is hereby
initially appointed Security Registrar.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series with the same terms, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
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<PAGE>
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 806 or 1007 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1003 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this
27
<PAGE>
Section 305 for Securities registered in the names of Persons other than the
Depositary with respect to such Security or its nominee only as provided in this
paragraph. A Global Security shall be so exchangeable pursuant to this Section
305 if (i) the Depositary with respect to such Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time such Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and, in either
such case, a successor Depositary is not appointed by the Company within 90
days, (ii) the Company executes and delivers to the Trustee a Company Order that
such Global Security shall be so exchangeable or (iii) there shall have occurred
and be continuing an Event of Default, or an event which, with the giving of
notice or lapse of time, or both, would constitute an Event of Default, with
respect to the Securities. Upon the exchange of a Global Security for
Securities in certificated form, such Global Security shall be cancelled by the
Trustee. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Securities registered in such names as the
Depositary with respect to such Global Security shall direct.
Notwithstanding any other provision of this Section 305, unless and
until it is exchanged in whole or in part for Securities in certificated form, a
Global Security may not be transferred except as a whole by the Depositary with
respect to such Global Security to a nominee of such Depositary, or by a nominee
of such Depositary to such Depositary or to another nominee of such Depositary.
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<PAGE>
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In any case such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connection therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or
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stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be
at any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(19) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities
of such series (or their respective Predecessor Securities) are
registered
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at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security
of such series and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears
in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
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(20) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
No holder of any beneficial interest in any Global Security held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Security, and such Depositary may be treated by the
Company, the Trustee, and any agent of the Compa-
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ny or the Trustee as the owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee, from giving
effect to any written certification, proxy or other authorization furnished by a
depositary or impair, as between a Depositary and such holders of beneficial
interests, the operation of customary practices governing the exercise of the
rights of the Depositary as Holder of any Security.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect as to all Outstanding Securities or all Outstanding Securities of any
series, as the case may be (except as to any surviving rights of registration of
transfer or exchange of Securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
all Outstanding Securities or all Outstanding
Securities of such series, as the case may be, theretofore
authenticated and delivered (other than (i) Securities or
Securities of such series, as the case may be, which have
been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306 and (ii) Securities or
Securities of such series, as the case may be, for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 903) have been delivered to the Trustee
for cancellation; or
(B) the Company has irrevocably deposited or caused to
be deposited with the
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Trustee as trust funds in trust (i) money (either in Dollars
or such other currency in which the Securities of any series
may be payable) in an amount or, (ii) U.S. Government
Obligations or, in the case of Securities denominated in a
currency other than Dollars, Foreign Government Securities,
which through the payment of principal and interest thereof
in accordance with their terms will provide, not later than
one day before the due date of any payment of principal
(including any premium) and interest, if any, under the
Securities, money in an amount or (iii) a combination of (i)
and (ii) sufficient in the opinion of the Company's
independent certified public accountants expressed in a
written certification thereof delivered to the Trustee,
without consideration of any reinvestment of such interest,
to pay and discharge the entire indebtedness on all
outstanding Securities or all Outstanding Securities of such
series, as the case may be, not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if
any) and interest to the date of such deposit (in the case
of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(21) the Company has paid or caused to be paid all other
sums payable hereunder by the Company with respect to the
Securities or Securities of such series, as the case may be;
(22) The Company has delivered to the Trustee an Opinion
of Counsel, reasonably satisfactory to the Trustee, to the effect
that, based on federal income tax laws then in effect, the
Holders
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of the Securities or the Securities of such series, as the case
may be, will not recognize income, gain or loss on the Securities
or the Securities of such series, as the case may be, for federal
income tax purposes as a result of the Company's exercise of its
option under this Section 401 and shall be subject to federal
income tax in the same amounts and at the same times as would
have been the case if such option had not been exercised; and
(23) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the
Securities or the Securities of such series, as the case may be,
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 605, the obligations
of the Trustee to any Authenticating Agent under Section 609 and, if money, U.S.
Government Obligations and/or Foreign Government Securities shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402 and the last paragraph
of Section 903 shall survive.
