As filed with the Securities and Exchange Commission
on June 23, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NEWMONT MINING CORPORATION
(Exact name of Registrant as specified in its charter)
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<C> <C> <C>
Delaware 1700 Lincoln Street 13-1806811
(State or other jurisdiction of Denver, Colorado 80203 (I.R.S. Employer
incorporation or organization) (303) 863-7414 Identification No.)
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(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Timothy J. Schmitt, Esq.
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
(303) 863-7414
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Maureen Brundage, Esq. Francis J. Morison, Esq.
White & Case Davis Polk & Wardwell
1155 Avenue of the Americas 450 Lexington Avenue
New York, New York 10036 New York, New York 10017
(212) 819-8200 (212) 450-4000
Approximate date of commencement of proposed sale to the public: From
time to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. ( )
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)
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CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed
maximum Proposed maximum
Title of each class of Amount to be offering price aggregate offering Amount of
Securities to be registered registered (1) per unit (2) price (1)(2) registration fee
<S> <C> <C> <C> <C>
Common Stock, par value $1.60 per
share (3) . . . . . . . . . . . . . . . .
Preferred Stock, par value $5.00
per share (4) . . . . . . . . . . . . . .
Depositary Shares (5) . . . . . . . . . . . .
Convertible Debt Securities (6) . . . . . . .
Warrants to Purchase Common
Stock (7) . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . . . . . . . . US$300,000,000 100% US$300,000,000 $103,448.28
(1) In United States dollars or the equivalent thereof in foreign currency or currency units.
(2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 under the
Securities Act of 1933, as amended. The aggregate public offering price of the Common Stock, the Preferred
Stock, the Depositary Shares, the Convertible Debt Securities and the Warrants registered hereby will not exceed
$300,000,000.
(3) Such indeterminate number of shares of Common Stock as may from time to time be issued at indeterminate prices,
including Common Stock issuable upon conversion of Convertible Debt Securities and Preferred Stock that is
convertible and upon exercise of Warrants. Includes (i) equal value rights and (ii) preferred stock purchase
rights which, prior to the occurrence of certain events, will not be exercisable or evidenced separately from
the Common Stock.
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(4) Such indeterminate number of shares of Preferred Stock as may be issued from time to time at indeterminate
prices.
(5) Such indeterminate number of Depositary Shares evidenced by Depositary Receipts as may be issued in the event
the Registrant elects to offer fractional interests in shares of Preferred Stock registered hereunder. No
separate consideration will be received for the Depositary Shares.
(6) If any of the Convertible Debt Securities are issued at an original issue discount, the principal amount will be
increased such that the aggregate proceeds will equal $300,000,000.
(7) Warrants for the purchase of Common Stock may be offered and sold separately or together with other securities
registered hereunder.
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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.
PROSPECTUS
NEWMONT MINING CORPORATION
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
CONVERTIBLE DEBT SECURITIES
COMMON STOCK WARRANTS
Newmont Mining Corporation (the "Company") may from time to time
offer, together or separately, (i) shares of its common stock, par value
$1.60 per share ("Common Stock"), (ii) shares of its preferred stock, par
value $5.00 per share ("Preferred Stock"), which may be represented by
depositary shares (the "Depositary Shares") which will represent a fraction
of a share of Preferred Stock, (iii) convertible debt securities (the
"Convertible Debt Securities") consisting of debentures, notes or other
evidences of indebtedness representing unsecured obligations of the
Company, which may be either senior debt securities (the "Convertible
Senior Debt Securities") or subordinated debt securities (the "Convertible
Subordinated Debt Securities"), and which will be convertible into Common
Stock, and (iv) warrants to purchase Common Stock ("Warrants" and, together
with the Common Stock, the Preferred Stock, the Depositary Shares and the
Convertible Debt Securities, the "Securities"). The Securities offered
pursuant to this Prospectus may be issued in one or more series or
issuances, at prices and on terms to be determined at the time of sale and
to be set forth in supplements to this Prospectus. The Securities will be
limited to $300,000,000 aggregate public offering price (or its equivalent
(based on the applicable exchange rate at the time of sale) if Convertible
Debt Securities are issued with principal amounts denominated in one or
more foreign currencies or currency units). The Company may sell
Securities to or through underwriters, and also may sell Securities
directly to other purchasers or through agents. See "Plan of Distri-
bution."
Certain specific terms of the particular Securities in respect of
which this Prospectus is being delivered (the "Offered Securities") are set
forth in the accompanying Prospectus Supplement, including, where
applicable: the specific designation or title; aggregate amount or
principal amount; in the case of Preferred Stock, any dividend,
liquidation, voting, conversion and other rights, terms for sinking or
purchase fund payments and terms for redemption; in the case of Convertible
Debt Securities, denominations (which may be in United States dollars, in
<PAGE>
any other currency or in a composite currency), maturity, rate (which may
be fixed or variable) and time of payment of interest, if any, terms for
redemption or early repayment at the option of the Company or the holder,
terms for sinking or purchase fund payments and terms for conversion into
Common Stock; in the case of the Warrants, expiration date and terms of
exercise; the initial public offering price; the names of any underwriters
or agents; amount or the principal amounts, if any, to be purchased by
underwriters or agents and the compensation, if any, of such underwriters
or agents; the net proceeds to the Company and the other terms in
connection with the Offered Securities.
The Convertible Senior Debt Securities will rank equally with all
other unsubordinated and unsecured indebtedness of the Company. The
Convertible Subordinated Debt Securities will be subordinated in right of
payment to all Senior Indebtedness of the Company (as defined herein). See
"Description of Convertible Debt Securities -- Subordination of Convertible
Subordinated Debt Securities."
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 REPRE-
SENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1994.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such
reports, proxy statements and other information can be inspected and copied
at the public reference facilities maintained by the Commission at
Judiciary Plaza, Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the following regional offices of the Commission: Seven World Trade
Center, Suite 1300, New York, New York 10048; Northwestern Atrium Center,
500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of
such material can be obtained at prescribed rates by writing to the
Commission, Public Reference Section, 450 Fifth Street, N.W., Washington,
D.C. 20549. Such material can also be inspected at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005 on
which exchange the common stock of the Company is listed.
This Prospectus constitutes part of a registration statement
filed by the Company with the Commission under the Securities Act of 1933,
as amended (the "Act"). This Prospectus omits certain of the information
contained in the registration statement, and reference is hereby made to
the registration statement and to the exhibits relating thereto for further
information with respect to the Company and the Securities offered hereby.
Any statements contained herein concerning the provisions of any document
are not necessarily complete, and, in each instance, reference is made to
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 such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
<PAGE>
The Company hereby incorporates by reference in this Prospectus
the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1993 and the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994, which have been filed with the Commission. All
documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the 1934 Act after the date of this Prospectus and prior to the
termination of the offering of the Securities offered hereby shall be deem-
ed to be incorporated by reference in this Prospectus and to be a part
hereof from the date of filing of such documents. Any statement contained
herein or in a document all or a portion of which is incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is
or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person, including
beneficial owners, to whom a copy of this Prospectus has been delivered, on
the request of any such person, a copy of any or all of the documents
referred to above which have been or may be incorporated in this Prospectus
by reference, other than exhibits to such documents (unless such exhibits
are specifically incorporated by reference into such documents). Request
for such copies should be directed to the Office of the Secretary, Newmont
Mining Corporation, 1700 Lincoln Street, Denver, Colorado 80203, telephone:
(303) 863-7414.
THE COMPANY
Newmont Mining Corporation (the "Company") is a U.S. company
whose sole asset is a controlling equity interest in Newmont Gold Company
("NGC"). NGC is a worldwide company engaged in gold production,
exploration for gold and acquisition of gold properties. The Company owns
89.22% of the common stock, 100% of the preferred stock and an option to
purchase additional shares of the common stock of NGC.
NGC is the Company's sole subsidiary or interest. Based on 1993
production as set forth in published reports, NGC is the largest producer
of gold from North American operations. NGC produces gold on the Carlin
Trend in Nevada. NGC also produces gold through a 38% owned joint venture
in Peru, which commenced operations in August 1993. NGC additionally has a
50% owned joint venture in Uzbekistan and an 80% owned joint venture in
Indonesia, both of which are scheduled to commence gold production in 1995.
NGC also owns 100% of Newmont Exploration Limited ("NEL"), which, together
with various other affiliates, explores worldwide for gold. Management
believes that the combined exploration and development budget of NEL and
such other NGC affiliates for 1994 is one of the largest in the minerals
industry based on published information.
Since the Company's only asset is a controlling equity interest
in NGC, the rights of the Company to participate in any distribution of
assets of NGC upon its liquidation or reorganization or otherwise (and thus
the ability of holders of the Securities to benefit from such distribution)
are subject to the prior claims of creditors of NGC, except to the extent
that the Company may itself be a creditor with recognized claims against
NGC. Claims on NGC by creditors may include claims of holders of
indebtedness and claims of creditors in the ordinary course of business.
Such claims may increase or decrease, and additional claims may be incurred
in the future.
<PAGE>
The Company, incorporated in 1921, under the laws of Delaware,
maintains its principal executive offices at 1700 Lincoln Street, Denver,
Colorado 80203 (telephone: 303-863-7414).
RATIO OF EARNINGS TO FIXED CHARGES
AND RATIO OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The Company's ratio of earnings to fixed charges for each of the
periods indicated below were as follows:
Three Months Ended March 31, Year Ended December 31,
1994 1993 1992 1991 1990 1989
4.7 6.3 6.5 10.3 6.6 2.2
The Company's ratio of earnings to combined fixed charges and
preferred stock dividends for each of the periods indicated below were as
follows:
Three Months Ended March 31, Year Ended December 31,
1994 1993 1992 1991 1990 1989
2.6 3.4 5.9 10.3 6.6 2.2
The ratios set forth above were calculated based on information
from the Company's books and records. In computing such ratios, "earnings"
consists of income from continuing operations before provision for income
taxes and extraordinary items with adjustments for interest expense
(excluding capitalized interest), the amortization of previously capital-
ized interest, minority interests of subsidiaries with fixed charges and
undistributed income of less than fifty percent owned affiliates. "Fixed
charges" consists of interest expense (including amortization of debt
issuance expense), capitalized interest and one-third of rental expense
(which the Company believes is a reasonable approximation of the interest
factor of such rental expense). Preferred stock dividend requirements are
computed by increasing preferred stock dividends by an amount representing
the pre-tax earnings which would be required to cover such preferred stock
dividend requirements. The Company guarantees certain third party debt
which had total interest obligations of $0.2 million, $0.8 million, $3.3
million, $4.0 million, $4.5 million and $5.0 million for the three months
ended March 31, 1994 and the years ended December 31, 1993, 1992, 1991,
1990 and 1989, respectively. The Company has not been required to pay any
of these amounts, nor does it expect to have to pay any amounts; therefore,
such amounts have not been included in the ratio of earnings to fixed
charges and the ratio of earnings to combined fixed charges and preferred
stock dividends.
USE OF PROCEEDS
The net proceeds to the Company from the sale of the Offered
Securities will be used for general corporate purposes unless otherwise set
forth in the Prospectus Supplement.
DESCRIPTION OF CAPITAL STOCK
The authorized capital of the Company consists of 5,000,000
shares of Preferred Stock, par value $5.00 per share, issuable in series,
of which 2,875,000 shares of $5.50 Convertible Preferred Stock, par value
$5.00 per share (the "$5.50 Convertible Preferred Stock") were issued and
<PAGE>
outstanding as of March 24, 1994 and 240,000 shares of Series A Junior
Participating Preferred Stock, par value $5.00 per share (the "Junior
Preferred Shares") were reserved for issuance as of March 24, 1994, and
120,000,000 shares of Common Stock, par value $1.60 per share, of which
85,848,405 (adjusted to give effect to the 1.2481 shares to 1 share stock
split payable on April 21, 1994 to stockholders of record on March 31,
1994) were issued and outstanding as of March 24, 1994 and are fully paid
and nonassessable. Holders of the Company's capital stock have no
preemptive rights.
DESCRIPTION OF COMMON STOCK
The statements set forth below are summaries of certain
provisions relating to the Common Stock of the Company. These summaries
contain all material provisions, but do not purport to be complete and are
subject to, and are qualified in their entirety by, the provisions of the
Company's Restated Certificate of Incorporation, a copy of which is filed
as an exhibit to the Registration Statement of which this Prospectus forms
a part.
Dividend Rights
Subject to the prior rights as to dividends of any Preferred
Stock which may be outstanding from time to time, the Common Stock is
entitled to such dividends as may be declared by the Board of Directors out
of funds legally available therefor.
Voting Rights
Subject to the voting rights, if any, of any Preferred Stock
which may be outstanding from time to time, all voting rights are vested in
the holders of shares of the Common Stock, each share being entitled to one
vote.
Liquidation Rights
Subject to the prior rights of creditors and the holders of any
Preferred Stock which may be outstanding from time to time, the shares of
Common Stock are entitled, in the event of voluntary or involuntary
liquidation, dissolution or winding up, to share pro rata in the
distribution of all remaining assets.
Approval of Certain Mergers, Consolidations, Sales and Leases
Article NINTH of the Company's Restated Certificate of
Incorporation provides that, with certain exceptions noted below, the
affirmative vote of the holders of four-fifths of all classes of stock of
the Company entitled to vote in elections of directors (considered as one
class) shall be required (a) for the adoption of an agreement for the
merger or consolidation of the Company with any other corporation, or (b)
to authorize any sale or lease of all or any substantial part of the assets
of the Company to, or any sale or lease to the Company or any subsidiary
thereof in exchange for securities of the Company of any assets (except
assets having an aggregate fair market value of less than $10 million) of,
any other corporation, person or entity if, in either case, such other
corporation, person or entity is the beneficial owner, directly or
indirectly, of more than 10% of all outstanding shares of stock of the
Company entitled to vote in elections of directors (a "10% Holder"). Such
affirmative vote or consent shall be in addition to the vote of the holders
of the stock of the Company otherwise required by law or any agreement
between the Company and any national securities exchange.
<PAGE>
For the purposes of Article NINTH, any corporation, person or
entity shall be deemed to be the beneficial owner of any shares of stock of
the Company (i) which it has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or options, or
otherwise, or (ii) which are beneficially owned, directly or indirectly by
any other corporation, person or entity, with which it or its affiliates or
associates (as defined in the Restated Certificate of Incorporation) have
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting or disposing of stock of the Company, or which is its
affiliate or associate.
Article NINTH does not apply to any transaction with any other
corporation, person or entity (i) if the Board of Directors of the Company
has approved a memorandum of understanding with such other corporation,
person or entity with respect to such transaction prior to the time that
such other corporation, person or entity shall have become a 10% Holder or
(ii) in case of a corporation, if the Company and its subsidiaries own a
majority of the outstanding shares of all classes of stock entitled to vote
in elections of directors. Article NINTH can be altered or repealed only
upon the affirmative vote of the record holders of four-fifths of all
classes of stock of the Company entitled to vote in elections of directors,
considered as one class.
Article NINTH might be characterized as an anti-takeover
provision since it may render more difficult certain possible takeover
proposals to acquire control of the Company and make removal of management
of the Company more difficult.
Equal Value Rights Plan
Each outstanding share of Common Stock carries with it a dividend
distribution of one equal value right (an "Equal Value Right"). The terms
of the Equal Value Rights are set forth in a Rights Agreement, dated as of
September 23, 1987, as amended (the "Equal Value Rights Agreement"),
between the Company and Chemical Bank, as Rights Agent. The following is a
summary of the Equal Value Rights Agreement. This summary contains all
material provisions, but does not purport to be complete and is subject to,
and is qualified in its entirety by reference to, the provisions of the
Equal Value Rights Agreement. A copy of the Equal Value Rights Agreement
and the amendments thereto are filed as exhibits to the Registration
Statement of which this Prospectus forms a part.
Each Equal Value Right entitles the record holder to receive from
the Company on or after the date of any Extraordinary Transaction (as
hereinafter defined) an amount in cash equal to the amount, if any, by
which the Equal Value Price (as hereinafter defined) exceeds the sum of the
cash consideration and the fair market value of the non-cash consideration
paid for each share of Common Stock in the Extraordinary Transaction.
Unless earlier redeemed or unless an Extraordinary Transaction has there-
tofore occurred, the Equal Value Rights will expire at the close of
business on September 23, 1997.
The term "Extraordinary Transaction" means an event in which,
within two years of the Control Date (as hereinafter defined) the Company,
directly or indirectly, effects a merger, consolidation or other
extraordinary corporate transaction in which the Common Stock is changed
into or exchanged for securities, cash or other property. The term "Equal
Value Price" means the highest price per share paid by a Controlling Person
(as hereinafter defined) for any share of Common Stock acquired by it
within 91 days prior to and including the Control Date, as such price is
adjusted pursuant to the Equal Value Rights Agreement.
<PAGE>
The Equal Value Rights are evidenced by the certificates
representing outstanding shares of Common Stock, and no certificates
representing the Equal Value Rights have been distributed. The Equal Value
Rights will separate from the Common Stock and an Equal Value Distribution
Date will occur on the first date of public announcement by the Company or
a person (a "Controlling Person") who, together with all Affiliates and
Associates (as each term is defined in the Equal Value Rights Agreement) of
such person, shall be the beneficial owner of securities entitled to cast
50% or more of the votes in the election of directors of the Company, that
a Controlling Person has become such (a "Control Date"). Until the Equal
Value Distribution Date, (i) the Equal Value Rights will be evidenced by
the Common Stock certificates and will be transferred with and only with
such Common Stock certificates, and (ii) the transfer of any outstanding
Common Stock certificates will also constitute the transfer of the Equal
Value Rights associated therewith.
Until an Equal Value Right is exercised, the holder thereof, as
such, has no rights as a stockholder of the Company. At any time until a
Control Date, the Company may (but only with the concurrence of a majority
of the Continuing Directors (as defined in the Equal Value Rights
Agreement)) redeem the Equal Value Rights in whole, but not in part, at a
price of $0.02 per Equal Value Right.
The Equal Value Rights may have certain anti-takeover effects in
the event that a person or group proposes to acquire the Company in a
two-tier transaction in which all stockholders do not receive the same
price for their shares.
Stockholder Rights Plan
Each outstanding share of Common Stock carries with it one
preferred share purchase right (each a "Right"). The terms of the Rights
are set forth in a Rights Agreement, dated as of August 30, 1990, as
amended (the "Rights Agreement") between the Company and Chemical Bank, as
Rights Agent. The following is a summary of the terms of the Rights
Agreement. This summary contains all material provisions, but does not
purport to be complete and is subject to, and is qualified in its entirety
by reference to, the provisions of the Rights Agreement. A copy of the
Rights Agreement and the amendments thereto are filed as exhibits to the
Registration Statement of which this Prospectus forms a part.
Following the Distribution Date referred to below and except as
described below, each Right entitles the registered holder to purchase from
the Company one five-hundredth of a share (a "Preferred Share Fraction") of
the Series A Junior Participating Preferred Stock, par value $5.00 per
share, of the Company (the "Junior Preferred Shares"), at a purchase price
of $150 per Preferred Share Fraction, subject to adjustment (the "Purchase
Price"). Unless earlier redeemed by the Company or unless a transaction
described in Section 13(d) of the Rights Agreement has occurred, the Rights
will expire at the close of business on September 11, 2000 (the "Final
Expiration Date").
Ownership of the Rights is evidenced by the Common Stock
certificates representing shares then outstanding, and no separate
certificates representing the Rights have been distributed. The Rights
will separate from the Common Stock and a Distribution Date will occur upon
the earlier of (i) the close of business on the tenth day after the date of
a public announcement that a person (other than any Exempt Person (as
defined in the Rights Agreement)) or group of affiliated or associated
persons (an "Acquiring Person") has acquired, or obtained the right to
acquire, beneficial ownership of 15% or more of the outstanding Common
Stock (the "Stock Acquisition Date"), or (ii) the close of business on the
tenth business day after the date of the commencement of a tender offer or
<PAGE>
exchange offer that would result in a person or entity beneficially owning
15% or more of the outstanding Common Stock. Until a Distribution Date, (i)
the Rights will be evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates and (ii) the
transfer of any outstanding Common Stock certificates will also constitute
a transfer of the Rights associated therewith.
Except in the circumstances described below, after the
Distribution Date each Right will be exercisable into a Preferred Share
Fraction. Each Preferred Share Fraction carries voting and dividend rights
that are intended to produce the equivalent of one share of Common Stock,
which rights are subject to adjustment in the event of stock dividends,
subdivisions and combinations with respect to the Common Stock. In lieu of
issuing certificates for fractions of Junior Preferred Shares (other than
fractions which are integral multiples of one five-hundredth of a share),
the Company may pay cash in accordance with the Rights Agreement.
If a person becomes an Acquiring Person other than pursuant to
certain Board approved tender or exchange offers, each holder of a Right,
at any time following the Distribution Date, has the right to receive, upon
exercise, Common Stock (or, in certain circumstances, cash, property or
other securities of the Company) having a value equal to two times the
Purchase Price of the Right. In lieu of requiring payment of the Purchase
Price upon exercise of the Right following any such event, the Company may
provide that each Right be exchanged for one share of Common Stock (or
cash, property or other securities, as the case may be). Following the
occurrence of the event set forth in the first sentence of this paragraph,
all Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring Person will be
null and void.
In the event that, at any time following the Stock Acquisition
Date, (i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation (other
than pursuant to certain Board approved tender or exchange offers), or (ii)
50% or more of the Company's assets or earning power is sold or trans-
ferred, each holder of a Right (except Rights that previously have been
voided as set forth above) has the right to receive, upon exercise, common
stock of the acquiring company having a value equal to two times the
Purchase Price of the Right.
The Purchase Price payable, and the number of Preferred Share
Fractions or other securities or property issuable, upon exercise of the
Rights is subject to adjustment to prevent dilution as a result of certain
events described in the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, has no
rights as a stockholder of the Company. At any time until the earlier of
(i) the Stock Acquisition Date and (ii) the Final Expiration Date (but in
certain circumstances only with the concurrence of Continuing Directors (as
defined in the Rights Agreement)), the Company has the option to redeem the
Rights in whole, but not in part, at a price of $0.01 per Right.
The Rights have certain anti-takeover effects. The Rights may
cause substantial dilution to a person or group that attempts to acquire
the Company without conditioning the offer on the Rights being redeemed or
a substantial number of Rights being acquired. The Rights should not
interfere with any merger or other business combination approved by the
Board of Directors of the Company because the Rights are either redeemable
or do not go into effect under such circumstances.
DESCRIPTION OF PREFERRED STOCK
<PAGE>
The statements set forth below are summaries of certain
provisions relating to the Preferred Stock of the Company. These summaries
contain all material provisions, but do not purport to be complete and are
subject to, and are qualified in their entirety by, the provisions of the
Company's Restated Certificate of Incorporation and the Certificate of
Designations for both the $5.50 Convertible Preferred Stock and the Junior
Preferred Shares described below, copies of which are filed as exhibits to
the Registration Statement of which this Prospectus forms a part. In
addition, with respect to any particular series of Preferred Stock offered
hereby (or any series of Preferred Stock underlying Depositary Shares that
are offered hereby), the summaries set forth below of certain provisions of
the Preferred Stock are subject to, and are qualified in their entirety by,
the provisions of the Certificate of Designations relating to such
particular series of Preferred Stock, which will be filed with the
Commission at or prior to the time of the sale of such series of Preferred
Stock.
General
The Company's Restated Certificate of Incorporation (the
"Certificate of Incorporation") authorizes the issuance of 5,000,000 shares
of Preferred Stock in one or more series. The Board of Directors has the
power to fix various terms with respect to each series of Preferred Stock,
including designations, preferences, relative rights, qualifications,
limitations and restrictions. The $5.50 Convertible Preferred Stock and
the Junior Preferred Shares that may be issued in connection with the
Company's Shareholder Rights Plan (see "Description of Common Stock --
Shareholder Rights Plan" and "Description of Preferred Stock -- Junior
Preferred Shares") are the only series of Preferred Stock that the Board of
Directors of the Company has authorized for issuance by the Company.