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 903, all
money, U.S. Government Obligations and Foreign Government Securities deposited
with the Trustee pursuant to Section 401 shall be held in trust and applied by
it, in accordance with the provisions of the Securities and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent)
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as the Trustee may determine, to the Persons entitled thereto, of the principal
(and premium, if any) and interest for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(24) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(25) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity;
or
(26) default in the payment of any sinking fund
installment, when and as due by the terms of a Security of that
series; or
(27) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than
a covenant or warranty a default in whose performance or whose
breach
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is elsewhere in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit
of series of Securities other than that series), and continuance
of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of
at least 10% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(28) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed or guaranteed by the
Company or any Significant Subsidiary (including a default with
respect to Securities of any series other than that series) or
under any mortgage, indenture, equipment trust agreement or
instrument under which there may be issued or by which there may
be secured or evidenced any indebtedness for money borrowed or
guaranteed by the Company or any Significant Subsidiary
(including this Indenture and including indebtedness in respect
of capitalized lease obligations), whether such indebtedness now
exists or shall hereafter be created, which, together with all
other such defaults, shall have resulted in such indebtedness, in
an aggregate principal amount exceeding $50,000,000, becoming or
being declared due and payable prior to the date on which it
would otherwise have become due and payable, without such
indebtedness having discharged, or such acceleration having been
rescinded or annulled, or a sum of money sufficient to discharge
in full such indebtedness is not deposited in trust, within a
period of 10 days after there shall have been given, by
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registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 10% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such
notice is a "Notice of Default" hereunder; PROVIDED, HOWEVER,
that, subject to the provisions of Section 601, the Trustee shall
not be deemed to have knowledge of such default unless either (A)
a Responsible Officer of the Trustee shall have actual knowledge
of such default or (B) the Trustee shall have received written
notice thereof from the Company, from any Holder, from the holder
of any such indebtedness or from the trustee under any such
mortgage, indenture or other instrument; or
(29) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under any applicable federal or
state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance
of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 60 consecutive
days; or
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(30) the commencement by the Company of a voluntary case
or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other
case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state
law, or the consent by it to the filing of such petition or to
the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official
of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action
by the Company in furtherance of any such action; or
(31) any other Event of Default provided with respect to
Securities of that series.
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SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of the Securities of that series to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(32) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all Defaulted Interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise
than by such decla-
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ration of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(33) all Events of Default with respect to Securities of
that series, other than the nonpayment of the principal of
Securities of that series which have become due solely by such
declaration of acceleration, have been cured or waived as
provided in Section 511.
No such rescission shall affect any subsequent Event of Default or impair any
right consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if there is a
(1) default in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
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the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
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SECTION 504. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
In connection with any filings of any claims pursuant to Section
317(a)(2) of the Trust Indenture Act (i) the Trustee shall be entitled to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same, (ii) unless prohibited by law or
applicable regulation, to vote on behalf of the Holders for the election of a
trustee in bankruptcy or other similar official, and any receiver trustee or
similar official in any proceeding is hereby authorized by each Holder to make
such payments to the Trustee and, if the Trustee consents to the making of such
payments directly to the Holders, to pay to the Trustee any amounts due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee or any
predecessor Trustee under Section 605.
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SECTION 505. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee or any
predecessor Trustee under Section 605; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any) and interest,
respectively.
SECTION 506. LIMITATION ON SUITS.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 507. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or
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abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders shall be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 508. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 509. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 510. CONTROL BY HOLDERS.
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The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, PROVIDED that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
SECTION 511. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past Default hereunder with respect to such
series and its consequences, except a Default
(1) in the payment of the principal of (or premium, if any)
or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Eight cannot be modified or amended without the
consent of the Holder of each Outstanding Security of such series
affected.
Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom
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shall be deemed to have been cured, for every purpose of this Indenture; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to waive any past Default
hereunder. If a record date is fixed, the Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to waive any
default hereunder, or to retract (prior to the requisite percentage for such
waiver to become effective having been obtained) any such waiver previously
given, whether or not such Holders remain Holders after such record date;
PROVIDED, that unless such waiver shall have become effective by virtue of such
requisite percentage having been obtained prior to the date which is 90 days
after such record date, such waiver shall, automatically and without further
action by the Holder, be canceled and of no further force or effect.
SECTION 512. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this 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 will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of the Trust Indenture Act:
(f) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(g) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(h) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(i) the Trustee may consult with counsel and the written advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
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omitted by it hereunder in good faith and in reliance thereon;
(j) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(k) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorneys;
and
(l) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 602. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company,
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and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 603. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 604. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 605. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its
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request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee or any predecessor Trustee
for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any
of its powers or duties hereunder.