Offered Securities
The Preferred Stock offered hereby shall have the dividend,
liquidation, redemption, conversion and voting rights set forth below
unless otherwise provided in the Prospectus Supplement relating to a parti-
cular series of the Preferred Stock. Reference is made to the Prospectus
Supplement relating to the particular series of the Preferred Stock offered
thereby for specific terms, including: (i) the title and stated value per
share of such Preferred Stock and the number of shares offered; (ii) the
price at which such Preferred Stock will be issued; (iii) the dividend rate
(or method of calculation), the dates on which dividends shall be payable,
whether such dividends shall be cumulative or noncumulative and, if
cumulative, the dates from which dividends shall commence to cumulate; (iv)
any redemption or sinking fund provisions of such Preferred Stock; (v) whe-
ther or not such Preferred Stock will be convertible into shares of Common
Stock of the Company and, if so, whether such conversion is mandatory or at
the option of the holder or of the Company, the conversion price and other
terms relating thereto; and (vi) any additional dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions of such Preferred Stock. The Preferred Stock
will, when issued, be fully paid and nonassessable.
Ranking. Unless otherwise provided in the Prospectus Supplement
relating to a particular series of Preferred Stock, each series of
Preferred Stock offered hereby will rank senior with respect to the payment
of dividends and the distribution of assets upon liquidation to any Junior
Preferred Shares and any series of Preferred Stock which by its terms is
expressly made junior to the Preferred Stock and will rank on a parity with
respect to the payment of dividends and the distribution of assets upon
liquidation with the $5.50 Convertible Preferred Stock and any other
outstanding series of Preferred Stock, other than the Junior Preferred
<PAGE>
Shares and any series of Preferred Stock which by its terms is expressly
made junior to the Preferred Stock offered hereby.
Dividend Rights. Out of the funds of the Company legally
available for dividends, the holders of Preferred Stock of each series will
be entitled to receive, when and as declared by the Board of Directors,
cash dividends at such rate, and payable at such times and for such
quarterly dividends periods as set forth in the Prospectus Supplement
relating to such series of Preferred Stock. Dividends on any shares of
Preferred Stock may be cumulative only if and to the extent set forth in
the Prospectus Supplement relating thereto.
No such dividend shall be paid or declared and set apart for
payment on any share of Preferred Stock for any quarterly dividend period
unless a dividend for the same quarterly dividend period and all past
quarterly dividend periods, if any, ending within such quarterly dividend
period, ratably in proportion to the respective annual dividend rates fixed
therefor, shall be or have been paid or declared and set apart for payment
on all shares of Preferred Stock of all series then outstanding and enti-
tled to receive dividends for such quarterly dividend period or for any
past quarterly dividend period, if any, ending within such quarterly
dividend period. In no event, so long as any Preferred Stock shall remain
outstanding, shall any dividend, other than a dividend payable in shares of
Common Stock or any other class of stock ranking junior to the Preferred
Stock as to the distribution of assets and the payment of dividends (the
Common Stock, and any such other class of stock being hereinafter sometimes
referred to as "junior stock"), be declared or paid upon, nor shall any
distribution be made upon, any junior stock, nor shall any shares of junior
stock be purchased or redeemed by the Company other than in exchange for
junior stock, nor shall any monies be paid or made available for a sinking
fund for the purchase or redemption of any junior stock, unless in each
instance dividends on all outstanding shares of Preferred Stock for all
past dividend periods shall have been paid and the dividend on all
outstanding shares of the Preferred Stock for the then applicable current
quarterly dividend period shall have been paid, or declared and a sum
sufficient for the payment thereof set apart.
Voting Rights. Except as indicated below or in the Prospectus
Supplement relating to a particular series of Preferred Stock, or except as
expressly required by applicable law, the holders of Preferred Stock will
not be entitled to vote. Except as indicated in the Prospectus Supplement
relating to a particular series of Preferred Stock, when and if any such
series is entitled to vote, each share in such series will be entitled to
one vote.
At any time when six quarterly dividends on any one or more
series of Preferred Stock entitled to receive cumulative dividends shall be
in default, the number of directors constituting the Board of Directors
shall be increased by two, and the holders of shares of all such cumulative
series of Preferred Stock at such time shall be entitled, voting as a
class, whether or not the holders thereof shall otherwise be entitled to
vote, to the exclusion of the holders of Common Stock and the holders of
any series of non-cumulative Preferred Stock, to vote for and elect two
members of the Board of Directors of the Company to fill such newly-created
directorships. At any time when six quarterly dividends on any one or more
series of non-cumulative Preferred Stock shall be in default, the number of
directors constituting the Board of Directors shall be increased by two,
and the holders of shares of all such non-cumulative series of Preferred
Stock at such time shall be entitled, voting as a class, whether or not the
holders thereof shall otherwise be entitled to vote, to the exclusion of
the holders of Common Stock and the holders of any series of cumulative
Preferred Stock, to vote for and elect two members of the Board of
Directors of the Company to fill such newly-created directorships. All
<PAGE>
rights of all series of Preferred Stock to participate in the election of
directors shall continue in effect, in the case of all series of Preferred
Stock entitled to receive cumulative dividends, until cumulative dividends
have been paid in full or set apart for payment on each cumulative series
which shall have been entitled to vote at the previous annual meeting of
stockholders, or special meeting held in place thereof, or, in the case of
all series of non-cumulative Preferred Stock, until non-cumulative
dividends have been paid in full or set apart for payment for four
consecutive quarterly dividend periods on each non-cumulative series which
shall have been entitled to vote at the previous annual meeting of
stockholders, or special meeting held in place thereof. Whenever the
holders of the Preferred Stock shall be divested of such voting right, the
directors so elected by the holders of Preferred Stock shall thereupon
cease to be directors of the Company and thereupon the number of directors
shall be reduced by two or four, as the case may be. Directors elected by
the holders of any one or more series of stock voting separately as a
class, may be removed only by a majority vote of such series, voting
separately as a class, so long as the voting power of such series shall
continue.
Liquidation Rights. In the event of any liquidation, dissolution
or winding up of the affairs of the Company, the holders of Preferred Stock
of a particular series shall be entitled to receive, out of the assets of
the Company available for distribution to its stockholders, an amount in
cash set forth in the Prospectus Supplement relating to such series of
Preferred Stock plus, in each case, an amount equal to all dividends
accrued and unpaid on such share up to the date fixed for distribution. If
upon any such liquidation, dissolution or winding up of the Company its net
assets shall be insufficient to permit the payment in full of the
respective amounts to which the holders of all outstanding Preferred Stock
of all series are entitled, the entire remaining net assets of the Company
shall be distributed among the holders of Preferred Stock of all series in
amounts proportionate to the full amounts to which they are respectively so
entitled.
Redemption. The Company, at its option, may redeem the shares of
any series of the Preferred Stock at such time or times, at such price or
prices and on such other terms and conditions as set forth in the
Prospectus Supplement relating to such series of Preferred Stock plus, in
each case, an amount equal to all dividends accrued and unpaid on such
series of Preferred Stock to and including the date fixed for redemption.
If less than all outstanding shares of any series of Preferred Stock are to
be redeemed, the shares to be redeemed shall be chosen by lot or pro rata
in such equitable manner as the Board of Directors may determine. Notice
of every such redemption shall be mailed not less than 30 nor more than 90
days in advance of the redemption date to the holders of record of the
shares of Preferred Stock so to be redeemed at their respective addresses
as the same shall appear on the books of the Company. From and after the
redemption date (unless the Company shall default in paying or providing
the funds necessary for the payment of the redemption price of the shares
so called for redemption) the right to receive dividends on all shares of
Preferred Stock so called for redemption shall cease to accrue, and all
rights of the holders of the shares of Preferred Stock so called for
redemption shall cease and terminate, except for the right of such holders
to receive the redemption price for such shares but without interest, and
such shares shall no longer be deemed outstanding.
$5.50 Convertible Preferred Stock
General. As of March 24, 1994, a total of 2,875,000 shares of
the $5.50 Convertible Preferred Stock were issued and outstanding. All of
the outstanding shares of $5.50 Convertible Preferred Stock are held on
deposit under the Deposit Agreement, dated as of November 15, 1992 (the
<PAGE>
"1992 Deposit Agreement"), among the Company, Chemical Bank, as Depositary
(the "1992 Depositary"), and all holders from time to time of depositary
receipts issued thereunder (the "1992 Depositary Receipts").
Ranking. The $5.50 Convertible Preferred Stock ranks senior with
respect to the payment of dividends and the distribution of assets upon
liquidation to any Junior Preferred Shares and any series of Preferred
Stock which by its terms is expressly made junior to the $5.50 Convertible
Preferred Stock. The $5.50 Convertible Preferred Stock will rank on a par-
ity with respect to the payment of dividends and the distribution of assets
upon liquidation with any other series of Preferred Stock Junior Preferred
Shares and any series of Preferred Stock which by its terms is expressly
made junior to the Preferred Stock offered hereby.
Dividend Rights. The holders of shares of the $5.50 Convertible
Preferred Stock are entitled to receive, when, as and if declared by the
Board of Directors of the Company, out of funds of the Company legally
available for payment, cumulative dividends at an annual rate of $5.50 per
share, payable quarterly on each March 15, June 15, September 15 and Decem-
ber 15. Dividends on the $5.50 Convertible Preferred Stock accrue and are
cumulative from the date of its original issue and are payable to the
holder of record on such respective record dates as may be fixed by the
Board of Directors in advance of the payment of each dividend. After full
cumulative dividends on the $5.50 Convertible Preferred Stock for all past
and current quarterly dividend periods have been paid in full, the $5.50
Convertible Preferred Stock is not entitled to participate with the Common
Stock in any further distributions of the Company.
Unless full cumulative dividends on the $5.50 Convertible
Preferred Stock have been paid, or declared and set aside for payment, no
dividends (other than in Common Stock or any other stock ranking junior to
the $5.50 Convertible Preferred Stock as to the distribution of assets and
the payment of dividends) may be paid or declared or other distribution
made upon the Common Stock or on any other stock of the Company ranking
junior to the $5.50 Convertible Preferred Stock as to the distribution of
assets and the payment of dividends nor may any Common Stock or any other
stock of the Company ranking junior to the $5.50 Convertible Preferred
Stock as to the distribution of assets and the payment of dividends be
redeemed or purchased by the Company (other than in exchange for Common
Stock or any other stock ranking junior to the $5.50 Convertible Preferred
Stock as to the distribution of assets and the payment of dividends) or any
payment made to or available for a sinking fund for the redemption of any
share of such stock.
Voting Rights. Except for the voting rights described below and
except as otherwise provided by law, the holders of shares of $5.50
Convertible Preferred Stock are not entitled to vote on any matter or to
receive notice of, or to participate in, any meeting of stockholders of the
Company. If six quarterly dividends payable on the $5.50 Convertible
Preferred Stock, or on any other Preferred Stock entitled to receive
cumulative dividends, are in default, the number of directors of the
Company will be increased by two and the holders of all outstanding shares
of such cumulative Preferred Stock as to which such default shall exist,
voting as a single class, will be entitled to elect the additional two
directors until all such cumulative dividends have been paid in full or set
apart for payment on each cumulative series then entitled to vote.
Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of $5.50
Convertible Preferred Stock will be entitled to receive out of the assets
of the Company available for distribution to stockholders $100.00 per share
in cash plus accrued and unpaid dividends before any distribution is made
to the holders of the Common Stock or any other stock of the Company
<PAGE>
ranking junior to the $5.50 Convertible Preferred Stock as to the
distribution of assets upon liquidation, dissolution or winding up of the
affairs of the Company.
Conversion Rights. Shares of $5.50 Convertible Preferred Stock
will be convertible at any time at the option of the holder thereof into
such number of whole shares of Common Stock as is equal to the aggregate
liquidation preference of the shares of $5.50 Convertible Preferred Stock
surrendered for conversion divided by the conversion price of $36.395 per
share of Common Stock, subject to adjustment in certain events as provided
in the Certificate of Designation for the $5.50 Convertible Preferred
Stock.
Optional Redemption. The $5.50 Convertible Preferred Stock will
not be redeemable prior to November 15, 1995. Thereafter the $5.50
Convertible Preferred Stock may be redeemed, in whole or in part, at the
option of the Company, at a redemption price declining from $103.85 per
share for redemptions occurring on or after November 15, 1995 to $100.00
per share for redemptions occurring on or after November 15, 2001, plus, in
each case, accrued and unpaid dividends to and including the date fixed for
redemption.
Effect of Mergers, Consolidations, Sales and Leases. Except as
otherwise provided in the Certificate of Designations for the $5.50
Convertible Preferred Stock in the event of any recapitalization of shares
of Common Stock, any consolidation or merger of the Company with or into
another person or any merger of another person into the Company, any sale
or transfer of all or substantially all of the assets of the Company and
its consolidated subsidiaries, or any compulsory share exchange, pursuant
to any of which holders of Common Stock shall be entitled to receive other
securities, cash or other property, then appropriate provision shall be
made so that the holder of each share of $5.50 Convertible Preferred Stock
then outstanding shall have the right thereafter to convert such share at
the conversion price, subject to adjustment as provided in the Certificate
of Designation, into (except, in certain events, as otherwise provided in
the Certificate of Designation) the kind and amount of securities, cash and
other property that would have been receivable upon such transaction by a
holder of the number of shares of Common Stock issuable upon conversion of
such share of $5.50 Convertible Preferred Stock immediately prior to such
transaction.
1992 Depositary Shares. The following is a summary of the 1992
Depositary Agreement. The summary contains all material provisions, but
does not purport to be complete and is subject to, and is qualified in its
entirety by, the provisions of the 1992 Deposit Agreement, a copy of which
is filed as an exhibit to the Registration Statement of which this
Prospectus forms a part.
Pursuant to the 1992 Deposit Agreement, depositary shares (the
"1992 Depositary Shares"), each evidencing one-half share of $5.50
Convertible Preferred Stock, were issued. As of March 24, 1994, a total of
5,750,000 1992 Depositary Shares were outstanding. Subject to the terms of
the 1992 Deposit Agreement, each owner of a 1992 Depositary Share is
entitled, in proportion to the applicable fraction of a share of $5.50
Convertible Preferred Stock represented by such 1992 Depositary Share, to
all the rights, preferences and privileges of the $5.50 Convertible
Preferred Stock represented thereby (including dividend, voting, conver-
sion, redemption and liquidation rights), and subject to all of the
limitations of the $5.50 Convertible Preferred Stock represented thereby,
contained in the Company's Restated Certificate of Incorporation and the
Certificate of Designation for the $5.50 Convertible Preferred Stock and
summarized above.
<PAGE>
The 1992 Depositary acts as transfer agent and registrar and
paying agent for the payment of dividends with respect to the 1992
Depositary Shares.
Whenever the Company redeems shares of $5.50 Convertible
Preferred Stock held by the 1992 Depositary, the 1992 Depositary will
redeem as of the same redemption date the number of 1992 Depositary Shares
representing shares of the $5.50 Convertible Preferred Stock so redeemed,
provided the Company shall have delivered to the 1992 Depositary cash
sufficient to effect a redemption of the $5.50 Convertible Preferred Stock
to be redeemed. Each 1992 Depositary Share will be redeemable for one-half
of the amount payable with respect to each share of $5.50 Convertible
Preferred Stock.
The 1992 Depositary will distribute all cash dividends or other
cash distributions received in respect of the $5.50 Convertible Preferred
Stock to the record holders of 1992 Depositary Receipts in proportion to
the number of such 1992 Depositary Shares owned by such holders on the
relevant record date. In the event of an offering to holders of $5.50
Convertible Preferred Stock of rights, preferences or privileges to
subscribe for any securities or any other rights, preferences or
privileges, the 1992 Depositary will make such rights, preferences or
privileges available to the record holders of 1992 Depositary Receipts
entitled thereto, unless the Company determines that it is not lawful or
feasible to make such rights, preferences or privileges available to some
or all holders of 1992 Depositary Receipts. The amount distributed in any
of the foregoing cases will be reduced by any amount required to be
withheld by the Company or the 1992 Depositary with respect to tax
liability.
Each record holder of 1992 Depositary Shares has the right, at
his option, to surrender 1992 Depositary Receipts representing one or more
whole shares of $5.50 Convertible Preferred Stock with written instructions
to the 1992 Depositary to convert a number of underlying whole shares of
$5.50 Convertible Preferred Stock which such 1992 Depositary Shares
represent into shares of the Company's Common Stock at any time. No
fractional shares of Common Stock will be issued upon conversion, and in
lieu thereof an amount will be paid in cash by the Company equal to the
market value of the fractional interest.
Upon receipt of notice of any meeting at which holders of $5.50
Convertible Preferred Stock are entitled to vote, the 1992 Depositary will
mail the information contained in such notice of meeting to the record
holders of 1992 Depositary Receipts. Each record holder of 1992 Depositary
Receipts on the record date (which will be the same date as the record date
for the $5.50 Convertible Preferred Stock) will be entitled to instruct the
1992 Depositary as to the exercise of the voting right pertaining to the
number of shares of $5.50 Convertible Preferred Stock (or fraction thereof)
represented by such holder's 1992 Depositary Shares. The 1992 Depositary
will endeavor, insofar as practicable, to vote the number of shares of
$5.50 Convertible Preferred Stock (or fraction thereof) represented by such
1992 Depositary Shares in accordance with such instructions, and the
Company has agreed to take all reasonable action which may be deemed neces-
sary by the 1992 Depositary in order to enable the 1992 Depositary to do
so. The 1992 Depositary will not vote the shares of $5.50 Convertible
Preferred Stock to the extent it does not receive specific written instruc-
tions from the holders of 1992 Depositary Receipts representing such shares
of $5.50 Convertible Preferred Stock.
The form of 1992 Depositary Receipts and any provision of the
1992 Deposit Agreement may at any time be amended by agreement between the
Company and the 1992 Depositary. However, any amendment which materially
and adversely alters the rights of holders of 1992 Depositary Receipts will
<PAGE>
not take effect unless such amendment has been approved by the holders of
at least a majority of the 1992 Depositary Shares then outstanding.
The 1992 Deposit Agreement may be terminated by the Company or
the 1992 Depositary only after (i) all outstanding 1992 Depositary Shares
have been redeemed and all shares of Common Stock, cash and other property
shall have been distributed to holders of 1992 Depositary Shares; (ii)
there has been a final distribution in respect of the $5.50 Convertible
Preferred Stock in connection with any voluntary or involuntary
liquidation, dissolution or winding-up of the Company and such distribution
has been distributed to the holders of the 1992 Depositary Shares; or (iii)
each share of $5.50 Convertible Preferred Stock has been converted into
shares of Common Stock and all shares of Common Stock, cash and other
property have been distributed to holders of 1992 Depositary Shares.
Junior Preferred Shares
General. A total of 240,000 shares of Junior Preferred Shares
have been reserved for issuance upon exercise of the Rights. See
"Description of Common Stock -- Stockholder Rights Plan."
Dividend Rights. Each Junior Preferred Share has a preferential
quarterly dividend payable on the first day of January, April, July and
October of each year (or such other quarterly payment date as shall be
specified by the Board of Directors) in an amount equal to 500 times the
dividend (other than a stock dividend) declared on each share of Common
Stock, but in no event less than $1.00.
Voting Rights. Each Junior Preferred Share will have 500 votes,
subject to adjustment as provided in the Certificate of Designations for
the Junior Preferred Shares, on all matters submitted to a vote of the
stockholders of the Company and, except as provided in the Certificate of
Designations for the Junior Preferred Shares, the Company's Restated
Certificate of Incorporation or by law, the holders of Junior Preferred
Shares shall vote together as one class.
Liquidation Rights. In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the holders of
Junior Preferred Shares will receive a preferred liquidation payment per
share equal to the greater of $500 per share (plus accrued dividends to the
date of distribution, whether or not earned or declared) or an amount per
share equal to 500 times the aggregate payment made per each share of
Common Stock, in each case subject to adjustment as provided in the
Certificate of Designations for the Junior Preferred Shares.
Effect of Mergers, Consolidations, Sales and Leases. In the
event of any merger, consolidation, combination or other transaction in
which shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, each Junior Preferred Share
will be similarly exchanged or changed in an amount per share equal to 500
times the aggregate amount and type of consideration received per share of
Common Stock, subject to adjustment as provided in the Certificate of
Designations for the Junior Preferred Shares.
Ranking of Junior Preferred Shares. The Junior Preferred Shares
rank junior to all other series of the Company's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of
any such series shall provide otherwise.
DESCRIPTION OF DEPOSITARY SHARES
General
<PAGE>
The Company may, at its option, elect to offer fractional
interests in shares of the Preferred Stock by means of the issuance of
Depositary Shares. The shares of any series of Preferred Stock underlying
the Depositary Shares will be deposited under a separate Deposit Agreement
(the "Deposit Agreement") between the Company and a bank or trust company
selected by the Company (the "Depositary"). The Prospectus Supplement
relating to a series of Depositary Shares will set forth the name and
address of the Depositary. The following statements are a summary of the
provisions of the Deposit Agreement and the depositary receipts (the
"Depositary Receipts") which evidence the Depositary Shares. The form of
Deposit Agreement and form of Depositary Receipts are filed as exhibits to
the Registration Statement of which this Prospectus forms a part. This
summary contains all material provisions, but does not purport to be
complete and is subject to, and is qualified in its entirety by, the
provisions of the Deposit Agreement and the Depositary Receipts.
Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will be entitled proportionately to all the rights,
preferences and privileges of the Preferred Stock underlying such
Depositary Share (including dividend, voting, conversion, redemption and
liquidation rights), and subject to all of the limitations of the
underlying Preferred Stock, contained in the Company's Restated Certificate
of Incorporation and the Certificate of Designation for such Preferred
Stock.
The Depositary Shares will be evidenced by Depositary Receipts
issued pursuant to the Deposit Agreement, each of which will represent the
fractional interest in a share of a particular series of the Preferred
Stock described in the Prospectus Supplement. (Section 2.01)
Dividends
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the Preferred Stock to the record
holders of Depositary Receipts relating to such Preferred Stock in
proportion to the numbers of such Depositary Shares owned by such holders
on the relevant record date. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any holder of
Depositary Shares a fraction of one cent, and any balance not so
distributed shall be added to and treated as part of the next sum received
by the Depositary for distribution to holders of Depositary Shares.
(Section 4.01)
Redemption of Depositary Shares
If a series of the Preferred Stock underlying the Depositary
Shares is subject to redemption, the Depositary Shares will be redeemed
from the proceeds received by the Depositary resulting from the redemption,
in whole or in part, of such series of the Preferred Stock held by the
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 the Preferred Stock. If less than all the Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed will be
selected by lot by the Board of Directors. (Section 2.04)
Voting
Upon receipt of notice of any meeting at which the holders of the
Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of
the Depositary Receipts evidencing Depositary Shares relating to such
Preferred Stock. Each record holder of such Depositary Receipts on the
record date (which will be the same date as the record date for the
<PAGE>
Preferred Stock) will be entitled to instruct the Depositary as to the
exercise of the voting rights pertaining to the number of shares of
Preferred Stock (or fraction thereof) represented by the Depositary Shares
evidenced by such Depositary Receipts. The Depositary will endeavor,
insofar as practicable, to vote the number of shares of Preferred Stock (or
fraction thereof) represented by such Depositary Shares in accordance with
such instructions, and the Company will agree to take all action which may
be deemed necessary by the Depositary in order to enable the Depositary to
do so. The Depositary will not vote the Preferred Stock to the extent that
it does not receive specific instructions from the holders of the
Depositary Receipts evidencing Depositary Shares representing such
Preferred Stock. (Section 4.05)
Withdrawal of Preferred Stock; Conversion Rights
Unless otherwise provided in the Prospectus Supplement relating
to a series of Depositary Shares, the owner of the Depositary Shares
evidenced thereby will not be entitled to delivery of any Preferred Stock
represented by such Depositary Shares.
If the shares of Preferred Stock underlying a series of
Depositary Shares are convertible into Common Stock as provided in the
Prospectus Supplement relating to such Depositary Shares, each record
holder of Depositary Shares has the right, at his option, to surrender
Depositary Receipts representing one or more whole shares of such Preferred
Stock with written instructions to the Depositary to convert a number of
underlying whole shares of Preferred Stock which such Depositary Shares
represent into shares of the Company's Common Stock at any time. No
fractional shares of Common Stock will be issued upon conversion, and in
lieu thereof an amount will be paid in cash by the Company equal to the
market value of the fractional interest. (Section 2.05)
Amendment of Form of Depositary Receipts and of Deposit Agreement
The form of Depositary Receipt evidencing the Depositary Shares
and any provision of the Deposit Agreement may at any time be amended by
agreement between the Company and the Depositary; provided, however, that
any amendment which materially and adversely alters the rights of the
existing holders of Depositary Shares will not be effective unless such
amendment has been approved by holders of at least a majority of the
Depositary Shares then outstanding. (Section 6.01)
Charges of Depositary
The Company will pay all fees, charges and expenses of the
Depositary, except for taxes (including transfer taxes, if any),
governmental charges and such other charges as are expressly provided in
the Deposit Agreement. Holders of Depositary Shares will pay all other
transfer and other taxes and governmental charges, and, in addition, such
other charges as are expressly provided in the Deposit Agreement to be for
their accounts. (Section 5.07)
Miscellaneous
The Company, or at the option of the Company, the Depositary,
will forward to the holders of Depositary Shares all reports and
communications from the Company which the Company may be required to
furnish to the holders of the underlying Preferred Stock. (Section 5.05)
Neither the Depositary nor the Company 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. (Section 5.02)
The obligations of the Company and the Depositary under the Deposit
<PAGE>
Agreement will be limited to performance in good faith of their duties
thereunder and they will not be obligated to prosecute or defend any legal
proceeding in respect of any Depositary Shares or Preferred Stock unless
satisfactory indemnity is furnished. They may rely upon written advice of
counsel or accountants, or information provided by persons presenting
Preferred Stock for deposit, holders of Depositary Shares or other persons
believed to be competent and on documents believed to be genuine. (Section
5.03)
Resignation and Removal of Depositary; Termination of the Deposit Agreement
The Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time
remove the Depositary, any such resignation or removal to take effect upon
the appointment of a successor Depositary and its acceptance of such
appointment. Such successor Depositary will be appointed by the Company
within 60 days after delivery of the notice of resignation or removal. The
Deposit Agreement may be terminated at the direction of the Company or by
the Depositary only after (i) all outstanding Depositary Shares have been
redeemed or (ii) there shall have been made a final distribution with
respect to the Preferred Stock underlying such Depositary Shares in
connection with any liquidation, dissolution or winding up of the Company
and such distribution shall have been distributed to the record holders of
the Depositary Receipts, or otherwise provided for. Upon termination of
the Deposit Agreement, the Depositary will discontinue the transfer of
Depositary Receipts, will suspend the distribution of dividends to the
holders thereof, and will not give any further notices (other than notice
of such termination) or perform any further acts under the Deposit
Agreement. Upon request of the Company, the Depositary shall deliver all
books, records, certificates evidencing Preferred Stock, Depositary
Receipts and other documents respecting the subject matter of the Deposit
Agreement to the Company. (Sections 5.04 and 6.02)
DESCRIPTION OF CONVERTIBLE DEBT SECURITIES
General
The Convertible Senior Debt Securities offered hereby will be
issuable in one or more series under an Indenture, (the "Senior Debt
Indenture"), between the Company and The Bank of New York, as Trustee. The
Convertible Subordinated Debt Securities offered hereby will be issuable in
one or more series under an Indenture (the "Subordinated Debt Indenture"),
between the Company and The Bank of New York, as Trustee. References to
the "Trustee" shall mean The Bank of New York as trustee under the Senior
Debt Indenture and/or the Subordinated Debt Indenture, as applicable. The
Senior Debt Indenture and the Subordinated Debt Indenture are each
sometimes referred to herein individually as the "Indenture" and are
referred to herein collectively as the "Indentures." The following
statements are a summary of certain provisions of the Trust Indenture Act
of 1939, as amended (the "TIA"), and the Indentures, the forms of which are
filed as exhibits to the Registration Statement of which this Prospectus
forms a part. This summary contains all material provisions, but does not
purport to be complete and is subject to, and is qualified in its entirety
by, the provisions of the TIA and the Indentures. Wherever references are
made to particular provisions of the Indentures or terms defined in the
Indentures are referred to, such provisions or definitions are incorporated
by reference as part of the statements made, and such statements are
qualified in their entirety by such references.
The aggregate principal amount of Convertible Debt Securities
which can be issued under the Indentures is unlimited. Except as otherwise
provided in the Prospectus Supplement relating to a particular series of
Convertible Debt Securities, neither of the Indentures limit the amount of
<PAGE>
other debt, secured or unsecured, which may be issued by the Company. The
Convertible Debt Securities may be issued in one or more series, as may be
authorized from time to time by the Company. (Section 2.4)
Reference is made to the Prospectus Supplement relating to the
particular series of Convertible Debt Securities offered hereby (the
"Offered Convertible Debt Securities") for the following terms, where
applicable, of the Offered Convertible Debt Securities: (1) the designa-
tion (including whether the Offered Convertible Debt Securities are
Convertible Senior Debt Securities or Convertible Subordinated Debt
Securities), the aggregate principal amount and the authorized
denominations of the Offered Convertible Debt Securities; (2) the
percentage of principal amount at which the Offered Convertible Debt
Securities will be issued; (3) the currency or currencies in which the
principal of and interest, if any, on the Offered Convertible Debt
Securities will be payable; (4) the date or dates on which the Offered
Convertible Debt Securities will mature; (5) the rate or rates at which the
Offered Convertible Debt Securities will bear interest, if any, or the
method by which such rate or rates will be determined; (6) the dates on
which and places at which such interest, if any, will be payable; (7) the
terms of any mandatory or optional repayment or redemption (including any
sinking fund); (8) the terms and conditions upon which conversion will be
effected, including the conversion price and the conversion period; (9) any
index used to determine the amount of payments of principal of and/or
interest, if any, on such Offered Convertible Debt Securities; (10) the
payment of any additional amounts with respect to the Offered Convertible
Debt Securities; (11) whether any Offered Convertible Debt Securities will
be issued as discounted Debt Securities; and (12) any other terms of the
Offered Convertible Debt Securities. Each of the Indentures provides that
Convertible Debt Securities of a single series may be issued at various
times, with different maturity dates and redemption and repayment provi-
sions, if any, and may bear interest at different rates. (Section 2.4)
Interest, if any, on the Offered Convertible Debt Securities is to be
payable to the persons, and in the manner, specified in the Prospectus
Supplement relating to such Offered Convertible Debt Securities. Unless
otherwise specified in the applicable Prospectus Supplement, the
Convertible Debt Securities will not be listed on any securities exchange.
The Convertible Senior Debt Securities will be unsecured, unsub-
ordinated indebtedness of the Company and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. The
Convertible Subordinated Debt Securities will be unsecured indebtedness of
the Company and, as set forth below under "Subordination of Convertible
Subordinated Debt Securities," will be subordinated in right of payment to
all Senior Indebtedness. As of March 31, 1994, Senior Indebtedness of the
Company on a consolidated basis aggregated approximately $278 million.
Some of the Convertible Debt Securities may be issued as
discounted Convertible Debt Securities (bearing no interest or interest at
a rate which at the time of issuance is below market rates) to be sold at a
substantial discount below their stated principal amount. Federal income
tax consequences and other special considerations applicable to any such
discounted Convertible Debt Securities will be described in the Prospectus
Supplement relating thereto.
The Prospectus Supplement for a particular series may indicate
terms for redemption at the option of a holder. Unless otherwise indicated
in the Prospectus Supplement, the covenants contained in each of the
Indentures and the Convertible Debt Securities would not provide for
redemption at the option of a holder nor necessarily afford holders
protection in the event of a highly leveraged or other transaction that may
adversely affect holders.
<PAGE>
Conversion Rights
Convertible Debt Securities of any series will be convertible
into Common Stock. The terms of such conversion will be set forth in the
Prospectus Supplement relating thereto. Such terms shall include the
initial conversion rate (subject to adjustment in certain events as
provided in each of the Indentures), whether conversion is mandatory, at
the option of the holder or at the option of the Company.
Global Notes, Delivery and Form
If so provided in the Prospectus Supplement accompanying this
Prospectus, the Convertible Debt Securities may be issued in the form of
one or more fully registered Global Notes that will be deposited with, or
on behalf of, The Depository Trust Company, New York, New York (the
"Depository") (or such other depository as may be specified in such
Prospectus Supplement) and registered in the name of the Depository's
nominee. The Depository currently limits the maximum denomination of any
single Global Note to $150,000,000. Unless otherwise provided in the
Prospectus Supplement, "Global Note" refers to the Global Note or Global
Notes representing an entire issue of Convertible Debt Securities. The
information in this section concerning the Depository and its book-entry
system has been obtained from the Depository. The Company takes no
responsibility for the accuracy thereof.
Except as set forth below, a Global Note may be transferred in
whole and not in part, only to another nominee of the Depository or to a
successor of the Depository or its nominee.
The Depository has advised that: it is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal
Reserve System, a "clearing corporation" within the meaning of the New York
Uniform Commercial Code and a "clearing agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. The Depository holds
securities for its participating organizations (collectively, the
"Participants") and facilitates the clearance and settlement of
transactions in such securities between Participants through electronic
book-entry changes in accounts of its Participants, thereby eliminating the
need for physical movement of securities certificates. Participants
include securities brokers and dealers, banks and trust companies, clearing
corporations and certain other organizations. Access to the Depository's
system is also available to other such banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a
Participant, either directly or indirectly (collectively, "indirect
participants"). Persons who are not Participants may beneficially own
securities held by or on behalf of the Depository only through Participants
or indirect participants. The Rules applicable to the Depository and its
Participants are on file with the Commission.
The Depository also has advised that pursuant to procedures
established by it (i) upon delivery to the Depositary of a Global Note, the
Depository will credit the accounts of Participants designated by the
Underwriter or Underwriters, if any, with the principal amount of the
Convertible Debt Securities purchased by such Underwriter or Underwriters,
and (ii) ownership of beneficial interests in a Global Note will be shown
on, and the transfer of the ownership thereof will be effected only
through, records maintained by the Depository (with respect to
Participants), the Participants (with respect to indirect participants and
certain beneficial owners) and the indirect participants (with respect to
all other beneficial owners). The laws of some states require that certain
persons take physical delivery in definitive form of securities which they
<PAGE>
own. Consequently, the ability to transfer beneficial interests in a
Global Note is limited to such extent.
So long as a nominee of the Depository is the registered owner of
a Global Note, such nominee for all purposes will be considered the sole
owner or holder of such Convertible Debt Securities under the respective
Indenture. Except as provided below, owners of beneficial interests in a
Global Note will not be entitled to have Convertible Debt Securities
registered in their names, will not receive or be entitled to receive
physical delivery of Convertible Debt Securities in definitive form, and
will not be considered the owners or holders thereof under such Indenture
for any purpose, including with respect to the giving of any directions,
instructions or approval to the Trustee thereunder. However, the
Depository has advised that pursuant to its customary practice with respect
to the giving of consents and votes, it will deliver an omnibus proxy to
the Trustee assigning the related holder's voting rights to the Participant
to whose account the Convertible Debt Securities are credited on the record
date, attached to which proxy will be a list of Participants' positions in
the relevant security as of the record date for a consent or vote.
Neither the Company, the Trustee, any paying agent nor any
registrar of the Convertible Debt Securities will have any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in a Global Note, or for
maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Principal and interest payments on the Convertible Debt
Securities registered in the name of the Depository's nominee will be made
in immediately available funds to the Depository's nominee as the
registered owner of the Global Note. Under the terms of each of the
Indentures, the Company and the Trustee will treat the persons in whose
names the Convertible Debt Securities are registered as the owners of such
Convertible Debt Securities for the purpose of receiving payment of
principal and interest on such Convertible Debt Securities and for all
other purposes whatsoever. Therefore, neither the Company, the Trustee nor
any payment agent has or will have any responsibility or liability for the
payment of principal or interest on the Convertible Debt Securities to
owners of beneficial interests in a Global Note or for any other matter
with respect to such owners.
The Depository has advised the Company and the Trustee that its
current practice is, upon receipt of any payment of principal or interest,
to immediately credit the accounts of the Participants with such payment in
amounts proportionate to their respective holdings in principal amount of
beneficial interests in a Global Note as shown in the records of the
Depository unless the Depository has reason to believe that it will not
receive payment on payable date. The Depository's current practice is to
credit such accounts, as to interest, in next-day funds and, as to
principal, in same-day funds. Payments by Participants and indirect
participants to owners of beneficial interests in a Global Note 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 the
Participants or indirect participants and not of the Depository, the
Company or the Underwriter or Underwriters, if any, subject to any
statutory or regulatory requirement as may be in effect from time to time.
Although the Depository has agreed to the foregoing procedures in
order to facilitate transfers of beneficial interest in a Global Note
between participants, it is under no obligation to perform or continue to
perform such procedures and such procedures may be discontinued at any
time. If one or more Global Notes are outstanding and if the Depository is
<PAGE>
at any time unwilling or unable to continue as depository and a successor
depository is not appointed by the Company within 90 days, the Company will
issue Convertible Debt Securities in definitive form in exchange for a
Global Note. In addition, the Company may at any time determine not to
have the Convertible Debt Securities represented by a Global Note and, in
such event, will issue Convertible Debt Securities in definitive form in
exchange for a Global Note. In either instance, an owner of a beneficial
interest in a Global Note will be entitled to have Convertible Debt
Securities equal in principal amount to such beneficial interest registered
in its name and will be entitled to physical delivery of such Convertible
Debt Securities in definitive form. Convertible Debt Securities so issued
in definitive form will be issued in denominations of $1,000 and integral
multiples thereof, in registered form only, without coupons, and the
Company will maintain in the Borough of Manhattan, the City of New York,
one or more offices or agencies where such Notes may be presented for
payment and may be transferred or exchanged. No service charge will be
made for any transfer or exchange of such Global Notes, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge or payment in connection therewith.
Same-Day Settlement in respect of Global Notes
Secondary trading in definitive long-term notes and debentures of
corporate issuers is generally settled in clearing-house or next-day funds.
In contrast, Global Notes held by the Depository will trade in the
Depository's Same-Day Funds Settlement System until maturity, and secondary
market trading activity in such Notes will therefore be required by the
Depository to settle in immediately available funds. No assurance can be
given as to the effect, if any, of settlement in immediately available
funds on trading activity in such Notes.
Certain Covenants
Certain Definitions Applicable to Covenants. "Attributable
Debt" shall mean, as to any particular lease under which the Company is at
the time liable, at any date as of which the amount thereof is to be
determined, the total net amount of rent required to be paid by the Company
under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate of interest per annum
implicit in the terms of such lease (as determined by any two of the
following: the chairman, the vice chairman, the president, any vice presi-
dent, the treasurer, the controller or the secretary of the Company)
compounded semiannually. The net amount of rent required to be paid under
any such lease for any such period shall be the amount of the rent payable
by the lessee with respect to such period, after excluding amounts required
to be paid on account of maintenance and repairs, insurance, taxes, assess-
ments, water rates and similar charges. In the case of any lease which is
terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall be
considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated.
"Consolidated Net Tangible Assets" shall mean the aggregate
amount of assets (less applicable reserves and other properly deductible
items) after deducting therefrom (i) all current liabilities (excluding any
thereof which are by their terms extendible or renewable at the option of
the obligor thereon to a time more than 12 months after the time as of
which the amount thereof is being computed and excluding current maturities
of long-term indebtedness and capital lease obligations) and (ii) all
goodwill, all as shown in the most recent consolidated balance sheet of the
Company and its Subsidiaries computed in accordance with generally accepted
accounting principles.
<PAGE>
"Funded Debt" shall mean all indebtedness for money borrowed
having a maturity of more than 12 months from the date as of which the
amount thereof is to be determined or having a maturity of less than 12
months but by its terms being renewable or extendible beyond 12 months from
such date at the option of the borrower.
"Principal Property" shall mean any mine, together with any
fixtures comprising a part thereof, and any plant or other facility,
together with any land upon which such plant or other facility is erected
and fixtures comprising a part thereof, used primarily for mining or pro-
cessing, in each case located in the United States of America and the net
book value of which on the date as of which the determination is being made
exceeds 5% of Consolidated Net Tangible Assets; provided, however, that
Principal Property shall not include (i) any mine, plant or facility which,
in the opinion of the Board of Directors of the Company, is not of material
importance to the total business conducted by the Company and its
Subsidiaries as an entirety or (ii) any portion of a particular mine, plant
or facility which, in the opinion of the Company, is not of material
importance to the use or operation of such mine, plant or facility.
"Restricted Subsidiary" shall mean any Subsidiary (i)
substantially all of the property of which is located, or substantially all
of the business of which is carried on, within the United States of America
and (ii) which owns a Principal Property; provided, however, that
Restricted Subsidiary shall not include any Subsidiary the primary business
of which consists of financing operations in connection with leasing and
conditional sales transactions on behalf of the Company and its
Subsidiaries, and/or purchasing accounts receivable and/or making loans
secured by accounts receivable or inventory, or which is otherwise
primarily engaged in the business of a finance company.
"Subsidiary" shall mean any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary
voting power for the election of directors of such corporation
(irrespective of whether or not at the time stock of any other class or
classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time directly or indirectly
owned by the Company, or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. (Section 1.1)
Limitation on Liens. For the benefit of each series of
Convertible Debt Securities issued under each of the Indentures, other than
any series of Convertible Subordinated Debt Securities issued under the
Subordinated Debt Indenture with respect to which series it is explicitly
provided otherwise in the Prospectus Supplement relating to such series
("Excluded Series"), the Company will not, nor will it permit any
Restricted Subsidiary to, incur, issue, assume or guarantee any indebt-
edness for money borrowed or any other indebtedness evidenced by notes,
bonds, debentures or other similar evidences of indebtedness for money
borrowed (hereinafter called "Debt") if such Debt is secured by pledge of,
or mortgage, deed of trust or other lien on any Principal Property owned by
the Company or any Restricted Subsidiary, or any shares of stock or Debt of
any Restricted Subsidiary (such pledges, mortgages, deeds of trust and
other liens being hereinafter called "Mortgage" or "Mortgages"), without
effectively providing that the Convertible Debt Securities of all series
(together with, if the Company shall so determine, any other Debt of the
Company or such Restricted Subsidiary then existing or thereafter created
which is not subordinate to the Convertible Debt Securities) shall be
secured equally and ratably with (or prior to) such secured Debt, so long
as such secured Debt shall be so secured, unless, after giving effect
thereto, the aggregate principal amount of all such secured Debt which
would otherwise be prohibited, plus all Attributable Debt of the Company
and its Restricted Subsidiaries in respect of sale and leaseback
<PAGE>
transactions (as defined below) which would otherwise be prohibited by the
covenant limiting sale and leaseback transactions described below would not
exceed the sum of 10% of Consolidated Net Tangible Assets; provided,
however, that these restrictions shall not apply to, and there shall be
excluded from secured Debt in any computation under these restrictions,
Debt secured by: (i) Mortgages on property of, or on any shares of stock
or Debt of, any corporation existing at the time such corporation becomes a
Restricted Subsidiary; (ii) Mortgages to secure indebtedness of any
Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(iii) Mortgages for taxes, assessments or governmental charges or levies in
each case (a) not then due and delinquent or (b) the validity of which is
being contested in good faith by appropriate proceedings, and material-
men's, mechanics', carriers', workmen's, repairman's, landlord's or other
like Mortgages, or deposits to obtain the release of such Mortgages;
(iv) Mortgages arising under an order of attachment or distraint or similar
legal process so long as the execution or enforcement thereof is
effectively stayed and the claims secured thereby are being contested in
good faith; (v) Mortgages to secure public or statutory obligations or to
secure payment of workmen's compensation or to secure performance in
connection with tenders, leases of real property, bids or contracts or to
secure (or in lieu of) surety or appeal bonds and Mortgages made in the
ordinary course of business for similar purposes; (vi) Mortgages in favor
of the United States of America or any State thereof, or any department,
agency or instrumentality or political subdivision of the United States of
America or any State thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or
other payments pursuant to any contract or statute (including Debt of the
Pollution Control or Industrial Revenue Bond type) or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of construction of the property subject to such
Mortgages; (vii) Mortgages on property (including any lease which should be
capitalized on the lessee's balance sheet in accordance with generally
accepted accounting principles), shares of stock or Debt existing at the
time of acquisition of such property by the Company or the Restricted
Subsidiary (including acquisition through merger or consolidation or
through purchase, transfer of the properties of a corporation as an
entirety or substantially as an entirety) or to secure the payment of all
or any part of the purchase price or construction cost or improvement cost
thereof or to secure any Debt incurred prior to, at the time of, or within
one year after, the acquisition of such property or shares or Debt or the
completion of any such construction (including any improvements on an
existing property) or the commencement of commercial operation of such
property, whichever is later, for the purpose of financing all or any part
of the purchase price or construction cost thereof; (viii) Mortgages
existing at the date of such Indenture; and (ix) any extension, renewal or
replacement (or successive extensions, renewals or replacements), as a
whole or in part, of any Mortgage referred to in the foregoing clauses (i)
to (viii), inclusive; provided, however, that (a) such extension, renewal
or replacement Mortgage shall be limited to all or a part of the same
property, shares of stock or Debt that secured the Mortgage extended,
renewed or replaced (plus improvements on such property) and (b) the Debt
secured by such Mortgage at such time is not increased; and provided
further, that these restrictions shall not apply to (i) any gold-based loan
or forward sale arrangement and (ii) Mortgages on property owned or leased
by the Company or any Restricted Subsidiary or in which the Company or any
Restricted Subsidiary owns an interest to secure the Company's or a
Restricted Subsidiary's proportionate share of any payments required to be
made to any Person incurring the expense of developing, exploring, or
conducting operations for the recovery, processing or sale of the mineral
resources of such owned or leased property, and any such loan, arrangement
or payment referred to in clauses (i) and (ii) of this proviso shall not be
deemed to constitute secured Debt and, shall not be included in any
computation under these restrictions. (Section 3.4)
<PAGE>
Limitation on Sales and Leasebacks. For the benefit of each
series of Convertible Debt Securities issued under each of the Indentures
other than any Excluded Series issued under the Subordinated Debt
Indenture, the Company will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any bank, insurance company
or other lender or investor (not including the Company or any Restricted
Subsidiary), or to which any such lender or investor is party, providing
for the leasing by the Company or any such Restricted Subsidiary for a
period, including renewals, in excess of three years, of any Principal
Property owned by the Company or such Restricted Subsidiary which has been
or is to be sold or transferred more than 270 days after the acquisition
thereof or after the completion of construction and commencement of full
operation thereof, by the Company or any such Restricted Subsidiary to such
lender or investor or to any person to whom funds have been or are to be
advanced by such lender or investor on the security of such Principal
Property (herein referred to as a "sale and leaseback transaction") unless
either: (i) the Company or such Restricted Subsidiary could create Debt
secured by a Mortgage on the Principal Property to be leased back in an
amount equal to the Attributable Debt with respect to such sale and
leaseback transaction without equally and ratably securing the Convertible
Debt Securities of all series pursuant to the provisions of the covenant on
limitation on liens described above (which provisions include the
exceptions set forth in clauses (i) through (ix) of such covenant) or (ii)
the Company, within 180 days after the sale or transfer shall have been
made by the Company or by any such Restricted Subsidiary, applies an amount
equal to the greater of (a) the net proceeds of the sale of the Principal
Property sold and leased back pursuant to such arrangement or (b) the fair
market value of the Principal Property so sold and leased back at the time
of entering into such arrangement (as determined by any two of the
following: the chairman, the vice chairman, the president, any vice
president, the treasurer, the controller or the secretary of the Company)
to (x) the purchase of property, facilities or equipment (other than the
property, facilities or equipment involved in such sale) having a value at
least equal to the net proceeds of such sale or (y) the retirement of
Funded Debt of the Company or any Restricted Subsidiary; provided, however,
that the amount required to be applied to the retirement of Funded Debt of
the Company shall be reduced by (a) the principal amount of any Convertible
Debt Securities of any series (or, if the Convertible Debt Securities of
any series are original issue discount Convertible Debt Securities, such
portion of the principal amount as may be due and payable with respect to
such series pursuant to a declaration in accordance with Section 4.1 of
such Indenture or if the Convertible Debt Securities of any series provide
that an amount other than the face thereof will or may be payable upon the
maturity thereof or a declaration of acceleration of the maturity thereof,
such amount as may be due and payable with respect to such securities
pursuant to a declaration in accordance with Section 4.1 of the Indenture)
delivered within 180 days after such sale or transfer to the Trustee for
retirement and cancellation and (b) the principal amount of Funded Debt,
other than the Convertible Debt Securities of any series, voluntarily
retired by the Company within 180 days after such sale or transfer.
Notwithstanding the foregoing, no retirement referred to in this clause
(ii) may be effected by payment at maturity or pursuant to any mandatory
sinking fund payment or any mandatory prepayment provision. (Section 3.5)
Consolidation, Merger, Sale, Conveyance and Lease. Each of the
Indentures permits the Company to consolidate or merge with or into any
other entity or entities, or to sell, convey or lease all or substantially
all of its property to any other entity; provided, however, (i) that the
person (if other than the Company) formed by such consolidation, or into
which the Company is merged or which acquires or leases substantially all
of the property of the Company, expressly assumes the Company's obligations
on the Convertible Debt Securities and under such Indenture and (ii) that
the Company or such successor entity shall not immediately after such
<PAGE>
consolidation or merger, or such sale, conveyance or lease, be in default
in the performance of any covenant or condition of such Indenture.