SECTION 606. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(m) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 607 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(n) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the
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Outstanding Securities of such series, delivered to the Trustee and to the
Company.
(o) If at any time:
(1) the Trustee shall fail to comply with Section 310(b)
of the Trust Indenture Act after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
310(a) of the Trust Indenture Act and shall fail to resign after
written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation.
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities and the appointment of
a successor Trustee or Trustees.
(p) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a
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successor Trustee or Trustees with respect to the Securities of that or those
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and shall comply with the applicable requirements of Section
607. If, within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to the
Securities of any series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 607, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 607, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(q) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall
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include the name of the successor Trustee with respect to the Securities of such
series and the address of its Corporate Trust Office.
SECTION 607. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(r) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(s) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect
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to all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(t) Upon request of any such successor Trustee, the Company
shall execute any and all instruments necessary to more fully and certainly vest
in and confirm to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
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(u) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 608. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in the office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities.
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SECTION 609. APPOINTMENT OF AUTHENTICATING AGENT.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof or pursuant to Section 306, and
Securities so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $50,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall
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be entitled to be reimbursed for such payments, subject to the provisions of
Section 605.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
First Trust of New York,
National Association
As Trustee
By
-------------------------
As Authenticating Agent
By
-------------------------
Authorized Officer"
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ARTICLE SEVEN
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
.2 . COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person unless:
(a) in case the Company shall consolidate with or
merge into another corporation or convey, transfer or lease its
properties and assets substantially as an entirety to any Person,
the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of
America, any state thereof or the District of
Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest on all the
Securities and the performance of every covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company as a
result of such transaction as having been incurred by the Company at the time
of such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have happened
and be continuing; and
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(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required with
such transaction, such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
.3. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 701, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
.4 . SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably satisfactory
to the Trustee, for any of the following purposes:
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(a) to evidence the succession of another corporation
to the Company and the assumption by any such successor of the
covenants of the Company herein and in the Securities; or
(b) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and if
such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being
included solely for the benefit of such series) or to surrender
any right or power herein conferred upon the Company; or
(c) to add Events of Default; or
(d) to add to or to change any of the provisions of
this Indenture to such extent as shall be necessary to permit or
facilitate the issuance of Securities in bearer form, registrable
or not registrable as to principal, and with or without interest
coupons; or
(e) to change or eliminate any of the provisions of
this Indenture, PROVIDED that any such change or elimination
shall become effective only when there is no Security Outstanding
of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(f) to secure the Securities; or
(g) to establish the form or terms of Securities of
any series as permitted by Sections 201 and 301; or
(h) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary
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to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements
of Section 607(b); or
(i) to cure any ambiguity, to correct or supplement
any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, PROVIDED such
action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
.5 . SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to this Indenture or of modifying in any manner the rights
of the Holders of Securities of such series under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest
thereon or any premium payable upon the redemption thereof, or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity there of pursuant to Section 502, or
change any Place of Payment where, or the coin or currency in
which, any Security or any premium or the interest thereon is
payable, or impair the
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right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(b) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or
(c) modify any of the provisions of this Section,
Section 511 or Section 908, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, PROVIDED,
HOWEVER, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references
to "the Trustee" and concomitant changes in this Section and
Section 908 or the deletion of this proviso, in accordance with
the requirements of Sections 607(b) and 801(8), or
(d) modify the subordination provisions applicable to any
series of Outstanding Securities in a manner adverse to the
Holders thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Persons entitled to consent to any indenture
supplemental is fixed the Holders on such record date or their duly designated
proxies, and only such Persons, shall be entitled to consent to such
supplemental indenture or to revoke (prior to the requisite percentage for such
consent to become effective having been obtained) any such consent previously
given, whether or not such Holders remain Holders after such record date;
PROVIDED, that unless such consent shall have become effective by virtue of such
requisite percentage having been obtained prior to the date which is 90 days
after such record date, such consent shall, automatically and without further
action by the Holder, be canceled and of no further force or effect.
.6. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
.7. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of a supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture
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shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
.8. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
.9. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE NINE
COVENANTS
.10. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
.11. MAINTENANCE OF OFFICE OR AGENCY.