(Article Eight)
Events of Default, Waiver and Notice
As to any series of Convertible Debt Securities, an Event of
Default is defined in each of the Indentures as (a) default in the payment
of any installment of interest, if any, on the Convertible Debt Securities
of such series and the continuance of such default for a period of 30 days;
(b) default in the payment of the principal of (and premium, if any, on)
any of the Convertible Debt Securities of such series when due, whether at
maturity, upon redemption, by declaration or otherwise; (c) default in the
payment of a sinking fund installment, if any, on the Convertible Debt
Securities of such series; (d) default by the Company in the performance of
any other covenant or agreement contained in such Indenture for the benefit
of such series and the continuance of such default for a period of 90 days
after written notice as provided in such Indenture; (e) certain events of
bankruptcy, insolvency and reorganization of the Company; and (f) any other
Event of Default established with respect to Convertible Debt Securities of
that series. (Sections 2.4 and 4.1)
The Trustee shall, within 90 days after the occurrence of a
default with respect to Convertible Debt Securities of any series, give all
holders of Convertible Debt Securities of such series then outstanding
notice of all uncured defaults known to it (the term default to mean the
event specified above without grace periods); provided that, except in the
case of a default in the payment of principal (and premium, if any) or
interest, if any, on any Convertible Debt Security of any series, or in the
payment of any sinking fund installment with respect to Convertible Debt
Securities of any series, the Trustee shall be protected in withholding
such notice if it in good faith determines that the withholding of such
notice is in the interest of all holders of Convertible Debt Securities of
such series then outstanding. (TIA)
Each of the Indentures provides that if an Event of Default with
respect to Convertible Debt Securities of any series at the time
outstanding shall occur and be continuing, either the Trustee or the
holders of at least 25% in aggregate principal amount (calculated as
provided in such Indenture) of the Convertible Debt Securities of such
series then outstanding may declare the principal (or, in the case of
original issue discount Convertible Debt Securities, the portion thereof as
may be specified in the Prospectus Supplement relating to such series) of
the Convertible Debt Securities of such series and the interest accrued
thereon, if any, to be due and payable immediately. (Section 4.1)
Upon certain conditions such declarations may be annulled and
past defaults (except for defaults in the payment of principal (or premium,
if any) or interest, if any, on such Convertible Debt Securities not
theretofore cured) may be waived by the holders of not less than a majority
in aggregate principal amount (calculated as provided in each of the
Indentures) of the Convertible Debt Securities of such series then out-
standing. (Section 4.9)
Under each of the Indentures, the Company is required to file
with the Trustee annually a statement by certain officers of the Company to
the effect that to the best of their knowledge the Company is not in
default in the fulfillment of any of its obligations under such Indenture
or, if there has been a default in the fulfillment of any such obligation,
specifying each such default. (Section 3.9). Each of the Indentures
further requires that the Company file with the Trustee written notice of
the occurrence of any default or Event of Default thereunder within five
<PAGE>
business days of its becoming aware of any such default or Event of
Default. (Section 3.6)
Each of the Indentures provides that, if a default or an Event of
Default shall have occurred and be continuing, the holders of not less than
a majority in aggregate principal amount (calculated as provided in such
Indenture) of the Convertible Debt Securities of such affected series then
outstanding (with each such series voting separately as a class) shall have
the right to direct the time, method and place of conducting any proceeding
or remedy available to the Trustee, or exercising any trust of power
conferred on the Trustee by such Indenture with respect to Convertible Debt
Securities of such series. (Section 4.8)
Each of the Indentures provides that the Trustee shall be under
no obligation to exercise any of the rights or powers vested in it by such
Indenture at the direction of the holders of Convertible Debt Securities
unless such holders shall have offered to the Trustee reasonable security
or indemnity against expenses and liabilities. (Section 5.1(d))
Subordination of Convertible Subordinated Debt Securities
The obligation of the Company to make payment on account of the
principal of, and premium, if any, and interest, if any, on the Convertible
Subordinated Debt Securities will be subordinated and junior in right of
payment, as set forth in the Convertible Subordinated Debt Indenture, to
the prior payment in full of all Senior Indebtedness.
"Senior Indebtedness" means all the principal, premium, if any,
accrued and unpaid interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to the
Company whether or not a claim for post-filing interest is allowed in such
proceeding), of Indebtedness of the Company, whether any such Indebtedness
exists as of the date of the Subordinated Debt Indenture or shall
thereafter be created, incurred, assumed or guaranteed by the Company,
other than the following: (1) any Indebtedness as to which, in the
instrument evidencing such Indebtedness or pursuant to which such
Indebtedness was issued, it is expressly provided that such Indebtedness is
subordinate in right of payment to all Indebtedness of the Company not
expressly subordinated to such Indebtedness; (2) any Indebtedness which by
its terms refers explicitly to the Convertible Subordinated Debt Securities
and states that such Indebtedness shall not be senior, shall be pari passu
or shall be subordinated in right of payment to the Convertible
Subordinated Debt Securities; and (3) with respect to any series of
Convertible Subordinated Debt Securities, any Indebtedness of the Company
evidenced by Convertible Subordinated Debt Securities of the same or of
another series. Notwithstanding anything to the contrary in the foregoing,
Senior Indebtedness shall not include Indebtedness of the Company to a
subsidiary of the Company. (Section 1.1 of the Convertible Subordinated
Debt Indenture). "Indebtedness," when used with respect to the Company,
means, (i) indebtedness of the Company for money borrowed, (ii) guarantees
by the Company of indebtedness for money borrowed by any other person,
(iii) indebtedness of the Company evidenced by notes, debentures, bonds or
other similar instruments of indebtedness for payment of which the Company
is responsible or liable, by guarantees or otherwise (including purchase
money obligations), but shall not include any amounts owed to trade
creditors in the ordinary course of business and (iv) any deferral,
amendment, renewal, extension, supplement or refunding of any liability of
the kind described in any such indebtedness and guarantees. (Section 1.1
of the Subordinated Debt Indenture)
No payment or distribution shall be made by the Company on
account of principal of (or premium, if any) or interest, if any, on the
Convertible Subordinated Debt Securities, whether upon stated maturity,
<PAGE>
upon redemption or acceleration, or otherwise, or on account of the
purchase or other acquisition of the Convertible Subordinated Debt
Securities, whether upon stated maturity, upon redemption or acceleration,
or otherwise, if there exists a default in the payment of all or any
portion of principal of, premium, if any, or interest on any Senior
Indebtedness when due and the Trustee has received written notice thereof
from the indenture trustee or other trustee, agent or representative for
the respective issue of Senior Indebtedness (the "Representative"), and
such default shall not have been cured or waived or the benefits of this
sentence waived by or on behalf of the holders of such Senior Indebtedness.
In addition, if there shall have occurred and be continuing a default
(other than a default described in the preceding sentence) with respect to
any Senior Indebtedness pursuant to which the maturity thereof may be
accelerated (without further notice and after the expiration of any
applicable grace periods) and upon receipt by the Trustee of written notice
of such default from the Representative of such Senior Indebtedness (the
"Payment Notice"), the Company shall not make any payments on the
Convertible Subordinated Debt Securities until the earlier of (x) 179 days
after the date on which a Payment Notice has been given and (y) the date,
if any, on which the Trustee receives written notice from the
Representative who delivered the Payment Notice, that such default is cured
or waived or has ceased to exist or the related Senior Indebtedness is
discharged ("Payment Blockage Period"). No more than one Payment Notice is
permitted for any one default on Senior Indebtedness (which shall not bar
subsequent Payment Notices for other such defaults). All defaults on
Senior Indebtedness occurring within a 30-day period shall be treated as
one default on such Senior Indebtedness for purposes of the preceding
sentence. Notwithstanding the foregoing, no more than one Payment Blockage
Period may be commenced with respect to the Convertible Subordinated Debt
Securities during any 360-day period. A failure to make any payment with
respect to the Convertible Subordinated Debt Securities as a result of the
foregoing provisions will not limit the right of the holders of the
Convertible Subordinated Debt Securities to accelerate the maturity thereof
as a result of such payment default. (Section 12.3 of the Subordinated
Debt Indenture).
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding up or liquidation or
reorganization of the Company, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due
or to become due upon all Senior Indebtedness shall first be paid in full,
or payment thereof provided for to the satisfaction of the holders thereof,
before any payment or distribution will be made on account of the
redemption price or principal of (and premium, if any) or interest, if any,
on the Convertible Subordinated Debt Securities.
By reason of such subordination, in the event of liquidation or
insolvency of the Company, creditors of the Company who are holders of
Senior Indebtedness may recover more, ratably, than the holders of the
Convertible Subordinated Debt Securities.
Defeasance
Defeasance and Discharge. Each of the Indentures provides that
the Company will be discharged from any and all obligations in respect of
the Convertible Debt Securities of any series (except for certain
obligations to register the transfer or exchange of Convertible Debt
Securities of such series, to replace stolen, lost or mutilated Convertible
Debt Securities of such series, to maintain paying agencies and to hold
monies for payment in trust) upon the deposit with the Trustee, in trust,
of money and/or U.S. Government Obligations (as defined in such Indenture)
which through the payment of interest and principal in respect thereof in
<PAGE>
accordance with their terms will provide money in an amount sufficient to
pay the principal of and each installment of interest on the Convertible
Debt Securities of such series on the stated maturity of such payments in
accordance with the terms of the Indenture under which the Convertible Debt
Securities of such series were issued and the terms of the Convertible Debt
Securities of such series. (Sections 9.6 and 9.8) Such a trust may only
be established if, among other things, the Company delivers to the Trustee
an opinion of counsel (who may be counsel to the Company) stating that
either (i) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling or (ii) since the date of the
relevant Indenture there has been a change in the applicable Federal income
tax law, to the effect that holders of the Convertible Debt Securities of
such series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such defeasance had not occurred.
(Section 9.8)
Defeasance of Certain Covenants and Certain Events of Default.
Each of the Indentures provides that the Company may omit to comply with
the covenants regarding limitations on sale and leaseback transactions and
limitations on liens described above and Section 4.1(d) of such Indenture
(described in clause (d) under the caption "Events of Default" above),
which noncompliance shall not be deemed to be an Event of Default under
such Indenture and the Convertible Debt Securities of a series issued
thereunder, upon the deposit with the Trustee, in trust, of money and/or
U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide
money in an amount sufficient to pay the principal of and each installment
of interest on the Convertible Debt Securities of such series on the stated
maturity of such payments in accordance with the terms of such Indenture
and the Convertible Debt Securities of such series. The obligations of the
Company under such Indenture and the Convertible Debt Securities of such
series, other than with respect to the covenants referred to above, and the
Events of Default, other than the Event of Default referred to above, shall
remain in full force and effect. (Sections 9.7 and 9.8) Such a trust may
only be established if, among other things, the Company has delivered to
the Trustee an opinion of counsel (who may be counsel to the Company) to
the effect that the holders of the Convertible Debt Securities of such
series will not recognize income, gain, or loss for Federal income tax
purposes as a result of such defeasance of certain covenants and Events of
Default and will be subject to Federal income tax on the same amounts and
in the same manner and at the same times, as would have been the case if
such deposit and defeasance had not occurred. (Section 9.8)
In the event the Company exercises its option, with respect to
the Convertible Debt Securities of a series, to omit compliance with
certain covenants of the Indenture under which the Convertible Debt
Securities of such series were issued, as described in the preceding
paragraph, the Convertible Debt Securities of such series are declared due
and payable because of the occurrence of any Event of Default other than an
Event of Default described in clause (d) under the caption "Events of
Default" above, the amount of money and U.S. Government Obligations on
deposit with the Trustee will be sufficient to pay amounts due on the
Convertible Debt Securities of such series at the time of their stated
maturity but may not be sufficient to pay amounts due on the Convertible
Debt Securities of such series at the time of the acceleration resulting
from such Event of Default.
Modification of the Indentures
Each of the Indentures contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than a
<PAGE>
majority in aggregate principal amount (calculated as provided in such
Indenture) of the outstanding Convertible Debt Securities of all series
affected by such modification (all such series voting as a single class),
to modify such Indenture or any supplemental indenture or the rights of the
holders of the Convertible Debt Securities; provided that no such modi-
fication shall (i) extend the fixed maturity of any Convertible Debt
Security, or reduce the principal or premium amount thereof, or reduce the
rate or extend the time of payment of interest, if any, thereon, or make
the principal amount thereof or interest or premium, if any, thereon
payable in any coin or currency other than that provided in the Convertible
Debt Security, or reduce the portion of the principal amount of an original
issue discount Convertible Debt Security (or a Convertible Debt Security
that provides that an amount other than the face amount thereof will or may
be payable upon a declaration of acceleration of the maturity thereof) due
and payable upon acceleration of the maturity thereof or the portion of the
principal amount thereof provable in bankruptcy, or reduce any amount
payable upon redemption of any Convertible Debt Security, or reduce the
overdue rate thereof, or impair, if the Convertible Debt Securities provide
therefor, any right of repayment at the option of the holder of a
Convertible Debt Security, without the consent of the holder of each
Convertible Debt Security so affected, or (ii) reduce the aforesaid
percentage of Convertible Debt Securities the consent of the holders of
which is required for any such modification, without the consent of the
holder of each Convertible Debt Security so affected. (Section 7.2)
Each of the Indentures also permits the Company and the Trustee
to amend such Indenture in certain circumstances without the consent of the
holders of any Convertible Debt Securities to evidence the merger of the
Company or the replacement of the Trustee and for certain other purposes.
(Section 7.1)
Concerning the Trustee
Except during the continuance of an Event of Default, the Trustee
shall perform only such duties as are specifically set forth in each of the
Indentures. During the continuance of any Event of Default, the Trustee
shall exercise such of the rights and powers vested in it under such
Indenture and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of
his own affairs. (TIA)
The Trustee may acquire and hold Securities and, subject to
certain conditions, otherwise deal with the Company as if it were not
Trustee under such Indenture. (Section 5.3)
NGC currently conducts banking transactions with the Trustee in
the ordinary course of the NGC's business.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, evidenced by warrant certificates
(the "Warrant Certificates") for the purchase of Common Stock. Warrants
may be issued together with or separately from, any Securities offered by
any Prospectus Supplement and, if issued together with Securities, may be
attached to or separate from such Securities. The Warrants are to be
issued under one or more separate Warrant Agreements (each a "Warrant
Agreement") to be entered into between the Company and a bank or trust
company, as Warrant Agent, all as set forth in the Prospectus Supplement
relating to the particular issue of Warrants. The Warrant Agent will act
solely as an agent of the Company in connection with the Warrants and will
not assume any obligation or relationship of agency or trust for or with
any holders of Warrants or beneficial owners of Warrants. The statements
<PAGE>
set forth below are summaries of certain provisions of the Warrants and the
Warrant Agreements and are subject to the detailed provisions of the
Warrant Agreement. These summaries contain all material provisions, but do
not purport to be complete and are subject to, and are qualified in their
entirety by, all the provisions of the Warrants and the Warrant Agreement,
copies of which are filed as exhibits to the Registration Statement.
General
If Warrants are offered, reference is made to the Prospectus
Supplement which accompanies this Prospectus for a description of the
specific terms of the Warrants being offered thereby, including (i) the
specific designation and aggregate number of such Warrants, (ii) the
offering price and the currency or composite currencies for which Warrants
may be purchased, (iii) the aggregate amount of Common Stock purchasable
upon exercise of the Warrants, (iv) if applicable, the designation and
terms of the Securities with which the Warrants are issued, (v) if
applicable, the date on and after which the Warrants and the related
Securities will be separately transferable, (vi) the amount of Common Stock
purchasable upon exercise of one Warrant and the price or the manner of
determining the price and currency or composite currencies or other
consideration (which may include Securities) for which such amount of
Common Stock may be purchased upon such exercise, (vii) the date on which
the right to exercise the Warrants shall commence and the date on which
such right shall expire (the "Expiration Date"), (viii) the terms of any
mandatory or optional redemption by the Company, (ix) certain Federal
income tax consequences, (x) whether the Warrant Certificates will be
issued in registered or unregistered form, and (xi) any other special terms
pertaining to such Warrants. Unless otherwise specified in the applicable
Prospectus Supplement, the Warrants will not be listed on any securities
exchange.
Warrant Certificates may be exchanged for new Warrant
Certificates of different denominations, may (if in registered form) be
presented for registration of transfer and change and may be exercised at
an office or agency of the Warrant Agent maintained for that purpose. No
service charge will be made for any transfer or exchange of Warrant
certificates, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
(Section 1.05 of the Warrant Agreement) Prior to the exercise of their
Warrants, holders of Warrants will not have any of the rights of holders of
the Common Stock purchasable upon such exercise, including the right to
receive payments, if any, on the Common Stock purchasable upon such
exercise. (Section 3.01 of the Warrant Agreement)
Exercise of Warrants
Warrants may be exercised by delivery to the Warrant Agent of
payment as provided in the Prospectus Supplement of the applicable amount
required to purchase the Common Stock purchasable upon such exercise
together with certain information set forth on the reverse side of the
Warrant Certificate. Unless otherwise provided in the Prospectus
Supplement, upon receipt of such payment and the Warrant Certificate, a new
Warrant Certificate will be issued for the amount of unexercised Warrants.
(Section 2.01 of Warrant Agreement)
The exercise price payable and the number of shares of Common
Stock purchasable upon the exercise of each Warrant will be subject to
adjustment in certain events, including the issuance of a stock dividend to
holders of Common Stock or a combination, subdivision or relcassification
of Common Stock. No adjustment in the exercise price payable and the
number of shares purchasable upon exercise of the Warrants will be required
until cumulative adjustments require an adjustment of at least 1% thereof.
<PAGE>
The Company may, at its option, reduce the exercise price at any time. No
fractional shares will be issued upon exercise of Warrants, but the Company
will pay the cash value of any fractional shares otherwise issuable.
Notwithstanding the foregoing, in case of any consolidation, merger, or
sale or conveyance of the property of the Company as an entirety, the
holder of each outstanding Warrant shall have the right to the kind and
amount of shares of stock and other securities and property (including
cash) receivable by a holder of the number of shares of Common Stock into
which such Warrants were exercisable immediately prior thereto. (Sections
5.01 and 5.02 of the Warrant Agreement)
Modification of Warrant Agreement
The Warrant Agreement contains a provision permitting the Company
and the Warrant Agent, without the consent of any Warrant Holder, to
supplement or amend the Warrant Agreement in order to cure any ambiguity,
and to correct or supplement any provision contained therein which may be
defective or inconsistent with any other provision or to make other pro-
visions in regard to matters or questions arising thereunder which the
Company and the Warrant Agent may deem necessary or desirable and which do
not adversely affect the interests of the Warrant Holders. (Section 7.01
of the Warrant)
FEDERAL TAX CONSIDERATIONS AS A
REAL PROPERTY HOLDING CORPORATION
The Company believes that the Company would likely constitute a
United States real property holding corporation within the meaning of the
Internal Revenue Code of 1986, as amended (the "Code"). Under certain
provisions of the Code and Treasury Regulations thereunder, gain realized
by a non-United States person who would not ordinarily be subject to U.S.
federal income tax on gains would, under certain circumstances, be subject
to tax (the "special tax") on gain realized on the disposition (and
possible withholding tax on the proceeds from such disposition (the
"withholding tax")) of Securities, notwithstanding such non-United States
person's lack of other connections with the United States. However,
because the Common Stock of the Company is "regularly traded on an
established securities market" (within the meaning of Section 897(c)(3) of
the Code), under the Code and Temporary Treasury Regulations now in effect,
the special tax and the withholding tax would apply to the disposition by a
non-U.S. person of an interest in a class of Securities that is not
regularly traded on an established securities market only if on the date
such interest was acquired by such person it had a fair market value
greater than the fair market value on that date of 5% of the regularly
traded class of Securities with the lowest fair market value. However, if
such non-regularly traded class of Securities is convertible into a
regularly traded class of Securities, the special tax and the withholding
tax would apply to the disposition of an interest in such non-regularly
traded class of Securities only if on the date such interest was acquired
by such person it had a fair market value greater than the fair market
value on that date of 5% of the regularly traded class of Securities into
which it is convertible. The special tax (but, except in certain
circumstances, not the withholding tax) would likewise apply to a
disposition of an interest in a class of Securities that is regularly
traded on an established securities market by a non-U.S. person who
beneficially owns, directly or indirectly, more than 5% of such class of
Securities at any time during the five-year period immediately preceding
the disposition of the interest.
Certain United States federal tax consequences of an investment
in a class of Securities will, to the extent appropriate under the
<PAGE>
circumstances, be described in the Prospectus Supplement relating thereto.
Each prospective holder of Securities is urged to consult its own tax
advisors regarding the United States federal tax consequences of an
investment in such Securities, as well as the tax consequences under the
laws of any state, local or other United States or non-United States taxing
jurisdiction.
PLAN OF DISTRIBUTION
General. The Company may sell Offered Securities to or through
underwriters or dealers, and also may sell Offered Securities directly to
other purchasers or through agents.
The distribution of the Offered Securities may be effected from
time to time in one or more transactions at a fixed price or prices, which
may be changed, at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices.
In connection with the sale of Offered Securities, underwriters
may receive compensation from the Company or from purchasers of Offered
Securities for whom they may act as agents in the form of discounts,
concessions or commissions. Underwriters may sell Offered Securities to or
through dealers and such dealers may receive compensation in the form of
discounts, concessions and commissions from the Underwriters and
commissions from the purchasers for whom they may act as agents. Under-
writers, dealers and agents that participate in the distribution of Offered
Securities may be deemed to be underwriters, and any discounts or
commissions received by them from the Company and any profit on the resale
of Offered Securities by them may be deemed to be underwriting discounts
and commissions under the Act. Any such underwriter or agent will be
identified, and any such compensation received from the Company will be
described, in the Prospectus Supplement.
Except for the Common Stock, the Offered Securities will be a new
issue of securities with no established trading market. Underwriters and
agents to whom such Offered Securities are sold by the Company for public
offering and sale may make a market in such Offered Securities, but such
underwriters and agents will not be obligated to do so and may discontinue
any market making at any time without notice. No assurance can be given as
to the liquidity of the trading market for such Offered Securities.
Under agreements which may be entered into by the Company,
underwriters, dealers and agents who participate in the distribution of
Offered Securities may be entitled to indemnification by the Company
against certain liabilities, including liabilities under the Act.
Delayed Delivery Arrangements. If so indicated in the Prospectus
Supplement, the Company will authorize underwriters or other persons acting
as the Company's agents to solicit offers by certain institutions to
purchase Convertible Debt Securities from the Company pursuant to contracts
providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must
be approved by the Company. The obligations of any purchaser under any
such contract will be subject to the condition that the purchase of the
Convertible Debt Securities shall not at the time of delivery be prohibited
under the laws of the jurisdiction to which such purchaser is subject. The
underwriters and such other persons will not have any responsibility in
respect of the validity or performance of such contracts.
<PAGE>
VALIDITY OF SECURITIES
The validity of the Offered Securities will be passed upon for
the Company by White & Case, 1155 Avenue of the Americas, New York, New
York, and for the underwriters or agents, if any, by Davis Polk & Wardwell,
450 Lexington Avenue, New York, New York.
EXPERTS
The audited consolidated financial statements and schedules
incorporated by reference in this Prospectus have been audited by Arthur
Andersen & Co., independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in auditing and
accounting in giving said reports.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
SEC filing fee . . . . . . . . . . . . $103,448.28
Accounting fees and expenses . . . . . 2,500.00
Legal fees and expenses . . . . . . . 200,000.00
Blue Sky and Legal Investment
fees and expenses . . . . . . . . . . 20,000.00
Trustees' fees and expenses . . . . . . 9,000.00
Warrant Agent's fees . . . . . . . . . 1,500.00
Depositary's fees . . . . . . . . . . . 1,500.00
Transfer Agent's fees . . . . . . . . . 1,500.00
Rating agency fees . . . . . . . . . . 98,250.00
Printing and engraving expenses . . . . 20,000.00
Miscellaneous . . . . . . . . . . . . 2,301.72
Total . . . . . . . . . . . . . . . . $460,000.00
*All estimates except for filing fee.