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The Company will maintain or cause to be maintained in each Place of
Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served, and the Company hereby initially
appoints the Corporate Trust Office of the Trustee as its agent to receive all
such presentations, surrenders, notices and demands. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
.12 . MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
princi-
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pal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of (and premium, if any) or interest on Securities of
that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the
Company (or any other obligor upon the Securities of that series)
in the making of any payment of principal (and premium, if any)
or interest on the Securities of that series; and
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(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee or such
Paying Agent, before being required to make any such repayment, may (but shall
not be obligated to) at the expense of the Company cause to be published once,
in a newspaper published in an official language of the country of publication
or in the English language, customarily published on each Business Day and of
general circulation in each Place of Payment notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance
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of such money then remaining will be repaid to the Company.
.13. CORPORATE EXISTENCE.
Subject to Article Seven, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory) and
franchises of the Company and its Subsidiaries; provided, however, that the
Company shall not be required to preserve any such right or franchise or to
retain any Subsidiary if the Company shall determine that the preservation or
retention thereof is no longer desirable in the conduct of the business of the
Company and its Subsidiaries considered as a whole and that the loss thereof is
not disadvantageous in any material respect to the Holders.
.14. MAINTENANCE OF PROPERTIES.
The Company will cause all properties deemed by the Company to be
necessary and useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in such condition, repair and working order
and supplied with such equipment and will cause to be made such repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary or appropriate in the performance of
its business, provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation and maintenance of any of such
properties, or disposing of any of them, if such discontinuance or disposal is,
in the judgment of the Company or of the Subsidiary concerned, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
.15. PAYMENT OF TAXES AND OTHER CLAIMS.
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The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, and, in each case, only if the failure
to pay or discharge could be disadvantageous in any material respect to the
Holders (1) all taxes, assessments and governmental charges levied or imposed
upon the Company or any Subsidiary or upon the income, profits or property of
the Company or any Subsidiary, and (2) all lawful claims for labor, materials
and supplies which, if unpaid, might by law become a lien upon the property of
the Company or any Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings or otherwise and the Company
shall have set aside on its books adequate reserves with respect thereto (if and
to the extent required by generally accepted accounting principles).
.16. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, by May 1 of each year, a
written statement, signed by the Chairman of the Board, the President, or a Vice
President and by the Treasurer, an Assistant Treasurer, the Controller, an
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
stating, as to each signer thereof, that
(a) a review of the activities of the Company during
such year and of performance under this Indenture has been made
under his supervision, and
(b) to the best of his knowledge, based on such
review, (a) the Company has fulfilled all its obligations
under this Indenture throughout such year, or, if there has been
a default in the fulfillment of any such obligation, specifying
each such default known to him and the nature and status thereof,
and (b) no event has
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occurred and is continuing which is, or after notice or lapse of
time or both would become, an Event of Default, or, if such an
event has occurred and is continuing, specifying each such event
known to him and the nature and status thereof.
.17. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 904 to 906, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE TEN
REDEMPTION OF SECURITIES
.18. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
.19. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution or Company order. In case of any redemption at
the election of the Company of less than all the Securities of
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any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
.20 . SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue
date, interest rate and Stated Maturity are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
75
<PAGE>
.21. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all the Outstanding
Securities of any series are to be redeemed, the identification (and, in
the case of partial redemption, the principal amounts) of the particular
Securities to be redeemed,
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(e) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(f) that the redemption is for a sinking fund, if such is
the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
76
<PAGE>
.22. DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust,as provided in Section 903) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
.23. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
.24. SECURITIES REDEEMED IN PART.
Any Security (including any Global Security) which is to be redeemed
only in part shall be surren-
77
<PAGE>
dered at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided, that if a Global Security is so
surrendered, the new Global Security shall be in a denomination equal to the
unredeemed portion of the principal of the Global Security so surrendered.