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes
and empowers the Company to indemnify the directors, officers, employees
and agents of the Company against liabilities incurred in connection with,
and related expenses resulting from, any claim, action or suit brought
against any such person as a result of his relationship with the Company,
provided that such persons acted in good faith and in a manner such person
reasonably believed to be in, and not opposed to, the best interests of the
Company in connection with the acts or events on which such claim, action
or suit is based. The finding of either civil or criminal liability on the
part of such persons in connection with such acts or events is not
necessarily determinative of the question of whether such persons have met
the required standard of conduct and are, accordingly, entitled to be
indemnified. The foregoing statements are subject to the detailed
provisions of Section 145 of the General Corporation Law of the State of
Delaware.
<PAGE>
The By-Laws of the Company provide that each person who at any
time is or shall have been a director or officer of the Company, or is or
shall have been serving another corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity at the
request of the Company, and his heirs, executors and administrators, shall
be indemnified by the Company in accordance with and to the full extent
permitted by the General Corporation Law of the State of Delaware. Section
6 of the By-Laws of the Company facilitates enforcement of the right of
directors and owners to be indemnified by establishing such right as a
contract right pursuant to which the person entitled thereto may bring suit
as if the indemnification provisions of the By-Laws were set forth in a
separate written contract between the Company and the director or officer.
Item 16. Exhibits.
Exhibit
Number Description of Documents
1.1 - Proposed form of Underwriting Agreement relating to the
Common Stock, the Preferred Stock, the Depositary Shares and
the Warrants.
1.2 - Proposed form of Underwriting Agreement relating to the
Convertible Debt Securities.
4.1 - Restated Certificate of Incorporation dated as of July 13,
1987. Incorporated by reference to Exhibit 3 to
registrant's Form 10-K for the year ended December 31, 1987.
4.2 - By-Laws as amended through June 24, 1992 and adopted June
24, 1992. Incorporated by reference to Exhibit (3)b to
registrant's Form 10-K for the year ended December 31, 1992.
4.3 - Certificate of Designations, Preferences and Rights of $5.50
Convertible Preferred Stock, $5 Par Value, dated November
13, 1992. Incorporated by reference to Exhibit (3)c to
registrant's Form 10-K for the year ended December 31, 1992.
4.4 - Rights Agreement dated as of September 23, 1987 between
registrant and Manufacturers Hanover Trust Company as Equal
Value Agent relating to the Equal Value Rights.
Incorporated by reference to Exhibit 1 to registrant's
Registration Statement on Form 8-A dated September 25, 1987.
4.5 - First Amendment dated as of October 1, 1987 amending the
Rights Agreement dated as of September 23, 1987 between
registrant and Manufacturers Hanover Trust Company, as
Rights Agent. Incorporated by reference to Exhibit (4)b to
registrant's Form 10-K for the year ended December 31, 1990.
4.6 - Second Amendment dated as of May 1, 1989 amending the Rights
Agreement dated as of September 23, 1987 between registrant
and Manufacturers Hanover Trust Company, as Rights Agent.
Incorporated by reference to Exhibit 1 to registrant's Form
8 dated June 7, 1989.
4.7 - Rights Agreement dated August 30, 1990 between registrant
and Manufacturers Hanover Trust Company, as Rights Agent.
Incorporated by reference to Exhibit 1 to registrant's
Registration Statement on Form 8-A dated August 31, 1990.
<PAGE>
4.8 and 4.9 - First Amendment dated November 27, 1990 and Second Amendment
dated December 7, 1990 to the aforementioned Rights
Agreement dated August 30, 1990. Incorporated by reference
to Exhibits 2 and 3, respectively, to registrant's Form 8
dated December 7, 1990.
4.10 - Third Amendment dated February 26, 1992 to the
aforementioned Rights Agreement dated August 30, 1990.
Incorporated by reference to Exhibit 4 to registrant's Form
8 dated March 17, 1992.
4.11 - Deposit Agreement dated as of November 15, 1992 to
registrant, Chemical Bank, as Depositary and all holders
from time to time of depositary receipts issued thereunder.
Incorporated by reference to Exhibit 4(j) to registrant's
Registration Statement on Form S-3 (File No. 33-65274).
4.12 - Senior Debt Indenture between registrant and The Bank of New
York (including form of Convertible Senior Debt Securities).
4.13 - Subordinated Debt Indenture between registrant and The Bank
of New York (including form of Convertible Subordinated Debt
Securities).
4.14 - Form of Deposit Agreement (including form of Depositary
Receipt).
4.15 - Form of Warrant Agreement (including form of Warrant).
5 - Opinion of White & Case.
12.1 - Computation of Ratio of Earnings to Fixed Charges.
12.2 - Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends.
23.1 - Consent of Arthur Andersen & Co.
23.2 - Consent of White & Case (included in Exhibit 5).
24 - Power of Attorney of certain officers and directors.
25.1 - Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, Senior
Debt Indenture Trustee.
25.2 - Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York,
Subordinated Debt Indenture Trustee.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) to include any prospectus required by Section
10(a)(3) of the Act;
<PAGE>
(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; and
(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 infor-
mation in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the information required to be included in a post-
effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or Section 15(d) of the
1934 Act 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 Act, each filing of the Registrant's annual report
pursuant to Section 13(a) or 15(d) of the 1934 Act that is
incorporated by reference in this registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(5) that, for purposes of determining any liability under
the Act, 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) under the 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
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has
been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforce-
able. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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
<PAGE>
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Denver, State of
Colorado, on the 22nd day of June, 1994.
NEWMONT MINING CORPORATION
By /s/ Timothy J. Schmitt
Timothy J. Schmitt
Vice President, Secretary and
Assistant General Counsel
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature TitleDate
<S> <C> <C>
* June 22, 1994
Rudolph I.J. Agnew Director
* June 22, 1994
J.P. Bolduc Director
* June 22, 1994
Ronald C. Cambre Chief Executive
Officer and Vice
Chairman and
Director (Prin-
cipal Executive
Officer)
* June 22, 1994
Joseph P. Flannery Director
* June 22, 1994
Thomas A. Holmes Director
* June 22, 1994
Gordon R. Parker Chairman and
Director
* June 22, 1994
T. Peter Philip President and
Chief Operating
Officer and
Director
* June 22, 1994
<PAGE>
Robin A. Plumbridge Director
* June 22, 1994
William I.M. Turner,
Jr. Director
* June 22, 1994
Wayne W. Murdy Senior Vice
President and
Chief Financial
Officer (Prin-
cipal Financial
Officer)
* June 22, 1994
Gary E. Farmer Vice President
and Controller
(Principal
Accounting
Officer)
</TABLE>
*By /s/ Timothy J. Schmitt
Timothy J. Schmitt as
Attorney-in-fact
EXHIBIT INDEX
Exhibit
Number
1.1 - Proposed form of Underwriting Agreement relating to the
Common Stock, the Preferred Stock, the Depositary Shares and
the Warrants.
1.2 - Proposed form of Underwriting Agreement relating to the
Convertible Debt Securities.
4.1 - Restated Certificate of Incorporation dated as of July 13,
1987. Incorporated by reference to Exhibit 3 to
registrant's Form 10-K for the year ended December 31, 1987.
4.2 - By-Laws as amended through June 24, 1992 and adopted June
24, 1992. Incorporated by reference to Exhibit (3)b to
registrant's Form 10-K for the year ended December 31, 1992.
4.3 - Certificate of Designations, Preferences and Rights of $5.50
Convertible Preferred Stock, $5 Par Value, dated November
13, 1992. Incorporated by reference to Exhibit (3)c to
registrant's Form 10-K for the year ended December 31, 1992.
4.4 - Rights Agreement dated as of September 23, 1987 between
registrant and Manufacturers Hanover Trust Company as Equal
Value Agent relating to the Equal Value Rights.
Incorporated by reference to Exhibit 1 to registrant's
Registration Statement on Form 8-A dated September 25, 1987.
4.5 - First Amendment dated as of October 1, 1987 amending the
Rights Agreement dated as of September 23, 1987 between
registrant and Manufacturers Hanover Trust Company, as
<PAGE>
Rights Agent. Incorporated by reference to Exhibit (4)b to
registrant's Form 10-K for the year ended December 31, 1990.
4.6 - Second Amendment dated as of May 1, 1989 amending the Rights
Agreement dated as of September 23, 1987 between registrant
and Manufacturers Hanover Trust Company, as Rights Agent.
Incorporated by reference to Exhibit 1 to registrant's Form
8 dated June 7, 1989.
4.7 - Rights Agreement dated August 30, 1990 between registrant
and Manufacturers Hanover Trust Company, as Rights Agent.
Incorporated by reference to Exhibit 1 to registrant's
Registration Statement on Form 8-A dated August 31, 1990.
4.8 and 4.9 - First Amendment dated November 27, 1990 and Second Amendment
dated August 30, 1990. Incorporated by reference to
Exhibits 2 and 3, respectively, to registrant's Form 8 dated
December 7, 1990.
4.10 - Third Amendment dated February 26, 1992 to the
aforementioned Rights Agreement dated August 30, 1990.
Incorporated by reference to Exhibit 4 to registrant's Form
8 dated March 17, 1992.
4.11 - Deposit Agreement dated as of November 15, 1992 to
registrant, Chemical Bank, as Depositary and all holders
from time to time of depositary receipts issued thereunder.
Incorporated by reference to Exhibit 4(j) to registrant's
Registration Statement on Form S-3 (File No. 33-65274).
4.12 - Senior Debt Indenture between registrant and The Bank of New
York (including form of Convertible Senior Debt Securities).
4.13 - Subordinated Debt Indenture between the registrant and The
Bank of New York (including form of Convertible Subordinated
Debt Securities).
4.14 - Form of Deposit Agreement (including form of Depositary
Receipt).
4.15 - Form of Warrant (including form of Warrant).
5 - Opinion of White & Case.
12.1 - Computation of Ratio of Earnings to Fixed Charges.
12.2 - Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends.
23.1 - Consent of Arthur Andersen & Co.
23.2 - Consent of White & Case (included in Exhibit 5).
24 - Power of Attorney of certain officers and directors.
25.1 - Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York, Senior
Debt Indenture Trustee.
25.2 - Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of The Bank of New York,
Subordinated Debt Indenture Trustee.
<PAGE>
NEWMONT MINING CORPORATION
Equity Securities
Underwriting Agreement
, 19
Dear Sirs:
1. Introductory. Newmont Mining Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell from time to time (i)
shares of common stock of the Company (the "Common Shares"), (ii) shares of a
series of preferred stock of the Company (the "Preferred Shares") which may be
convertible into Common Shares, (iii) depositary shares (the "Depositary
Shares") which will represent a fraction of a Preferred Share or (iv) warrants
to purchase Common Shares (the "Warrants") which may be sold separately or
together with Common Shares. The Common Shares, the Preferred Shares, the
Depositary Shares and the Warrants are hereinafter referred to as the
"Securities". The Securities are registered under the registration statement
referred to in Section 2(a).
Particular issuances or series of the Securities will be sold
pursuant to a Terms Agreement referred to in Section 3 in the form of Annex I
attached hereto, for resale in accordance with the terms of offering
determined at the time of sale. Under such Terms Agreement, subject to the
terms and conditions hereof, the Company will agree to issue and sell, and the
firm or firms specified therein (the "Underwriters") will agree to purchase,
the amount of Securities specified therein (the "Firm Securities"). In such
Terms Agreement, the Company also may grant to such Underwriters, subject to
the terms and conditions set forth therein, an option to purchase additional
Securities in an amount not to exceed the amount specified in such Terms
Agreement (such additional Securities are hereinafter referred to as the
"Option Securities"). The Firm Securities and the Option Securities are
hereinafter collectively referred to as the "Offered Securities".
The representative or representatives of the Underwriters, if any,
specified in a Terms Agreement referred to in Section 3 are hereinafter
referred to as the "Representatives"; provided, however, that if the Terms
Agreement does not specify any representative of the Underwriters, the term
"Representatives", as used in this Agreement (other than in Section 5(c) and
the second sentence of Section 3) shall mean the Underwriters.
Each Common Share issued pursuant to a Terms Agreement referred to
in Section 3, upon conversion of Preferred Shares or Depositary Shares or upon
exercise of a Warrant will include (a) one preferred share purchase right (the
"Junior Preferred Rights") entitling the holder thereof to purchase, under
certain circumstances, one five-hundredth of a share of Series A Junior
Participating Preferred Stock, par value $5.00 per share, of the Company,
subject to adjustment and (b) one equal value right (the "Equal Value Rights")
entitling the holder thereof to receive from the Company, upon the occurrence
of certain events, a cash payment. The Junior Preferred Rights are to be
issued pursuant to a Rights Agreement dated as of August 30, 1990, as amended,
between the Company and Chemical Bank, as rights agent. The Equal Value
Rights are to be issued pursuant to a Rights Agreement dated as of
<PAGE>
September 23, 1987, as amended between the Company and Chemical Bank, as
rights agent.
Preferred Shares issued pursuant to the Terms Agreement referred to
in Section 3 will be issued in accordance with a Certificate of Designations
as specified in such Terms Agreement (the "Certificate of Designations").
Depositary Shares issued pursuant to the Terms Agreement referred to in
Section 3 will be issued under a Deposit Agreement (the "Deposit Agreement")
between the Company and a bank or trust company selected by the Company as
specified in such Terms Agreement (the "Depositary"). Warrants issued
pursuant to the Terms Agreement referred to in Section 3 will be issued under
a Warrant Agreement (the "Warrant Agreement") between a bank or trust company
selected by the Company as specified in such Terms Agreement (the "Warrant
Agent").
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33- ), including a prospectus,
relating to the Securities has been filed with the Securities and
Exchange Commission (the "Commission") and has become effective. Such
registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "Registration
Statement", and the prospectus included in such Registration Statement,
as supplemented as contemplated by Section 3 to reflect the terms of the
Offered Securities and the terms of offering thereof, as first filed with
the Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") of the Rules and Regulations of the Commission (the "Rules and
Regulations") under the Securities Act of 1933, as amended (the "Act"),
including all material incorporated by reference therein, is hereinafter
referred to as the "Prospectus".
(b) On the effective date of the registration statement relating to
the Securities, such registration statement conformed in all material
respects to the requirements of the Act and the Rules and Regulations and
did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all material respects to the requirements of
the Act and the Rules and Regulations, and neither of such documents will
include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, except that the
foregoing representations do not apply to statements in or omissions from
any of such documents based upon written information furnished to the
Company by any Underwriter specifically for use therein.
(c) Each document filed by the Company pursuant to the Exchange Act
which is incorporated by reference in the Prospectus complied when so
filed in all material respects with the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations
thereunder, and each document, if any, hereafter filed and so
incorporated by reference in the Prospectus (other than documents
incorporated by reference therein relating solely to securities other
than the Offered Securities) will comply when so filed in all material
respects with the Exchange Act and the rules and regulations thereunder.
(d) The Company has complied and, until the distribution of the
Offered Securities is completed, will comply with all of the provisions
of Florida H.B. 1771, codified as Section 517.075 of the Florida
<PAGE>
statutes, and all regulations promulgated thereunder relating to issuers
doing business with Cuba.
3. Purchase and Offering of Firm Securities. The obligation of the
Company to issue and sell any Firm Securities, the obligation of the
Underwriters to purchase the Firm Securities, and, if applicable, the
Company's granting to the Underwriters of an option to purchase any Option
Securities, will be set forth in a Terms Agreement (the "Terms Agreement")
which shall be in the form of an executed writing (which may be handwritten),
and may be evidenced by an exchange of telegraphic or any other rapid
transmission device designed to produce a written record of communications
transmitted at the time the Company determines to sell the Firm Securities.
The Terms Agreement will incorporate by reference the provisions of this
Agreement, except as otherwise provided therein, and will specify the
following: the firm or firms which will be Underwriters; the names of any
Representatives; the aggregate amount of the Firm Securities, and, if
applicable, the Option Securities; the terms of any option granted by the
Company to the Underwriters to purchase Option Securities; the amount of Firm
Securities to be purchased by each Underwriter; the initial public offering
price of the Offered Securities; the purchase price to be paid by the
Underwriters; and, if the Offered Securities are Preferred Shares, Depositary
Shares or Warrants, the terms thereof including, but not limited to, in the
case of Preferred Shares (including those represented by Depositary Shares),
the designation thereof, the dividend rate (or method of calculation), the
dates on which dividends will be payable, whether such dividends will be
cumulative or noncumulative and, if cumulative, the dates from which dividends
will commence to cumulate, any redemption or sinking fund provisions, and the
terms of conversion, if any, and, in the case of Depositary Shares, the
fraction of the relevant Preferred Share represented thereby and, in the case
of Warrants, the expiration date, the exercise price and the other terms for
the exercise thereof. The Terms Agreement will also specify the place of
delivery and payment for the Offered Securities and any details of the terms
of offering that should be reflected in the prospectus supplement relating to
the offering of the Offered Securities.
The time and date of delivery and payment of the Firm Securities
will be the time and date specified in the Terms Agreement, or such other time
not later than seven full business days thereafter as the Representatives and
the Company agree as the time for payment and delivery of the Firm Securities
(such time and date, being herein and in the Terms Agreement referred to as
the "Firm Closing Date"). The time and date of delivery and payment of the
Option Securities, if any, will be the time and date specified by the
Underwriters as provided in the Terms Agreement, which may be the Firm Closing
Date, but shall not be more than seven business days after the exercise of the
option nor in any event prior to the Firm Closing Date (such time and date
being herein and in the Terms Agreement referred to as the "Option Closing
Date"). As used herein and in the Terms Agreement, the term "Closing Date"
means, with respect to the Firm Securities, the Firm Closing Date and, with
respect to the Option Securities, the Option Closing Date.
The obligations of the Underwriters to purchase the Offered
Securities will be several and not joint. It is understood that the
Underwriters propose to offer the Offered Securities for sale as set forth in
the Prospectus. The Offered Securities delivered to the Underwriters on the
Closing Date will be in such denominations and registered in such names as the
Underwriters may request.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to Davis Polk & Wardwell, counsel
for the Underwriters, one signed copy of the registration statement relating
to the Securities, including all exhibits, in the form it became effective and
of all amendments thereto and that, in connection with each offering of
Offered Securities:
<PAGE>
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b).
(b) During the time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, (i) the Company
will advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and will afford
the Representatives a reasonable opportunity to comment on any such
proposed amendment or supplement, and (ii) the Company will also advise
the Representatives promptly of the filing of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part
thereof and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Company promptly will prepare and file with the Commission an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5.
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the Rules and Regulations (including, at the option of the Company, Rule
158 under the Act).
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement and the Pros-
pectus and during the time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, all amendments and
supplements to such documents (other than those solely relating to
securities other than the Offered Securities), in each case as soon as
available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the
Representatives reasonably designate and will continue such
qualifications in effect so long as required for the distribution;
provided, however, that in no event shall the Company be required to
qualify as a foreign corporation or as a dealer in securities or to take
any action that would subject it to general or unlimited service of
process in any such jurisdiction.
(g) The Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Securities under
the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statement, any preliminary
prospectus and the Prospectus and amendments and supplements thereto and
the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing any Agreement among Underwriters, this
<PAGE>
Agreement, any Terms Agreement, any Certificate of Designations, any
Deposit Agreement, any Warrant Agreement, any Blue Sky Memorandum and any
other documents in connection with the offering, purchase, sale and
delivery of the Offered Securities; (iii) all expenses in connection with
the qualification of the Offered Securities for offering and sale under
state securities laws as provided in Section 4(f), including the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
survey; (iv) any fees charged by securities rating services for rating
the Offered Securities; (v) any filing fees incident to any required
review by the National Association of Securities Dealers, Inc. of the
terms of the sale of the Offered Securities; (vi) the cost of preparing
the Offered Securities and any Common Shares issuable upon conversion or
exercise thereof; (vii) the fees and expenses in connection with the
listing, if any, of the Offered Securities or any Common Shares issuable
upon conversion or exercise thereof; (viii) the fees and expenses of any
transfer agent relating to any Common Shares or any Preferred Shares;
(ix) the fees and expenses of any Depositary relating to any Depositary
Shares; (x) the fees and expenses of any Warrant Agent relating to any
Warrants; and (xi) all other costs and expenses incident to the
performance of its obligations hereunder which are not otherwise
specifically provided for in this Section; provided, however, that,
except as provided in this Section, Section 6 and Section 8 hereof, the
Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of the Offered
Securities by them, and any advertising expenses connected with any
offers they may make.
(h) If and to the extent so provided in the Terms Agreement
referred to in Section 3, the Company, for the period therein provided,
will not, directly or indirectly, sell, contract to sell or otherwise
dispose of certain of its securities as specified in such Terms
Agreement.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the Firm Closing Date and the Option Securities on the Option
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the written
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of Arthur Andersen & Co., confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in
effect that:
(i) in their opinion, the financial statements and schedules
audited by them and included in the Prospectus comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have read the unaudited financial statements included
in the Prospectus;
(iii) on the basis of the reading referred to in (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
<PAGE>
(A) the unaudited financial statements, if any, included
or incorporated by reference in the Prospectus do not comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations and the Exchange Act and the related published
rules and regulations thereunder, as applicable, or are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year; or
(B) the unaudited capsule information, if any, included
in the Prospectus does not agree with the amounts set forth in
the unaudited consolidated financial statements from which it
was derived or was not determined on a basis substantially
consistent with that of the audited financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year; or
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date not
more than five days prior to the Closing Date, there was any
material change in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
director stock grants) or any material increase in consolidated
long-term debt of the Company and its subsidiaries or, at the
date of the latest available balance sheet read by such
accountants, there was any material decrease in consolidated
net current assets or net assets, as compared with amounts
shown on the latest balance sheet included or incorporated by
reference in the Prospectus; or
(D) for the period from the date of the latest income
statement included or incorporated by reference in the
Prospectus to the closing date of the latest available income
statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year and
with the period of corresponding length ended the date of the
latest income statement included in the Prospectus, in
consolidated sales, net income or in the ratio of earnings to
fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have carried out specified procedures, as requested
by the Underwriters, for the purpose of comparing specified dollar
amounts (or percentages derived from such dollar amounts) and other
financial information included in the Prospectus (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
<PAGE>
All financial statements and schedules included in material incorporated
by reference into the Prospectus shall be deemed included in the
Prospectus for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued and
no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or any Underwriter, shall be contemplated by the
Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any downgrading in the rating of any senior debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(ii) any suspension or limitation in trading in securities generally on
the New York Stock Exchange or any setting of minimum prices for trading
on such Exchange; (iii) if the Offered Securities are Common Shares,
Preferred Shares which are convertible into Common Shares (or Depositary
Shares evidencing such Preferred Shares) or Warrants, any suspension in
trading in the Common Shares on the New York Stock Exchange imposed by
the New York Stock Exchange or the Commission; (iv) any general banking
moratorium declared by Federal or New York authorities; or (v) any
outbreak or material escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
reasonable judgment of a majority in interest of the Underwriters,
including any Representatives, the effect of any such outbreak,
escalation, declaration, calamity or emergency is so material and adverse
so as to make it impractical or inadvisable to proceed with completion of
the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of White & Case, counsel for the Company, to the effect (to
the extent applicable to the Offered Securities) that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) The shares of capital stock of the Company outstanding on
the Closing Date have been duly authorized, are validly issued,
fully paid and non-assessable, and conform in all material respects
as to legal matters to the description thereof contained in the
Prospectus;
(iii) If the Offered Securities are Common Shares, the Common
Shares have been duly authorized and validly issued and, when
countersigned by the transfer agent therefor, and sold to the
Underwriters against payment therefor pursuant to this Agreement and
the Terms Agreement, will be validly issued, fully paid and
non-assessable; and the issuance of such Common Shares is not
subject to the preemptive rights of any stockholder of the Company;
(iv) If the Offered Securities are Preferred Shares or Depositary
Shares, the Preferred Shares have been duly authorized and validly
issued and, when countersigned by the transfer agent therefor and,
<PAGE>
if applicable, when deposited pursuant to the Deposit Agreement
against issuance of Depositary Shares and when the Preferred Shares
or the Depositary Shares, as the case may be, are sold to the
Underwriters against payment therefor pursuant to this Agreement and
the Terms Agreement, will be validly issued, fully paid and non-
assessable; and the issuance and, if applicable, deposit of such
Preferred Shares is not subject to the preemptive rights of any
stockholder of the Company;
(v) If the Offered Securities are Depositary Shares, the
depositary receipts (the "Depositary Receipts"), when issued and
delivered pursuant to the Deposit Agreement and this Agreement and
the Terms Agreement, will entitle the holders thereof to the rights
specified in such Depositary Receipts and in the Deposit Agreement;
(vi) If the Offered Securities are Preferred Shares or Depositary
Shares, the Certificate of Designations of the Company creating the
Preferred Shares has been duly filed with the Secretary of State of
Delaware and with all other offices where such filing is required;
(vii) If the Offered Securities are Depositary Shares, the Deposit
Agreement has been duly authorized, executed and delivered by the
Company, and the Deposit Agreement constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, or other similar
laws affecting the enforcement of creditors' rights generally, or by
general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law);
(viii) If the Offered Securities are Preferred Shares that are
convertible into Common Shares, or Depositary Shares evidencing
fractions of such Preferred Shares, the Common Shares have been duly
authorized and reserved for issuance by the Company upon conversion
of the Preferred Shares, and when so issued and countersigned by the
transfer agent therefor, will be validly issued, fully paid and non-
assessable; and the issuance of such Common Shares will not be
subject to the preemptive rights of any stockholder of the Company;
(ix) If the Offered Securities are Warrants, the Warrants have
been duly authorized, executed and delivered by the Company and,
when countersigned by the Warrant Agent and sold to the Underwriters
against payment therefor pursuant to this Agreement and the Terms
Agreement, will constitute valid and legally binding obligations of
the Company enforceable in accordance with their terms, except as
the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, or other similar laws affecting the
enforcement of creditor's rights generally, or by general equitable
principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law);
(x) If the Offered Securities are Warrants, the Warrant
Agreement has been duly authorized, executed and delivered by the
Company, and the Warrant Agreement constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its
terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, or other similar
laws affecting the enforcement of creditors' rights generally, or by
general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law);
(xi) If the Offered Securities are Warrants, the Common Shares
have been duly authorized and reserved for issuance by the Company
<PAGE>
upon exercise of the Offered Securities, and when so issued and
countersigned by the transfer agent therefor, will be validly
issued, fully paid and non-assessable; and the issuance of such
Common Shares will not be subject to the pre-emptive rights of any
stockholder of the Company;
(xii) The Offered Securities conform in all material respects to
the description thereof contained in the Prospectus;
(xiii) No consent, approval, authorization or order of, or filing
with, any New York State or Federal governmental agency or body or
any New York State or Federal court having jurisdiction over the
Company or any of its material properties is required to be obtained
or made by the Company for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions of
this Agreement), any Warrant Agreement and any Deposit Agreement,
except such as have been obtained and made under the Act and such as
may be required under state securities or Blue Sky laws (as to which
such counsel need express no opinion);
(xiv) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement), any Deposit
Agreement and any Warrant Agreement and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, the Restated
Certificate of Incorporation or By-Laws of the Company or any
statute, rule, regulation or order applicable to the Company or any
of its subsidiaries of which such counsel is aware of any federal or
New York State governmental agency or body or court having
jurisdiction over the Company or any of its material properties
(other than those that may be required under the Act and under
applicable state securities or Blue Sky laws as to which such
counsel need express no opinion) and the Company has full corporate
power and authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement);
(xv) The registration statement relating to the Securities, as of
its effective date, the Registration Statement and the Prospectus,
as of the date of the Terms Agreement, and any amendment or
supplement thereto, as of its date, appeared on their face to comply
as to form in all material respects with the requirements of the Act
and the Rules and Regulations thereunder; nothing has come to such
counsel's attention which causes it to believe that such
registration statement, as of its effective date, the Registration
Statement or the Prospectus, as of the date of the Terms Agreement,
or any such amendment or supplement, as of its date, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading; it being
understood that such counsel need express no opinion as to the
financial statements and schedules or other financial or statistical
data contained in any of the above-mentioned documents; and
(xvi) The Terms Agreement (including the provisions of this
Agreement) has been duly authorized, executed and delivered by the
Company.