ARTICLE ELEVEN
SINKING FUNDS
.25. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1102. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
78
<PAGE>
.26 . SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series with the same issue date, interest rate and Stated
Maturity which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in
satisfaction of all or any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such Series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
.27 . REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment of
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1102 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1003 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner
79
<PAGE>
provided in Section 1004. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 1006 and 1007.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
80
<PAGE>
NORFOLK SOUTHERN CORPORATION
By____________________________
Vice President
Attest:
____________________
Assistant Secretary
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION
By____________________________
Attest:
____________________
81
<PAGE>
EXHIBIT 12.1 PAGE 1 OF 2
NORFOLK SOUTHERN CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(MILLIONS OF DOLLARS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30 YEAR ENDED DECEMBER 31
--------------------- ----------------------
<S> <C> <C> <C> <C>
1996 1995 1995 1994
---------- --------- ---------- ----------
EARNINGS
Income before income taxes as reported......................... $ 886.6 $ 854.7 $ 1,114.7 $ 1,049.0
Add:
Total interest expenses (as detailed below).................. 136.9 132.8 174.9 159.9
Income (loss) of partially owned entities(1)................. 0.7 0.4 0.1 0.6
Subsidiaries' preferred dividend requirement................. 1.9 2.0 2.6 2.7
---------- --------- ---------- ----------
Income before income taxes, as adjusted.................... $ 1,026.1 $ 989.9 $ 1,292.3 $ 1,212.2
---------- --------- ---------- ----------
---------- --------- ---------- ----------
FIXED CHARGES
Interest expense on debt....................................... $ 83.9 $ 85.7 $ 113.4 $ 101.6
Other interest expense......................................... 30.1 24.6 31.5 31.8
Calculated interest portion of rent expense.................... 22.9 22.5 30.0 26.5
---------- --------- ---------- ----------
Total interest expenses.................................... 136.9 132.8 174.9 159.9
Capitalized interest........................................... 9.4 10.9 14.0 17.8
Subsidiaries' preferred dividend requirement on a pretax
basis........................................................ 2.9 3.0 4.1 4.2
---------- --------- ---------- ----------
Total fixed charges........................................ $ 149.2 $ 146.7 $ 193.0 $ 181.9
---------- --------- ---------- ----------
---------- --------- ---------- ----------
RATIO OF EARNINGS TO FIXED CHARGES............................. 6.88 6.75 6.70 6.66
</TABLE>
- ------------------------
(1) Includes the distributed income of 20%-49% owned entities, net of equity
recorded in undistributed income and the minority income of consolidated
entities which have fixed charges.
The computations do not include $0.3 million of interest expense related to
$7.8 million of debt guaranteed for a less than 50% owned entity.
<PAGE>
EXHIBIT 12.1 PAGE 2 OF 2
NORFOLK SOUTHERN CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(MILLIONS OF DOLLARS)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31
----------------------------------
<S> <C> <C> <C>
1993 1992 1991(2)
---------- ---------- ----------
EARNINGS
Income before income taxes as reported....................................... $ 898.6 $ 875.3 $ 143.6
Add:
Total interest expenses (as detailed below)................................ 160.7 161.6 151.4
Income (loss) of partially owned entities(1)............................... (2.6) 2.0 1.3
Subsidiaries' preferred dividend requirement............................... 2.7 2.7 3.3
---------- ---------- ----------
Income before income taxes, as adjusted.................................. $ 1,059.4 $ 1.041.6 $ 299.6
---------- ---------- ----------
---------- ---------- ----------
FIXED CHARGES
Interest expense on debt..................................................... $ 98.6 $ 109.0 $ 99.7
Other interest expense....................................................... $ 38.7 33.0 34.8
Calculated interest portion of rent expense.................................. 23.4 19.6 16.9
---------- ---------- ----------
Total interest expenses.................................................. 160.7 161.6 151.4
Capitalized interest......................................................... 21.7 17.9 19.3
Subsidiaries' preferred dividend requirement on a pretax basis............... 4.3 4.2 4.9
---------- ---------- ----------
Total fixed charges...................................................... $ 186.7 $ 183.7 $ 175.6
---------- ---------- ----------
---------- ---------- ----------
RATIO OF EARNINGS TO FIXED CHARGES........................................... 5.67 5.67 1.71(2)
</TABLE>
- ------------------------
(1) Includes the distributed income of 20%-49% owned entities, net of equity
recorded in undistributed income and the minority income of consolidated
entities which have fixed charges.
(2) Included in 1991 results is a special charge that increased transportation
operating expenses by $680 million.
The computations do not include $0.3 million of interest expense related to
$7.8 million of debt guaranteed for a less than 50% owned entity.