(e) The Representatives shall have received an opinion, dated the
Closing Date, from Graham M. Clark, Jr., Esq., Senior Vice President and
General Counsel of the Company, to the effect that:
<PAGE>
(i) The Company and Newmont Gold Company have been duly
incorporated and are existing corporations in good standing in their
state of incorporation and have been duly qualified to do business
and are in good standing as foreign corporations in all
jurisdictions in which their respective ownership of property or the
conduct of their respective businesses requires such qualification
(except where the failure to so qualify would not have a material
adverse effect upon the Company and its subsidiaries taken as a
whole), and have all power and authority necessary to own their
respective properties and conduct the businesses in which they are
engaged as described in the Prospectus;
(ii) The execution, delivery and performance of the Terms
Agreement (including the provisions of this Agreement), any Warrant
Agreement and any Deposit Agreement and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under any order, rule or
regulation applicable to the Company or any of its subsidiaries of
which such counsel is aware of any court or governmental agency or
body having jurisdiction over the Company or any of its material
properties or, any material agreement or instrument to which the
Company or any material subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the
Restated Certificate of Incorporation or By-Laws of the Company or
any such subsidiary;
(iii) Such counsel is not aware of any consent, approval,
authorization or order of, or filing with, any governmental agency
or body or any court having jurisdiction over the Company or any of
its material properties that is required to be obtained or made by
the Company for the consummation of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement),
any Warrant Agreement and any Deposit Agreement, except such as may
be required under the Act and under state securities or Blue Sky
laws (as to which such counsel need express no opinion);
(iv) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and other
financial and statistical data contained therein, as to which such
counsel needs express no opinion), when they were filed with the
Commission complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder; and nothing has come to such counsel's
attention which causes it to believe that any of such documents,
when such documents were so filed contained an untrue statement of a
material fact and omitted to state a material fact necessary in
order to make the statements therein, in the light of the cir-
cumstances under which they were made when such documents were so
filed, not misleading;
(v) Nothing has come to such counsel's attention which causes
it to believe that the registration statement relating to the
Securities, as of its effective date, the Registration Statement or
the Prospectus, as of the date of the Terms Agreement, or any such
amendment or supplement, as of its date, contained any untrue state-
ment of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circum-
stances under which they were made) not misleading; it being
understood that such counsel need express no opinion as to the
<PAGE>
financial statements and schedules or other financial or statistical
data contained in any of the above-mentioned documents; and
(vi) The statements contained in the Company's Annual Reports
on Form 10-K under the heading "Item 3. Legal Proceedings", and the
statements contained in the Company's Quarterly Reports on Form 10-Q
under the heading "Item 1. Legal Proceedings", in each case, which
are incorporated or deemed to be incorporated by reference in the
Prospectus, insofar as such statements constitute a summary of the
legal documents, matters or proceedings referred to therein, fairly
present the information called for with respect to such legal
documents, matters and proceedings.
(f) The Representatives shall have received from Davis Polk &
Wardwell, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as they may require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated
the Closing Date, of the Chairman of the Board of Directors, the Vice
Chairman of the Board of Directors, the President, any Senior Vice
President or any Vice President and a principal financial or accounting
officer of the Company in which such officers, to their knowledge, shall
state that the representations and warranties of the Company in this
Agreement are true and correct at and as of the Closing Date, that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted by the Commission and
that, subsequent to the date of the most recent financial statements in
the Prospectus, there has been no material adverse change in the
financial position or results of operation of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
specifically for use therein; and provided, further, that the Company shall
not be liable to any Underwriter under the indemnity agreement in this subsec-
<PAGE>
tion (a) with respect to any preliminary prospectus or preliminary prospectus
supplement to the extent that any such loss, claim, damage or liability of
such Underwriter results from the fact that such Underwriter sold designated
securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if the
Company has previously furnished copies thereof to such Underwriter and the
loss, claim, damage or liability results from an untrue statement or omission
of a material fact contained in the preliminary prospectus which was corrected
in the Prospectus (as then amended, supplemented or modified).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement.
(d) If the indemnification provided for in this Section is
unavailable (other than as a result of the provisos contained in subsection
(a)) or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
<PAGE>
equitable considerations, including relative benefit. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d)
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or any other method of allocation which does
not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepre-
sentation (within the meaning of Section 11(f) of the Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter shall default
in its obligation to purchase the Offered Securities which it has agreed to
purchase under the Terms Agreement relating to such Offered Securities, the
Representatives may in their discretion arrange for themselves or another
party or other parties to purchase such Offered Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Offered Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Offered Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the purchase
of such Offered Securities, or the Company notifies the Representatives that
it has so arranged for the purchase of such Offered Securities, the
Representatives or the Company shall have the right to postpone the Closing
Date for such Offered Securities for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus
which in the reasonable opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this section with like effect as if such person had
<PAGE>
originally been a party to the Terms Agreement with respect to such Offered
Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate amount of such Offered Securities which remains unpurchased does not
exceed one-tenth of the aggregate amount of the Offered Securities, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the amount of Offered Securities which such Underwriter agreed to
purchase under the Terms Agreement relating to such Offered Securities and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the amount of Securities which such Underwriter agreed to
purchase under such Terms Agreement) of the Offered Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate amount of Offered Securities which remains unpurchased exceeds one-
tenth of the aggregate amount of the Offered Securities, as referred to in
subsection (b) above, or if the Company shall not exercise the right described
in subsection (b) above to require non-defaulting Underwriters to purchase
Offered Securities of a defaulting Underwriter or Underwriters, then the Terms
Agreement relating to such Offered Securities shall thereupon terminate,
without liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 4(g) and the indemnity and contribution
agreements in Section 6; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person
and will survive delivery of and payment for the Offered Securities. If the
Terms Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Offered Securities by the Underwriters under the Terms
Agreement is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4(g) and the
respective obligations of the Company and the Underwriters pursuant to Section
6 shall remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason, other than solely because of
the termination of this Agreement pursuant to Section 7 or the occurrence of
any event specified in clause (ii), (iv) or (v) of Section 5(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with
the offering of the Offered Securities, but the Company shall be under no
further liability to any Underwriter except as provided in Section 6.
9. Notices. All statements, requests, notices and agreements
hereunder shall be in writing and if to the Underwriters shall be sufficient
in all respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of
such facsimile transmission) to the address of the Representatives as set
forth in the Terms Agreement; and if to the Company shall be sufficient in all
respects if delivered or sent by first class mail, telex, or facsimile trans-
mission (confirmed in writing by overnight courier sent on the day of such
<PAGE>
facsimile transmission) to the address of the Company set forth in the
Registration Statement, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have
any right or obligation hereunder.
11. Time of Essence. Time shall be of the essence of each Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
12. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
13. Counterparts. This Agreement and each Terms Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return three counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By:
Name:
Title:
On behalf of each of the Underwriters
ANNEX I
NEWMONT MINING CORPORATION
Equity Securities
Terms Agreement
, 19
[Names and Addresses of
<PAGE>
Representatives]
Dear Sirs:
Newmont Mining Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated , 19 (the "Underwriting
Agreement"), between the Company on the one hand and , on
the other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the securities specified in Schedule II hereto
(the "Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that, if this Terms Agreement and the Underwriting Agreement
are dated different dates, each representation and warranty with respect to
the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to
be a representation and warranty as of the date of the Underwriting Agreement
in relation to the Prospectus (as therein defined) and also a representation
and warranty as of the date of this Terms Agreement in relation to the
Prospectus as amended or supplemented relating to the Securities which are the
subject of the Terms Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein
defined. The Representatives designated to act on behalf of each of the
Underwriters of Securities are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule II
hereto, the amount of Firm Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
[Subject to the terms and conditions set forth herein and in the
Terms Agreement, the Company hereby grants an option to the Underwriters,
severally and not jointly, to purchase in the aggregate up to the number of
Option Securities set forth on Schedule II at the same purchase price as shall
be applicable to the Firm Securities. The option hereby granted will expire
days after the date hereof and may be exercised, in whole or in part at one
time, only for the purpose of covering over-allotments that may be made in
connection with the offering and distribution of the Firm Securities. Such
option may be exercised upon written notice by you to the Company setting
forth the number of Option Securities as to which the several Underwriters are
exercising the option and the Option Closing Date. If the option is exercised
as to all or any portion of the Option Securities, the Option Securities as to
which the option is exercised shall be purchased by each Underwriter,
severally and not jointly, in the proportion that the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule I bears
to the total number of Firm Securities, subject to such adjustments as you, in
your discretion, shall make to eliminate any sales or purchases of fractional
Offered Securities. No Option Securities shall be sold or delivered unless
the Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Option Securities or any portion thereof
may be surrendered and terminated at any time before the exercise thereof upon
written notice by the Representatives to the Company.]
If the foregoing is in accordance with your understanding, please
sign and return to us counterparts hereof, and upon acceptance hereof
by you, on behalf of the Underwriters, this letter and such acceptance hereof,
<PAGE>
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be supplied to the Company upon request.
Very truly yours,
NEWMONT MINING CORPORATION
By
Name:
Title:
Accepted as of the date hereof:
By:
On behalf of each of the Underwriters
SCHEDULE I
Amount of Designated
Firm Securities
Underwriter to be Purchased
Total.........................
SCHEDULE II
Title of Securities:
Aggregate amount of Firm Securities:
Aggregate amount of Option Securities:
Price to Public:
$
Purchase Price by Underwriters:
$
<PAGE>
Specified funds for payment of purchase price:
[New York] Clearing House funds
If the Securities are Preferred Shares or Depositary Shares evidencing
fractions of Preferred Shares, the terms of such Preferred Shares are as
follows:
Designation:
Date of Certificate of Designations:
Dividend Rate or Amount:
[$ per share per annum] [specify other method of calculation]
[Dividends are noncumulative.] [Dividends are cumulative from
[specify date].]
Dividend Payment Dates:
[months and dates], commencing [date]
Conversion Rights:
[The Securities are not convertible.]
[The Securities will be [subject to mandatory conversion]
[convertible [at the option of the holder thereof] [at the option of
the Company]] into shares of Common Stock of the Company [Describe
conversion provisions, including the conversion price and
adjustments thereto.]]
Ranking:
[The Securities will rank senior with respect to the payment of
dividends and the distribution of assets upon liquidation to any
shares of the Company's Series A Junior Participating Preferred
Stock and any series of Preferred Stock which by its terms is
expressly made junior to the Securities. The Securities will rank
on a parity with respect to the payment of dividends and the
distribution of assets upon liquidation with any other series of
Preferred Stock.]
[The Securities will rank on a parity with respect to the payment of
dividends and the distribution of assets upon liquidation to any
shares of the Company's Series A Junior Participating Preferred
Stock and any series of Preferred Stock which by its terms is
expressly made junior to any other series of Preferred Stock. The
Securities will rank junior with respect to the payment of dividends
and the distribution of assets upon liquidation with any other
series of Preferred Stock.]
Liquidation Rights:
In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company, the holders of the
Securities will be entitled to receive out of the assets of the
Company available for distribution to stockholders $ per share
in cash plus accrued and unpaid dividends before any distribution is
made to the holders of the Common Stock or any other stock of the
Company ranking junior to the Securities as to the distribution of
assets upon liquidation, dissolution or winding up of the affairs of
the Company.
<PAGE>
Redemption Provisions:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company [on or after
, at the following redemption prices: If
[redeemed on or before , $ , and if] redeemed during the
12-month period beginning ,
Year Redemption
Price
and thereafter at $ per share, together in each case with accrued
and unpaid dividends to the redemption date]
[on any dividend payment date falling on or after ,
, at the election of the Company, at a redemption price
equal to the $ , plus accrued and unpaid dividends to the date of
redemption].
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to
retire shares on in each of the years through
at $ per share plus accrued and unpaid dividends] [,
together with [cumulative] [non-cumulative] redemptions at the
option of the Company to retire an additional shares in the
years through at $ per share plus accrued and unpaid
dividends.]
Voting Right Provisions:
[No voting rights except as specified in the Company's Restated
Certificate of Incorporation.]
[In addition to the voting rights specified in the Company's
Restated Certificate of Incorporation, the Securities [specify
voting rights].]
If the Securities are Depositary Shares, specify the following:
Depositary:
Deposit Agreement:
Deposit Agreement dated as of , 19 , between the Company
and the Depositary.
Terms of Deposit:
Each Depositary Share will represent of [one] share of the
Preferred Shares described above. [Insert of other relevant terms.]
If the Securities are Warrants, the terms thereof are as follows:
<PAGE>
Warrant Agent:
Warrant Agreement:
Warrant Agreement dated as of , 19 , between the Company
and the Warrant Agent.
Exercise Price:
$ per share, subject to adjustment as provided in the Warrant
Agreement.
Expiration Date:
Terms of Exercise:
[The Warrants may be exercised at any time [on or after ]
and prior to the close of business on the Expiration Date.]
Firm Closing Date:
[Time and date], 19
Closing Location:
Black Out Period:
[None]
[For a period beginning at the time of execution of the Terms Agreement
and ending days thereafter, [the Company will not, directly or
indirectly, offer, sell, contract to sell or otherwise dispose of Common
Shares or securities representing, convertible into or exchangeable for,
or any rights to purchase or acquire, Common Shares, other than (1)
pursuant to its employee stock option and restricted stock plans or its
directors' stock plan, each as in effect at the time of execution of the
Terms Agreement, (2) pursuant arrangements made with respect to any
person who becomes an employee of the Company, (3) upon exercise of the
Company's outstanding $5.50 Convertible Preferred Stock, par value $5.00
per share, or (4) pursuant to the Junior Preferred Rights] [the Company
will not, directly or indirectly, offer, sell, contract to sell or
otherwise dispose of Preferred Shares, Depositary Shares or securities
representing, convertible into or exchangeable for, or any rights to
purchase or acquire, Preferred Shares or Depositary Shares, other than
pursuant to the Junior Preferred Rights.]]
[Insert terms, if other than as above]
Names and addresses of Representatives:
Address for Notices, etc.:
[Other Terms](1)
(1) A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
<PAGE>
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus for the
offering.
NEWMONT MINING CORPORATION
Convertible Debt Securities
Underwriting Agreement
, 19
Dear Sirs:
1. Introductory. Newmont Mining Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell from time to time
certain of its debt securities (the "Debt Securities"), which are convertible
into shares of common stock of the Company (the "Common Shares"). The Debt
Securities and the Common Shares issuable upon conversion of the Debt
Securities are registered under the registration statement referred to in
Section 2(a).
Particular series of the Debt Securities will be sold pursuant to a
Terms Agreement referred to in Section 3 in the form of Annex I attached
hereto, for resale in accordance with the terms of offering determined at the
time of sale. The Debt Securities involved in any such offering are
hereinafter referred to as the "Offered Securities". The Offered Securities
will be unsecured and may be either (a) unsubordinated indebtedness of the
Company and will rank on a parity with all other unsecured and unsubordinated
indebtedness of the Company (the "Senior Debt Securities"), or (b)
subordinated in right of payment to all Senior Indebtedness of the Company as
defined in, and subject to the terms and conditions set forth in, the Terms
Agreement referred to in Section 3 relating to such Offered Securities (the
"Subordinated Debt Securities"). The Senior Debt Securities will be issued
under an indenture (the "Senior Indenture"), between the Company and The Bank
of New York, as Trustee, in one or more series, which series may vary as to
interest rates, maturities, conversion rights, redemption provisions, selling
prices and other terms, with all such terms for any particular series of the
Senior Debt Securities being determined at the time of sale. The Subordinated
Debt Securities will be issued under an indenture (the "Subordinated
Indenture"), between the Company and The Bank of New York, as Trustee, in one
or more series, which series may vary as to interest selling prices and other
terms, with all such terms for any particular of the Subordinated Debt
Securities being determined at the time of sale. As used herein the term
"Indenture" refers to, if the Offered Securities are Senior Debt Securities,
the Senior Indenture and, if the Offered Securities are Subordinated Debt
Securities, the Subordinated Indenture.
Each Common Share issued upon conversion of the Offered Securities
will include (a) one preferred share purchase right (the "Junior Preferred
Rights") entitling the holder thereof to purchase, under certain
circumstances, one five-hundredth of a share of Series A Junior Participating
Preferred Stock, par value $5.00 per share, of the Company, subject to
<PAGE>
adjustment and (b) one equal value right (the "Equal Value Rights") entitling
the holder thereof to receive from the Company, upon the occurrence of certain
events, a cash payment. The Junior Preferred Rights are to be issued pursuant
to a Rights Agreement dated as of August 30, 1990, as amended, between the
Company and Chemical Bank, as rights agent. The Equal Value Rights are to be
issued pursuant to a Rights Agreement dated as of September 23, 1987, as
amended between the Company and Chemical Bank, as rights agent.
The firm or firms which agree to purchase the Offered Securities are
hereinafter referred to as the "Underwriters" of such Securities, and the
representative or representatives of the Underwriters, if any, specified in a
Terms Agreement referred to in Section 3 are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives", as
used in this Agreement (other than in Section 5(c) and the second sentence of
Section 3) shall mean the Underwriters.
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33- ), including a prospectus,
relating to the Debt Securities and the Common Shares has been filed with
the Securities and Exchange Commission (the "Commission") and has become
effective. Such registration statement, as amended at the time of any
Terms Agreement referred to in Section 3, is hereinafter referred to as
the "Registration Statement", and the prospectus included in such Regis-
tration Statement, as supplemented as contemplated by Section 3 to
reflect the terms of the Offered Securities and the terms of offering
thereof, as first filed with the Commission pursuant to and in accordance
with Rule 424(b) ("Rule 424(b)") of the Rules and Regulations of the
Commission (the "Rules and Regulations") under the Securities Act of
1933, as amended (the "Act"), including all material incorporated by
reference therein, is hereinafter referred to as the "Prospectus".
(b) On the effective date of the registration statement relating to
the Debt Securities and the Common Shares, such registration statement
conformed in all material respects to the requirements of the Act, the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the Rules and Regulations and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
on the date of each Terms Agreement referred to in Section 3, the
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act, the Trust Indenture Act and the
Rules and Regulations, and neither of such documents will include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in light of the circumstances under which
they were made) not misleading, except that the foregoing representations
do not apply to statements in or omissions from any of such documents
based upon written information furnished to the Company by any
Underwriter specifically for use therein.
(c) Each document filed by the Company pursuant to the Exchange Act
which is incorporated by reference in the Prospectus complied when so
filed in all material respects with the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the rules and regulations
thereunder, and each document, if any, hereafter filed and so
incorporated by reference in the Prospectus (other than documents
incorporated by reference therein relating solely to securities other
than the Offered Securities) will comply when so filed in all material
respects with the Exchange Act and the rules and regulations thereunder.
(d) The Company has complied and, until the distribution of the
Offered Securities is completed, will comply with all of the provisions
of Florida H.B. 1771, codified as Section 517.075 of the Florida
<PAGE>
statutes, and all regulations promulgated thereunder relating to issuers
doing business with Cuba.
3. Purchase and Offering of Offered Securities. The obligation of
the Company to issue and sell any Offered Securities and the obligation of the
Underwriters to purchase the Offered Securities will be set forth in a Terms
Agreement (the "Terms Agreement") which shall be in the form of an executed
writing (which may be handwritten), and may be evidenced by an exchange of
telegraphic or any other rapid transmission device designed to produce a
written record of communications transmitted at the time the Company
determines to sell the Offered Securities. The Terms Agreement will
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the aggregate principal amount
of the Offered Securities, the principal amount of Offered Securities to be
purchased by each Underwriter, the initial public offering price of the
Offered Securities, the purchase price to be paid by the Underwriters and the
terms of the Offered Securities not already specified in the Indenture,
including, but not limited to, dates of payment and rate of interest, if any,
maturity, terms of conversion, any redemption or repayment provisions and any
sinking fund requirements and whether any of the Offered Securities may be
sold to institutional investors pursuant to Delayed Delivery Contracts (as
defined below). The Terms Agreement will also specify the time and date of
delivery and payment (such time and date, or such other time not later than
seven full business days thereafter as the Representatives and the Company
agree as the time for payment and delivery, being herein and in the Terms
Agreement referred to as the "Closing Date"), the place of delivery and
payment and any details of the terms of offering that should be reflected in
the prospectus supplement relating to the offering of the Offered Securities.
The obligations of the Underwriters to purchase the Offered Securities will be
several and not joint. It is understood that the Underwriters propose to
offer the Offered Securities for sale as set forth in the Prospectus. The
Offered Securities delivered to the Underwriters on the Closing Date will be
in definitive fully registered form, in such denominations and registered in
such names as the Underwriters may request.