<PAGE>
EXHIBIT 23.2
The Board of Directors
NORFOLK SOUTHERN CORPORATION:
We consent to incorporation by reference in the registration statement on Form
S-3 of Norfolk Southern Corporation of our report dated January 23, 1996,
relating to the consolidated balance sheets of Norfolk Southern Corporation and
subsidiaries as of December 31, 1995, and 1994, and the related consolidated
statements of income, changes in stockholders' equity, and cash flows for each
of the years in the three-year period ended December 31, 1995, and all related
schedules, which report appears in the December 31, 1995, annual report on Form
10-K of Norfolk Southern Corporation and subsidiaries. We also consent to the
reference to our firm under the heading "Experts" in the prospectus.
Our report dated January 23, 1996, contains an explanatory paragraph that refers
to changes in accounting methods related to income taxes, postretirement
benefits, and postemployment benefits.
KPMG PEAT MARWICK LLP
Norfolk, Virginia
January 21, 1997
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-----------------------------
FORM T - 1
STATEMENT OF ELIGIBILITY UNDER THE TRUST
INDENTURE ACT OF 1939 OF A CORPORATION
DESIGNATED TO ACT AS TRUSTEE
-----------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305 (b) (2) _________
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
13-3781471
(I. R. S. Employer
Identification No.)
100 Wall Street, New York, NY 10005
(Address of principal executive offices) (Zip Code)
-----------------------------
FOR INFORMATION, CONTACT:
Dennis J. Calabrese, President
First Trust of New York, National Association
100 Wall Street, 16th Floor
New York, NY 10005
Telephone: (212) 361-2506
-----------------------------
NORFOLK SOUTHERN CORPORATION
(Exact name of obligor as specified in its charter)
Commonwealth of Virginia 52-1188014
(State or other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
Three Commercial Place
Norfolk, Virginia 23510-2191
(Address of principal executive offices) (Zip Code)
-----------------------------
DEBT SECURITIES
<PAGE>
Item 1. GENERAL INFORMATION.
Furnish the following information as to the trustee - -
(a) Name and address of each examining or supervising authority to which
it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. LIST OF EXHIBITS.
Exhibit 1. Articles of Association of First Trust of New York, National
Association, incorporated herein by reference to Exhibit 1
of Form T-1, Registration No. 33-83774.
Exhibit 2. Certificate of Authority to Commence Business for First
Trust of New York, National Association, incorporated herein
by reference to Exhibit 2 of Form T-1, Registration No.
33-83774.
Exhibit 3. Authorization of the Trustee to exercise corporate trust
powers for First Trust of New York, National Association,
incorporated herein by reference to Exhibit 3 of Form T-1,
Registration No. 33-83774.
Exhibit 4. By-Laws of First Trust of New York, National Association,
Incorporated herein by reference to Exhibit 4 of Form T-1,
Registration No. 33-55851.
Exhibit 5. Not applicable.
Exhibit 6. Consent of First Trust of New York, National Association,
required by Section 321(b) of the Act, incorporated herein
by reference to Exhibit 6 of Form T-1, Registration No.
33-83774.
Exhibit 7. Report of Condition of First Trust of New York, National
Association, as of the close of business on September 30,
1996, published pursuant to law or the requirements of its
supervising or examining authority.
<PAGE>
Exhibit 8. Not applicable.
Exhibit 9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Trust of New York, National Association, a national
banking association organized and existing under the laws of the United States,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of
New York, and State of New York, on the 22nd day of January, 1997.
FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION
By: /s/ Frank J. Gillhaus, Jr.
-----------------------------
Vice President
<PAGE>
Exhibit 7
FIRST TRUST OF NEW YORK, N. A.
STATEMENT OF FINANCIAL CONDITION
AS OF 09/30/96
($000's)
09/30/96
----------
ASSETS
Cash and Due From Depository Institutions $31,930
Federal Reserve Stock 3,658
Fixed Assets 738
Intangible Assets 81,749
Other Assets 5,710
----------
TOTAL ASSETS $123,785
----------
----------
LIABILITIES
Other Liabilities 6,826
----------
TOTAL LIABILITIES 6,826
EQUITY
Common and Preferred Stock 1,000
Surplus 120,932
Undivided Profits (4,793)
----------
TOTAL EQUITY CAPITAL 116,959
TOTAL LIABILITIES AND EQUITY CAPITAL $123,785
----------
----------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
To the best of the undersigned's determination, as of this date the above
financial information
is true and correct.
First Trust of New York, N. A.
By: /s/ Frank J. Gillhaus, Jr.
--------------------------
Vice President
Date: January 22, 1997