If the Terms Agreement provides for sales of Securities pursuant
to delayed delivery contracts, the Company authorizes the Underwriters to
solicit offers to purchase Offered Securities pursuant to delayed delivery
contracts substantially in the form of Annex II attached hereto ("Delayed
Delivery Contracts") with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the
Closing Date, the Company will pay, as compensation, to the Representatives
for the accounts of the Underwriters, the fee set forth in such Terms
Agreement in respect of the principal amount of Offered Securities to be sold
pursuant to Delayed Delivery Contracts ("Offered Contract Securities"). The
Underwriters will not have any responsibility in respect of the validity or
the performance of Delayed Delivery Contracts. If the Company executes and
delivers Delayed Delivery Contracts, the Offered Contract Securities will be
deducted from the Offered Securities to be purchased by the several
Underwriters and the aggregate principal amount of Offered Securities to be
purchased by each Underwriter will be reduced pro rata in proportion to the
principal amount of Offered Securities set forth opposite each Underwriter's
name in such Terms Agreement, except to the extent that the Representatives
determine that such reduction shall be otherwise than pro rata and shall so
advise the Company. The Company will advise the Representatives not later
than 5:00 p.m., New York time, on the business day prior to the Closing Date
of the principal amount of Offered Contract Securities.
4. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish to Davis Polk & Wardwell, counsel
for the Underwriters, one signed copy of the registration statement relating
to the Debt Securities and the Common Shares, including all exhibits, in the
<PAGE>
form it became effective and of all amendments thereto and that, in connection
with each offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b).
(b) During the time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, (i) the Company
will advise the Representatives promptly of any proposal to amend or
supplement the Registration Statement or the Prospectus and will afford
the Representatives a reasonable opportunity to comment on any such
proposed amendment or supplement, and (ii) the Company will also advise
the Representatives promptly of the filing of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part
thereof and will use its best efforts to prevent the issuance of any such
stop order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act, the
Company promptly will prepare and file with the Commission an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5.
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earning statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and
the Rules and Regulations (including, at the option of the Company, Rule
158 under the Act).
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement and the Pros-
pectus and, during the time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, all amendments and
supplements to such documents (other than those solely relating to
securities other than the Offered Securities), in each case as soon as
available and in such quantities as are reasonably requested.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Representatives
reasonably designate and will continue such qualifications in effect so
long as required for the distribution; provided, however, that in no
event shall the Company be required to qualify as a foreign corporation
or as a dealer in securities or to take any action that would subject it
to general or unlimited service of process in any such jurisdiction.
(g) The Company will pay or cause to be paid the following:
(i) the fees, disbursements and expenses of the Company's counsel and
accountants in connection with the registration of the Debt Securities
and the Common Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement,
any preliminary prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to
the Underwriters and dealers; (ii) the cost of printing any Agreement
<PAGE>
among Underwriters, this Agreement, any Terms Agreement, any Indenture,
any Delayed Delivery Contracts, any Blue Sky and Legal Investment
Memoranda and any other documents in connection with the offering,
purchase, sale and delivery of the Offered Securities and the Common
Shares issuable upon conversion thereof; (iii) all expenses in connection
with the qualification of the Offered Securities for offering and sale
under state securities laws as provided in Section 4(f), including the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
and legal investment surveys; (iv) any fees charged by securities rating
services for rating the Offered Securities; (v) any filing fees incident
to any required review by the National Association of Securities Dealers,
Inc. of the terms of the sale of the Offered Securities; (vi) the cost of
preparing the Offered Securities and the Common Shares issuable upon
conversion thereof; (vii) the fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of counsel for any
Trustee in connection with any Indenture and the Offered Securities;
(viii) the fees and expenses in connection with the listing of the Common
Shares issuable on conversion of the Offered Securities; (ix) the fees
and expenses of any transfer agent relating to the Common Shares issuable
upon conversion of the Offered Securities; and (x) all other costs and
expenses incident to the performance of its obligations hereunder and
under any Delayed Delivery Contracts which are not otherwise specifically
provided for in this Section; provided, however, that, except as provided
in this Section, Section 6 and Section 8 hereof, the Underwriters will
pay all of their own costs and expenses, including the fees of their
counsel, transfer taxes on resale of any of the Offered Securities by
them, and any advertising expenses connected with any offers they may
make.
(h) If and to the extent so provided in the Terms Agreement
referred to in Section 3, the Company, for the period therein provided,
will not, directly or indirectly, sell, contract to sell or otherwise
dispose of certain of its securities as specified in such Terms
Agreement.
5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the written
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a letter, dated the
Closing Date, of Arthur Andersen & Co., confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating in
effect that:
(i) in their opinion, the financial statements and schedules
audited by them and included in the Prospectus comply in form in all
material respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have read the unaudited financial statements included
in the Prospectus;
(iii) on the basis of the reading referred to in (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
<PAGE>
(A) the unaudited financial statements, if any, included
or incorporated by reference in the Prospectus do not comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations and the Exchange Act and the related published
rules and regulations thereunder, as applicable, or are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated by
reference in the Company's Annual Report on Form 10-K for the
most recent fiscal year; or
(B) the unaudited capsule information, if any, included
in the Prospectus does not agree with the amounts set forth in
the unaudited consolidated financial statements from which it
was derived or was not determined on a basis substantially
consistent with that of the audited financial statements
included or incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal year; or
(C) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date not
more than five days prior to the Closing Date, there was any
material change in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
director stock grants) or any material increase in consolidated
long-term debt of the Company and its subsidiaries or, at the
date of the latest available balance sheet read by such
accountants, there was any material decrease in consolidated
net current assets or net assets, as compared with amounts
shown on the latest balance sheet included or incorporated by
reference in the Prospectus; or
(D) for the period from the date of the latest income
statement included or incorporated by reference in the
Prospectus to the closing date of the latest available income
statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year and
with the period of corresponding length ended the date of the
latest income statement included in the Prospectus, in
consolidated sales, net income or in the ratio of earnings to
fixed charges;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have carried out specified procedures, as requested
by the Underwriters, for the purpose of comparing specified dollar
amounts (or percentages derived from such dollar amounts) and other
financial information included in the Prospectus (in each case to
the extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of the
Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
All financial statements and schedules included in material incorporated
by reference into the Prospectus shall be deemed included in the
Prospectus for purposes of this subsection.
<PAGE>
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a). No stop
order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that
purpose shall have been instituted or, to the knowledge of the Company or
any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall
not have occurred (i) any downgrading in the rating of any senior debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(ii) any suspension or limitation in trading in securities generally on
the New York Stock Exchange or any setting of minimum prices for trading
on such Exchange; (iii) any suspension in trading in the Common Shares on
the New York Stock Exchange imposed by the New York Stock Exchange or the
Commission; (iv) any general banking moratorium declared by Federal or
New York authorities; or (v) any outbreak or material escalation of major
hostilities in which the United States is involved, any declaration of
war by Congress or any other substantial national or international
calamity or emergency if, in the reasonable judgment of a majority in
interest of the Underwriters, including any Representatives, the effect
of any such outbreak, escalation, declaration, calamity or emergency is
so material and adverse so as to make it impractical or inadvisable to
proceed with completion of the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of White & Case, counsel for the Company, to the effect
that:
(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under the Trust
Indenture Act; the Offered Securities have been duly authorized; the
Offered Securities other than any Offered Contract Securities have
been duly executed, authenticated, issued and delivered; the
Indenture and the Offered Securities other than any Offered Contract
Securities constitute, and any Offered Contract Securities, when
executed, authenticated, issued and delivered in the manner provided
in the Indenture and sold pursuant to Delayed Delivery Contracts,
will constitute, valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as the
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, or by general equitable
principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law); the Offered
Securities other than any Offered Contract Securities conform, and
any Offered Contract Securities, when issued and delivered in the
manner provided for in the Indenture and sold pursuant to Delayed
Delivery Contracts, will conform, in all material respects to the
description thereof contained in the Prospectus;
(iii) The shares of capital stock of the Company outstanding on
the Closing Date have been duly authorized, are validly issued,
fully paid and non-assessable, and conform in all material respects
as to legal matters to the description thereof contained in the
Prospectus;
<PAGE>
(iv) The Common Shares have been duly authorized and reserved
for issuance by the Company upon conversion of the Offered
Securities, and when so issued and countersigned by the transfer
agent therefor, will be validly issued, fully paid and non-
assessable; and the issuance of such Common Shares will not be
subject to the pre-emptive rights of any stockholder of the Company;
(v) No consent, approval, authorization or order of, or filing
with, any New York State or Federal governmental agency or body or
any New York State or Federal court having jurisdiction over the
Company or any of its material properties is required to be obtained
or made by the Company for the consummation of the transactions
contemplated by the Terms Agreement (including the provisions of
this Agreement) and the Indenture, except such as have been
obtained and made under the Act and the Trust Indenture Act and such
as may be required under state securities or Blue Sky laws (as to
which such counsel need express no opinion);
(vi) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement),
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, the Restated
Certificate of Incorporation or By-Laws of the Company or any
statute, rule, regulation or order applicable to the Company or any
of its subsidiaries of which such counsel is aware of any federal or
New York State governmental agency or body or court having
jurisdiction over the Company or any of its material properties
(other than those that may be required under the Act and under
applicable state securities or Blue Sky laws as to which such
counsel need express no opinion) and the Company has full corporate
power and authority to authorize, issue and sell the Offered
Securities as contemplated by the Terms Agreement (including the
provisions of this Agreement);
(vii) The registration statement relating to the Debt Securities
and the Common Shares, as of its effective date, the Registration
Statement and the Prospectus, as of the date of the Terms Agreement,
and any amendment or supplement thereto, as of its date, appeared on
their face to comply as to form in all material respects with the
requirements of the Act, the Trust Indenture Act and the Rules and
Regulations thereunder; nothing has come to such counsel's attention
which causes it to believe that such registration statement, as of
its effective date, the Registration Statement or the Prospectus, as
of the date of the Terms Agreement, or any such amendment or
supplement, as of its date, contained any untrue statement of a
material fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein (in the
case of the Prospectus, in light of the circumstances under which
they were made) not misleading; it being understood that such
counsel need express no opinion as to the financial statements and
schedules or other financial or statistical data contained in any of
the above-mentioned documents;
(viii) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company; and
(ix) The Offered Securities conform in all material respects
to the description thereof contained in the Prospectus.
(e) The Representatives shall have received an opinion, dated the
Closing Date, from Graham M. Clark, Jr., Esq., Senior Vice President and
General Counsel of the Company, to the effect that:
<PAGE>
(i) The Company and Newmont Gold Company have been duly
incorporated and are existing corporations in good standing in their
state of incorporation and have been duly qualified to do business
and are in good standing as foreign corporations in all
jurisdictions in which their respective ownership of property or the
conduct of their respective businesses requires such qualification
(except where the failure to so qualify would not have a material
adverse effect upon the Company and its subsidiaries taken as a
whole), and have all power and authority necessary to own their
respective properties and conduct the businesses in which they are
engaged as described in the Prospectus;
(ii) The execution, delivery and performance of the Indenture,
the Terms Agreement (including the provisions of this Agreement) and
any Delayed Delivery Contracts and the issuance and sale of the
Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under any order, rule or
regulation applicable to the Company or any of its subsidiaries of
which such counsel is aware of any court or governmental agency or
body having jurisdiction over the Company or any of its material
properties or, any material agreement or instrument to which the
Company or any material subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject, or the
Restated Certificate of Incorporation or By-Laws of the Company or
any such subsidiary;
(iii) Such counsel is not aware of any consent, approval,
authorization or order of, or filing with, any governmental agency
or body or any court having jurisdiction over the Company or any of
its material properties that is required to be obtained or made by
the Company for the consummation of the transactions contemplated by
the Terms Agreement (including the provisions of this Agreement),
the Indenture and any Deposit Agreement, except such as may be
required under the Act, the Trust Indenture Act and under state
securities or Blue Sky laws (as to which such counsel need express
no opinion);
(iv) The documents incorporated by reference in the Prospectus
(other than the financial statements and related schedules and other
financial and statistical data contained therein, as to which such
counsel needs express no opinion), when they were filed with the
Commission complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder; and nothing has come to such counsel's
attention which causes it to believe that any of such documents,
when such documents were so filed contained an untrue statement of a
material fact and omitted to state a material fact necessary in
order to make the statements therein, in the light of the cir-
cumstances under which they were made when such documents were so
filed, not misleading;
(v) Nothing has come to such counsel's attention which causes
it to believe that the registration statement relating to the Debt
Securities and the Common Shares, as of its effective date, the
Registration Statement or the Prospectus, as of the date of the
Terms Agreement, or any such amendment or supplement, as of its
date, contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were
made) not misleading; it being understood that such counsel need
express no opinion as to the financial statements and schedules or
other financial or statistical data contained in any of the above-
mentioned documents; and
<PAGE>
(vi) The statements contained in the Company's Annual Reports
on Form 10-K under the heading "Item 3. Legal Proceedings", and the
statements contained in the Company's Quarterly Reports on Form 10-Q
under the heading "Item 1. Legal Proceedings", in each case, which
are incorporated or deemed to be incorporated by reference in the
Prospectus, insofar as such statements constitute a summary of the
legal documents, matters or proceedings referred to therein, fairly
present the information called for with respect to such legal
documents, matters and proceedings.
(f) The Representatives shall have received from Davis Polk &
Wardwell, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Registration Statement, the
Prospectus and other related matters as they may require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(g) The Representatives shall have received a certificate, dated
the Closing Date, of the Chairman of the Board of Directors, the Vice
Chairman of the Board of Directors, the President, any Senior Vice
President or any Vice President and a principal financial or accounting
officer of the Company in which such officers, to their knowledge, shall
state that the representations and warranties of the Company in this
Agreement are true and correct at and as of the Closing Date, that the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the
Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted by the Commission and
that, subsequent to the date of the most recent financial statements in
the Prospectus, there has been no material adverse change in the
financial position or results of operation of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by
the Prospectus or as described in such certificate.
The Company will furnish the Representatives with such conformed copies of
such opinions, certificates, letters and documents as they reasonably request.
6. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may become
subject, under the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
specifically for use therein; and provided, further, that the Company shall
not be liable to any Underwriter under the indemnity agreement in this subsec-
tion (a) with respect to any preliminary prospectus or preliminary prospectus
supplement to the extent that any such loss, claim, damage or liability of
such Underwriter results from the fact that such Underwriter sold designated
securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus as then amended or
supplemented in any case where such delivery is required by the Act if the
<PAGE>
Company has previously furnished copies thereof to such Underwriter and the
loss, claim, damage or liability results from an untrue statement or omission
of a material fact contained in the preliminary prospectus which was corrected
in the Prospectus (as then amended, supplemented or modified).
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus or preliminary
prospectus supplement, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by
such Underwriter specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement.
(d) If the indemnification provided for in this Section is
unavailable (other than as a result of the provisos contained in subsection
(a)) or insufficient to hold harmless an indemnified party under subsection
(a) or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations, including relative benefit. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The Company and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this subsection (d)
were determined by pro rata allocation (even if the Underwriters were treated
<PAGE>
as one entity for such purpose) or any other method of allocation which does
not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepre-
sentation (within the meaning of Section 11(f) of the Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations of
the Underwriters under this Section shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed the Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
7. Default of Underwriters. (a) If any Underwriter shall
default in its obligation to purchase the Offered Securities which it has
agreed to purchase under the Terms Agreement relating to such Offered
Securities, the Representatives may in their discretion arrange for themselves
or another party or other parties to purchase such Offered Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Offered Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Offered Securities on
such terms. In the event that, within the respective prescribed period, the
Representatives notify the Company that they have so arranged for the purchase
of such Offered Securities, or the Company notifies the Representatives that
it has so arranged for the purchase of such Offered Securities, the
Representatives or the Company shall have the right to postpone the Closing
Date for such Offered Securities for a period of not more than seven days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus
which in the reasonable opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall include any
person substituted under this section with like effect as if such person had
originally been a party to the Terms Agreement with respect to such Offered
Securities.
(b) If, after giving effect to any arrangements for the purchase of
the Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Offered Securities which remains
unpurchased does not exceed one-tenth of the aggregate principal amount of the
Offered Securities, then the Company shall have the right to require each non-
defaulting Underwriter to purchase the principal amount of Offered Securities
which such Underwriter agreed to purchase under the Terms Agreement relating
to such Offered Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
<PAGE>
Securities which such Underwriter agreed to purchase under such Terms
Agreement) of the Offered Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the Offered Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Offered Securities which remains unpurchased
exceeds one-tenth of the aggregate principal amount of the Offered Securities,
as referred to in subsection (b) above, or if the Company shall not exercise
the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Offered Securities of a defaulting Underwriter or
Underwriters, then the Terms Agreement relating to such Offered Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 4(g) and the indemnity and
contribution agreements in Section 6; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
8. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of any Underwriter, the Company or any of their
respective representatives, officers or directors or any controlling person
and will survive delivery of and payment for the Offered Securities. If the
Terms Agreement is terminated pursuant to Section 7 or if for any reason the
purchase of the Offered Securities by the Underwriters under the Terms
Agreement is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4(g) and the
respective obligations of the Company and the Underwriters pursuant to Section
6 shall remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason, other than solely because of
the termination of this Agreement pursuant to Section 7 or the occurrence of
any event specified in clause (ii), (iv) or (v) of Section 5(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with
the offering of the Offered Securities, but the Company shall be under no
further liability to any Underwriter except as provided in Section 6.
9. Notices. All statements, requests, notices and agreements
hereunder shall be in writing and if to the Underwriters shall be sufficient
in all respects, if delivered or sent by first class mail, telex, or facsimile
transmission (confirmed in writing by overnight courier sent on the day of
such facsimile transmission) to the address of the Representatives as set
forth in the Terms Agreement; and if to the Company shall be sufficient in all
respects if delivered or sent by first class mail, telex, or facsimile trans-
mission (confirmed in writing by overnight courier sent on the day of such
facsimile transmission) to the address of the Company set forth in the
Registration Statement, Attention: Secretary.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in Terms
Agreements and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have
any right or obligation hereunder.
11. Time of Essence. Time shall be of the essence of each Terms
Agreement. As used herein the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
12. GOVERNING LAW. THIS AGREEMENT AND EACH TERMS AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
<PAGE>
13. Counterparts. This Agreement and each Terms Agreement may be
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return three counterparts hereof.
Very truly yours,
NEWMONT MINING CORPORATION
By
Name:
Title:
Accepted as of the date hereof:
[Names of Underwriters]
By: [Representatives]
By:
Name:
Title:
On behalf of each of the Underwriters
ANNEX I
NEWMONT MINING CORPORATION
Convertible Debt Securities
Terms Agreement
, 19
[Names and Addresses of
Representatives]
Dear Sirs:
Newmont Mining Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated , 19 (the "Underwriting
Agreement"), between the Company on the one hand and , on
the other hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the securities specified in Schedule II hereto
(the "Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that, if this Terms Agreement and the Underwriting Agreement
are dated different dates, each representation and warranty with respect to
the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to
be a representation and warranty as of the date of the Underwriting Agreement
in relation to the Prospectus (as therein defined) and also a representation
and warranty as of the date of this Terms Agreement in relation to the
Prospectus as amended or supplemented relating to the Securities which are the
<PAGE>
subject of the Terms Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by
reference shall be deemed to refer to you. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein
defined. The Representatives designated to act on behalf of each of the
Underwriters of Securities are set forth in Schedule II hereto.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Securities set forth opposite the name of such
Underwriter in Schedule I hereto, less the principal amount of Securities
covered by Delayed Delivery Contracts, if any, as may be specified in such
Schedule II.
If the foregoing is in accordance with your understanding, please
sign and return to us counterparts hereof, and upon acceptance hereof
by you, on behalf of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be supplied to the Company upon request.
Very truly yours,
NEWMONT MINING CORPORATION
By
Name:
Title:
Accepted as of the date hereof:
By:
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
Total......................... $
SCHEDULE II
<PAGE>
Title of Securities:
[ %] [Floating Rate] [Zero Coupon] Convertible [Subordinated]
[Notes] [Debentures] due
Aggregate principal amount:
$
Price to Public:
% of the principal amount of the Securities, plus accrued
interest [, if any,] from to [and accrued
amortization, if any, from to ]
Purchase Price by Underwriters:
% of the principal amount of the Securities, plus accrued
interest [,if any,] from to [and accrued
amortization, if any, from to ]
Specified funds for payment of purchase price:
[New York] Clearing House funds
Indenture:
Indenture, dated as of , 1994, [, as supplemented by
,] between the Company and The Bank of New York, as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate
Provisions]
Interest Payment Dates:
[months and dates]
Conversion Rights:
The Securities will be [subject to mandatory conversion]
[convertible [at the option of the holder thereof] [at the option of
the Company]] into shares of Common Stock of the Company. [Describe
conversion provisions.]
Ranking:
[The Securities will be unsecured, unsubordinated indebtedness of
the Company and will rank on a parity with all other unsecured and
unsubordinated indebtedness of the Company]
[The Securities will be unsecured indebtedness of the Company and
will be subordinated in right of payment to all Senior Indebtedness
of the Company. Senior Indebtedness is defined as
.]
Redemption Provisions:
[No provisions for redemption]
[The Securities may be redeemed, otherwise than through the sinking
fund, in whole or in part at the option of the Company, in the
amount of $ or an integral multiple thereof, ]
[on or after , at the following redemption prices
(expressed in percentages of principal amount): If [redeemed on or
before , %, and if] redeemed during the 12-month period
beginning ,
Year Redemption
<PAGE>
Price
and thereafter at 100% of principal amount, together in each case
with accrued interest to the redemption date]
[on any interest payment date falling on or after ,
, at the election of the Company, at a redemption price
equal to the principal amount thereof, plus accrued interest to the
date of redemption].
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax
law]
[Restriction on refunding]
Sinking Fund Provisions:
[No sinking fund provisions]
[The Securities are entitled to the benefit of a sinking fund to
retire $ principal amount of Securities on in each of
the years through at 100% of their principal amount plus
accrued interest] [, together with [cumulative] [non-cumulative]
redemptions at the option of the Company to retire an additional $
principal amount of Securities in the years through
at 100% of their principal amount plus accrued interest.]
[If Securities are extendable debt Securities, insert --
Extendable provisions:
Securities are repayable on , [insert date and
years], at the option of the holder, at their principal amount with
accrued interest. Initial annual interest rate will be %, and
thereafter annual interest rate will be adjusted on , and
to a rate not less than % of the effective annual
interest rate on U.S. Treasury obligations with -year
maturities as of the [insert date 15 days prior to maturity date]
prior to such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert --
Floating rate provisions:
Initial annual interest rate will be % through
[and thereafter will be adjusted [monthly] [on each , ,
and ] [to an annual rate of % above the average
rate for -year [month] [securities] [certificates of deposit]
issued by and [insert names of
banks].] [and the annual interest rate [thereafter] [from
through ] will be the interest yield
equivalent of the weekly average per annum market discount rate for
-month Treasury bills plus % of Interest Differential (the
excess, if any, of (i) then current weekly average per annum
secondary market yield for -month certificates of deposit over
(ii) then current interest yield equivalent of the weekly average
per annum market discount rate for -month Treasury bills);
[from and thereafter the rate will be the then current
interest yield equivalent plus % of Interest Differential].]
Closing Date:
[Time and date], 19
Closing Location:
<PAGE>
Delayed Delivery:
[None] [Underwriters' commission shall be % of the principal amount
of Securities for which Delayed Delivery Contracts have been entered
into. Such commission shall be payable to the order of
.]
Black Out Period:
[None]
[For a period beginning at the time of execution of the Terms Agreement
and ending [ ] days thereafter, the Company will not, directly or
indirectly, offer, sell, contract to sell or otherwise dispose of Common
Shares or securities representing, convertible into or exchangeable for,
or any rights to purchase or acquire, Common Shares, other than (i)
pursuant to its employee stock option and restricted stock plans or its
directors' stock plan, each as in effect at the time of execution of the
Terms Agreement, (ii) pursuant to arrangements made with respect to any
person who becomes an employee of the Company, (iii) upon exercise of the
Company's outstanding $5.50 Convertible Preferred Stock, par value $5.00
per share, or (iv) pursuant to the Junior Preferred Rights.]
[Insert terms, if other than as above.]
Names and addresses of Representatives:
Address for Notices, etc.:
[Other Terms](1)
(1) A description of particular tax, accounting or other unusual features of
the Securities should be set forth, or referenced to an attached and
accompanying description, if necessary to the issuer's understanding of the
transaction contemplated. Such a description might appropriately be in the
form in which such features will be described in the Prospectus for the
offering.
ANNEX II
(Three copies of this Delayed Delivery Contract
should be signed and returned to the address
shown below so as to arrive not later than
9:00 A.M., New York time, on
, 19 *.)
DELAYED DELIVERY CONTRACT
[Insert date of initial
public offering]
NEWMONT MINING CORPORATION
c/o [Name and Address of Representative]
Gentlemen:
The undersigned hereby agrees to purchase from Newmont Mining
Corporation, a Delaware corporation (the "Company"), and the Company agrees to
<PAGE>
sell to the undersigned, [If one delayed closing, insert--as of the date
hereof, for delivery on , 19 ("Delivery Date"),]
$
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated , 19 and a Prospectus
Supplement dated , 19 relating thereto, receipt of copies of which
is hereby acknowledged, at % of the principal amount thereof plus accrued
interest, if any, and on the further terms and conditions set forth in this
Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
* Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
[The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Delivery Date Principal Amount
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on [the] [each] Delivery Date shall be made to the
Company or its order by certified or official bank check in [New York]
Clearing House (next day) funds at the office of at
.M. on [the] [such] Delivery Date upon delivery to the undersigned of the
Securities to be purchased by the undersigned [for delivery on such Delivery
Date] in definitive fully registered form and in such denominations and
registered in such names as the undersigned may designate by written or
telegraphic communication addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the] [each] Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at [the] [such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by [a copy] [copies] of the opinion[s] of
counsel for the Company delivered to the Underwriters in connection therewith.
<PAGE>
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on
a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below
and mail or deliver one of the counterparts hereof to the undersigned at its
address set forth below. This will become a binding contract between the
Company and the undersigned when such counterpart is so mailed or delivered.
Yours very truly,
(Name of Purchaser)
By
(Title of Signatory)
(Address of Purchaser)
Accepted, as of the above date.
NEWMONT MINING CORPORATION
BY
[Insert Title]
NEWMONT MINING CORPORATION
AND
THE BANK OF NEW YORK,
AS TRUSTEE
CONVERTIBLE SENIOR DEBT INDENTURE
Dated as of
Reference is made to the following provisions of the Trust Indenture
Act of 1939, as amended, which establish certain duties and responsibilities
of the Issuer and the Trustee which are not set forth in this Indenture:
<TABLE>
<PAGE>
<S> <C> <C> <C>
Section Subject Section Subject
310(b) Disqualification of Trustee for 315(c) Duties of claims Trustee in case of
conflicting Securityholders default
311 Preferential collection of 315(d) Provisions relating to
Trustee as creditor of Issuer responsibility of Trustee
312(a) Periodic filing of information by 315(e) Assessment of costs against
Issuer with Trustee litigating Securityholders in
certain circumstances
312(b) Access of Securityholders to 316(a) Directions to and waivers by
information Securityholders in certain
circumstances
313(b) Additional reports of Trustee to 316(b) Prohibition or impairment of right
Securityholders of Securityholders to payment
314(c) Evidence of compliance with 316(c) Right of Issuer to set record date
conditions precedent for certain purposes
315(a) Duties of Trustee prior to default 317(a) Special powers of Trustee
315(b) Notice of default from Trustee to 318(a) Provisions of Act to control in
Securityholders case of conflict
</TABLE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . 1
"Attributable Debt" . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . 2
"Business Day" . . . . . . . . . . . . . . . . . . . 2
"Closing Price" . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . 3
"Common Stock" . . . . . . . . . . . . . . . . . . . 3
"Consolidated Net Tangible Assets" . . . . . . . . . 3
"Conversion Agent" . . . . . . . . . . . . . . . . . 4
"Conversion Price" . . . . . . . . . . . . . . . . . 4
"Corporate Trust Office" . . . . . . . . . . . . . . 4
"covenant defeasance" and "defeasance" . . . . . . . 4
"Current Market Price" . . . . . . . . . . . . . . . 4
"Depositary" . . . . . . . . . . . . . . . . . . . . 4
"Depositary Shares" . . . . . . . . . . . . . . . . . 4
"Dollar" . . . . . . . . . . . . . . . . . . . . . . 5
"Event of Default" . . . . . . . . . . . . . . . . . 5
"Funded Debt" . . . . . . . . . . . . . . . . . . . . 5
"Global Security" . . . . . . . . . . . . . . . . . . 5
"Holder" . . . . . . . . . . . . . . . . . . . . . . 5
"Indenture" . . . . . . . . . . . . . . . . . . . . . 5
"Interest" . . . . . . . . . . . . . . . . . . . . . 5
"Issuer" . . . . . . . . . . . . . . . . . . . . . . 5
"Market Exchange Rate" . . . . . . . . . . . . . . . 5
"New York Location" . . . . . . . . . . . . . . . . . 6
<PAGE>
"Officers' Certificate" . . . . . . . . . . . . . . . 6
"Opinion of Counsel" . . . . . . . . . . . . . . . . 6
"original issue date" . . . . . . . . . . . . . . . . 6
"Original Issue Discount Security" . . . . . . . . . 6
"Outstanding" . . . . . . . . . . . . . . . . . . . . 6
"Overdue Rate" . . . . . . . . . . . . . . . . . . . 7
"Person" . . . . . . . . . . . . . . . . . . . . . . 7
"Preferred Stock" . . . . . . . . . . . . . . . . . . 7
"Preferred Stock Depositary" . . . . . . . . . . . . 7
"Principal" . . . . . . . . . . . . . . . . . . . . . 8
"Principal Property" . . . . . . . . . . . . . . . . 8
"Register" . . . . . . . . . . . . . . . . . . . . . 8
"Resolution" . . . . . . . . . . . . . . . . . . . . 8
"Responsible Officer" . . . . . . . . . . . . . . . . 8
"Restricted Subsidiary" . . . . . . . . . . . . . . . 8
"Security" or "Securities" . . . . . . . . . . . . . 9
"Security registrar" . . . . . . . . . . . . . . . . 9
"series" . . . . . . . . . . . . . . . . . . . . . . 9
"Subsidiary" . . . . . . . . . . . . . . . . . . . . 9
"Trading Day" . . . . . . . . . . . . . . . . . . . . 9
"tranche" . . . . . . . . . . . . . . . . . . . . . . 10
"Trustee" . . . . . . . . . . . . . . . . . . . . . . 10
"Trust Indenture Act of 1939" . . . . . . . . . . . . 10
"U.S. Government Obligations" . . . . . . . . . . . . 10
"vice president" . . . . . . . . . . . . . . . . . . 10
"Yield to Maturity" . . . . . . . . . . . . . . . . . 10
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . 10
SECTION 2.2 Form of Face of Security . . . . . . . . . . . . . . 11
SECTION 2.3 Forms of Reverse of Security,
Trustee's Certificate of
Authentication and Election
to Convert . . . . . . . . . . . . . . . . . . . . 14
SECTION 2.4 Amount Unlimited; Issuable in Series. . . . . . . . . 21
SECTION 2.5 Authentication and Delivery of
Securities . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.6 Execution of Securities . . . . . . . . . . . . . . . 26
SECTION 2.7 Certificate of Authentication . . . . . . . . . . . . 27
SECTION 2.8 Denomination and Date of Securities;
Payments of Interest . . . . . . . . . . . . . . . 27
SECTION 2.9 Registration, Transfer and Exchange . . . . . . . . . 28
SECTION 2.10 Mutilated, Defaced, Destroyed, Lost
and Stolen Securities . . . . . . . . . . . . . . . 32
SECTION 2.11 Cancellation of Securities Paid, etc. . . . . . . . . 33
SECTION 2.12 Temporary Securities . . . . . . . . . . . . . . . . 33
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. . . . . . . . . . 34
SECTION 3.2 Offices for Payments, etc. . . . . . . . . . . . . . 35
SECTION 3.3 Paying Agents . . . . . . . . . . . . . . . . . . . . 35
SECTION 3.4 Limitation on Liens . . . . . . . . . . . . . . . . . 37
SECTION 3.5 Limitation on Sales and Leasebacks . . . . . . . . . 39
SECTION 3.6 Notice of Default . . . . . . . . . . . . . . . . . . 40
SECTION 3.7 Calculation of Original Issue Discount . . . . . . . 41
SECTION 3.8 Reports . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 3.9 Compliance Certificates . . . . . . . . . . . . . . . 41
<PAGE>
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Events of Default . . . . . . . . . . . . . . . . . . 42
SECTION 4.2 Payment of Securities on Default;
Suit Therefor . . . . . . . . . . . . . . . . . . . 45
SECTION 4.3 Application of Moneys Collected
by Trustee . . . . . . . . . . . . . . . . . . . . 48
SECTION 4.4 Proceedings by Trustee . . . . . . . . . . . . . . . 49
SECTION 4.5 Restoration of Rights on Abandonment
of Proceedings . . . . . . . . . . . . . . . . . . 49
SECTION 4.6 Proceedings by Securityholders . . . . . . . . . . . 49
SECTION 4.7 Remedies Cumulative and Continuing . . . . . . . . . 50
SECTION 4.8 Control by Securityholders . . . . . . . . . . . . . 51
SECTION 4.9 Waiver of Past Defaults . . . . . . . . . . . . . . . 51
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Reliance on Documents, Opinions,
etc.; No Requirement for
Expenditure of Own Funds . . . . . . . . . . . . . 52
SECTION 5.2 No Responsibility for Recitals, etc. . . . . . . . . 54
SECTION 5.3 Trustee and Agents May Hold Securities. . . . . . . . 54
SECTION 5.4 Moneys to Be Held in Trust. . . . . . . . . . . . . . 54
SECTION 5.5 Compensation and Expenses of Trustee. . . . . . . . . 55
SECTION 5.6 Right of Trustee to Rely on
Officers' Certificate, etc. . . . . . . . . . . . . 56
SECTION 5.7 Eligibility of Trustee. . . . . . . . . . . . . . . . 56
SECTION 5.8 Resignation or Removal of
Trustee; Appointment of
Successor Trustee. . . . . . . . . . . . . . . . . 56
SECTION 5.9 Acceptance of Appointment by
Successor Trustee. . . . . . . . . . . . . . . . . 58
SECTION 5.10 Merger, Conversion, Consolidation
or Succession to Business of
Trustee. . . . . . . . . . . . . . . . . . . . . . 59
SECTION 5.11 Reports by Trustee to Security-holders . . . . . . . 60
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Action by Securityholders. . . . . . . . . . . . . . 60
SECTION 6.2 Proof of Execution by Security-holders. . . . . . . . 62
SECTION 6.3 Holders to Be Treated as Owners. . . . . . . . . . . 63
SECTION 6.4 Securities Owned by Issuer Deemed
Not Outstanding. . . . . . . . . . . . . . . . . . 63
SECTION 6.5 Right of Revocation of Action Taken. . . . . . . . . 64
SECTION 6.6 Securityholders' Meetings; Purposes. . . . . . . . . 64
SECTION 6.7 Call of Meetings by Trustee. . . . . . . . . . . . . 65
SECTION 6.8 Call of Meetings by Issuer or
Securityholders. . . . . . . . . . . . . . . . . . 65
SECTION 6.9 Qualifications for Voting. . . . . . . . . . . . . . 66
SECTION 6.10 Quorum; Adjourned Meetings. . . . . . . . . . . . . . 66
SECTION 6.11 Regulations. . . . . . . . . . . . . . . . . . . . . 67
SECTION 6.12 Voting. . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 6.13 No Delay of Rights by Meeting. . . . . . . . . . . . 68
SECTION 6.14 Written Consent in Lieu of Meeting . . . . . . . . . 69
<PAGE>
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without
Consent of Securityholders. . . . . . . . . . . . . 69
SECTION 7.2 Supplemental Indentures With Consent
of Securityholders. . . . . . . . . . . . . . . . . 71
SECTION 7.3 Effect of Supplemental Indenture. . . . . . . . . . . 73
SECTION 7.4 Certain Documents to Be Given to
Trustee. . . . . . . . . . . . . . . . . . . . . . 73
SECTION 7.5 Notation on Securities. . . . . . . . . . . . . . . . 73
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 8.1 Issuer May Consolidate, etc., on
Certain Terms. . . . . . . . . . . . . . . . . . . 74
SECTION 8.2 Successor Corporation to Be
Substituted. . . . . . . . . . . . . . . . . . . . 74
SECTION 8.3 Opinion of Counsel and Officers'
Certificate to Be Given to Trustee. . . . . . . . . 75
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of
Indenture. . . . . . . . . . . . . . . . . . . . . 75
SECTION 9.2 Application by Trustee of Funds
Deposited for Payment of Securities. . . . . . . . 77
SECTION 9.3 Repayment of Moneys Held by
Paying Agent. . . . . . . . . . . . . . . . . . . . 77
SECTION 9.4 Return of Moneys Held by Trustee
and Paying Agent Unclaimed for
Two Years. . . . . . . . . . . . . . . . . . . . . 77
SECTION 9.5 Issuer's Option to Effect Defeasance
or Covenant Defeasance. . . . . . . . . . . . . . . 77
SECTION 9.6 Defeasance and Discharge. . . . . . . . . . . . . . . 77
SECTION 9.7 Covenant Defeasance. . . . . . . . . . . . . . . . . 78
SECTION 9.8 Conditions to Defeasance or
Covenant Defeasance. . . . . . . . . . . . . . . . 79
SECTION 9.9 Deposited Money and U.S. Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions. . . . . . . . . . . 81
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 10.1 Applicability of Article. . . . . . . . . . . . . . . 82
SECTION 10.2 Notice of Redemption; Selection
of Securities. . . . . . . . . . . . . . . . . . . 82
SECTION 10.3 Payment of Securities Called
for Redemption. . . . . . . . . . . . . . . . . . . 84
SECTION 10.4 Conversion Arrangement on Call
for Redemption . . . . . . . . . . . . . . . . . . 85
SECTION 10.5 Exclusion of Certain Securities
from Eligibility for Selection
for Redemption. . . . . . . . . . . . . . . . . . . 86
SECTION 10.6 Mandatory and Optional Sinking Funds. . . . . . . . . 86
<PAGE>
ARTICLE ELEVEN
CONVERSION OF SECURITIES
SECTION 11.1 Conversion of Securities. . . . . . . . . . . . . . . 90
SECTION 11.2 Issuance of Shares of Stock on
Conversion. . . . . . . . . . . . . . . . . . . . . 91
SECTION 11.3 No Adjustment for Interest or Dividends . . . . . . . 93
SECTION 11.4 Adjustment of Conversion Price. . . . . . . . . . . . 93
SECTION 11.5 No Fractional Shares To Be Issued. . . . . . . . . . 98
SECTION 11.6 Preservation of Conversion Rights
upon Consolidation, Merger, Sale
or Conveyance . . . . . . . . . . . . . . . . . . . 99
SECTION 11.7 Notice to Holders of Securities Prior
to Taking Certain Types of Action. . . . . . . . . 99
SECTION 11.8 Covenant to Reserve Shares for
Issuance on Conversion of
Securities. . . . . . . . . . . . . . . . . . . . . 100
SECTION 11.9 Compliance with Governmental
Requirements. . . . . . . . . . . . . . . . . . . . 101
SECTION 11.10 Payment of Taxes upon Certificates
for Shares Issued upon Conversion. . . . . . . . . 101
SECTION 11.11 Trustee's Duties with Respect
to Conversion Provisions. . . . . . . . . . . . . . 102
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
SECTION 12.1 Incorporators, Stockholders, Officers
and Directors of Issuer Exempt
from Individual Liability. . . . . . . . . . . . . 102
SECTION 12.2 Provisions of Indenture for the
Sole Benefit of Parties and
Securityholders. . . . . . . . . . . . . . . . . . 103
SECTION 12.3 Successors and Assigns of Issuer
Bound by Indenture. . . . . . . . . . . . . . . . . 103
SECTION 12.4 Notices and Demands on Issuer,
Trustee and Securityholders. . . . . . . . . . . . 103
SECTION 12.5 Officers' Certificates and Opinions
of Counsel; Statements to Be
Contained Therein. . . . . . . . . . . . . . . . . 104
SECTION 12.6 Official Acts by Successor Entity. . . . . . . . . . 105
SECTION 12.7 Payments Due on Saturdays, Sundays
and Legal Holidays. . . . . . . . . . . . . . . . . 105
SECTION 12.8 NEW YORK LAW TO GOVERN. . . . . . . . . . . . . . . . 106
SECTION 12.9 Counterparts. . . . . . . . . . . . . . . . . . . . . 106
SECTION 12.10 Effect of Headings. . . . . . . . . . . . . . . . . . 106
SECTION 12.11 Conflict with Trust Indenture Act. . . . . . . . . . 106
THIS CONVERTIBLE SENIOR DEBT INDENTURE, dated as of between
NEWMONT MINING CORPORATION, a Delaware corporation (the "Issuer"), and THE
BANK OF NEW YORK, a New York banking corporation (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issuance from time to
time of its unsecured bonds, debentures, notes and other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts and denominated in United States dollars or
<PAGE>
foreign currency or units or composites of two or more thereof as may from
time to time be authorized in accordance with the terms of this Indenture,
which Securities shall be convertible, pursuant to Article Eleven hereof, into
shares of Common Stock of the Issuer, shares of a series of Preferred Stock of
the Issuer or Depositary Shares representing fractions of such shares of a
series of Preferred Stock, and to provide, among other things, for the
authentication, delivery and administration thereof, the Issuer has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture, when executed
and delivered by the parties hereto, a valid indenture and agreement according
to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective Holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
herein otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All
other terms used in this Indenture that are defined in the Trust Indenture Act
of 1939, as amended to the date of this Indenture as originally executed, or
the definitions of which in the Securities Act of 1933, as amended to the date
of this Indenture as originally executed, are referred to in the Trust
Indenture Act of 1939 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force
at the date of this Indenture. 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. The terms defined in
this Article have the meanings assigned to them in this Article and include
the plural as well as the singular.
"Attributable Debt" means, as to any particular lease under which
the Issuer is at the time liable, at any date as of which the amount thereof
is to be determined, the total net amount of rent required to be paid by the
Issuer under such lease during the remaining term thereof, discounted from the
respective due dates thereof to such date at the rate of interest per annum
implicit in the terms of such lease (as determined by any two of the
following: the chairman, the vice chairman, the president, any vice
president, the treasurer, the controller or the secretary of the Issuer)
compounded semi-annually. The net amount of rent required to be paid under
any such lease for any such period shall be the amount of the rent payable by
the lessee with respect to such period, after excluding amounts required to be
paid on account of maintenance and repairs, insurance, taxes, assessments,
water rates and similar charges. In the case of any lease which is terminable
by the lessee upon the payment of a penalty, such net amount shall also
include the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which
it may be so terminated.
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board of Directors duly authorized to act
hereunder.
<PAGE>
"Business Day" means, except as otherwise provided pursuant to
Section 2.4 for Securities of any series, any day that is not a Saturday or
Sunday and that is not a day on which banking institutions are generally
authorized or obligated by law to close in The City of New York.
"Closing Price" with respect to any securities on any day means the
closing sale price regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and asked prices,
regular way, in each case on the New York Stock Exchange, or, if such security
is not listed or admitted to trading on such Exchange, on the principal
national securities exchange or quotation system on which such security is
quoted or listed or admitted to trading, or, if not quoted or listed or
admitted to trading on any national securities exchange or quotation system,
the average of the closing bid and asked prices of such security on the over-
the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similarly generally accepted reporting
service, or if not so available, in such manner as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of
Directors for that purpose or a price determined in good faith by the Board of
Directors.
"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 and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"Common Stock" means the common stock, par value $1.60 per share, of
the Issuer, as designated on the date hereof, and all shares hereafter
authorized of any class or classes of common stock of the Issuer.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any thereof which
are by their terms extendible or renewable at the option of the obligor
thereon to a time more than 12 months after the time as of which the amount
thereof is being computed and excluding current maturities of long-term
indebtedness and capital lease obligations) and (b) all goodwill, all as
shown in the most recent consolidated balance sheet of the Issuer and its
Subsidiaries computed in accordance with generally accepted accounting
principles.
"Conversion Agent" has the meaning specified in Section 3.2.
"Conversion Price" means the price at which the Securities shall be
convertible into Common Stock, Preferred Stock or Depositary Shares, as the
case may be, such price to be established pursuant to Section 2.4, subject to
adjustment, in the case of Securities convertible into Common Stock, as
provided in Section 11.4 and, in the case of Securities convertible into
Preferred Stock or Depositary Shares, as established pursuant to Section 11.4.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 101 Barclay Street, 21W, New York, New York
10286.
"covenant defeasance" and "defeasance" have the meanings assigned to
such terms, respectively, by Sections 9.7 and 9.6.
"Current Market Price" on any date means the average of the daily
Closing Prices per share of Common Stock for any 30 consecutive Trading Days
selected by the Issuer commencing not more than 45 Business Days before such
date.
<PAGE>
"Depositary" means, with respect to the Securities of any series or
tranche issuable or issued in the form of one or more Global Securities, the
Person designated as Depositary for such Global Securities by the Issuer
pursuant to Section 2.4 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary for
such Global Securities, and if at any time there is more than one Person
designated as Depositary for Global Securities of a particular series or
tranche, "Depositary", as used with respect to the Securities of such series
or tranche, means the Depositary with respect to the particular Global
Security or Securities.
"Depositary Shares" means depositary shares, evidencing a fraction
of a share of Preferred Stock, issued pursuant to a Deposit Agreement entered
into between the Issuer and the Preferred Stock Depositary.
"Dollar" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" means any event or condition specified as such in
Section 4.1.
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the amount thereof
is to be determined or having a maturity of less than 12 months but by its
terms being renewable or extendable beyond 12 months from such date at the
option of the borrower.
"Global Security" means a Security evidencing all or a part of a
series or tranche of Securities, issued to the Depositary for such series or
tranche, as the case may be, in accordance with Section 2.5 and bearing the
legend prescribed in Section 2.5.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms means a Person in whose name a Security is registered in the Register.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended
and/or supplemented from time to time, and shall include (i) for all purposes
of this instrument and any supplemental indenture, the provisions of the Trust
Indenture Act of 1939 that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively, and (ii) the
forms and terms of particular series of Securities established as contemplated
hereunder.
"Interest" means, when used with respect to a non-interest bearing
Security, interest payable after the principal thereof has become due and
payable whether at maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise.
"Issuer" means Newmont Mining Corporation, a Delaware corporation,
until any successor corporation shall have become such pursuant to Article
Eight and thereafter "Issuer" shall mean such successor except as otherwise
provided in Section 8.2.
"Market Exchange Rate" has the meaning set forth in Section 6.1.
"New York Location" means the location in the Borough of Manhattan,
The City of New York, at which at any particular time the Trustee receives and
redelivers securities, which location at the date of execution of this
Indenture is 101 Barclay Street, Lobby Level, Trust Services Window, New York,
New York 10286.
"Officers' Certificate" when used with respect to the Issuer, means
a certificate signed by the chairman of the Board of Directors, any vice
<PAGE>
chairman of the Board of Directors, the president or any vice president and by
the treasurer, controller, the secretary or any assistant secretary of the
Issuer and delivered to the Trustee. Each such certificate shall include the
statements required by the Trust Indenture Act of 1939 or as provided for in
Section 12.5, if and to the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall include the statements
required by the Trust Indenture Act of 1939 or as provided for in Section
12.5, if and to the extent required hereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly)
on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable
upon redemption or a declaration of acceleration of the maturity thereof
pursuant to Section 4.1.
"Outstanding" (except as otherwise required by the Trust Indenture
Act of 1939), when used with reference to Securities, shall, subject to the
provisions of Section 6.4, mean, as of any particular time, all Securities
theretofore authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, which have become due and for
the payment or redemption of which moneys in the necessary amount shall
have been theretofore deposited in trust with the Trustee or with any
paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such
Securities (if the Issuer shall act as its own paying agent); and
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.10, or which shall have been paid pursuant to Section
2.10.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount that shall be deemed to be Outstanding for such purposes in the case of
an Original Issue Discount Security or (unless as otherwise established
pursuant to Section 2.4) in the case of a Security which provides that an
amount other than the face amount thereof will or may be payable upon the
maturity thereof or a declaration of acceleration of the maturity thereof
shall be the amount of the principal thereof that would be due and payable as
of the date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 4.1.
"Overdue Rate" means, unless otherwise specified in the Securities
of any series, the same rate as the rate of interest specified in the
Securities of such series or, in the case of a series of Original Issue
Discount Securities, the Yield to Maturity of such series of Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Preferred Stock" means preferred stock, par value $5.00 per share,
of the Issuer issuable in series pursuant to the Restated Certificate of
<PAGE>
Incorporation of the Issuer and Certificates of Designations relating to each
series of preferred stock so issued.
"Preferred Stock Depositary" means, with respect to a particular
series of Securities, the bank or trust company designated by the Issuer
pursuant to Section 2.4 to act as such with respect to shares of Preferred
Stock underlying the Depositary Shares issuable upon conversion of such
Securities.
"Principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Principal Property" means any mine, together with any fixtures
comprising a part thereof, and any plant or other facility, together with any
land upon which such plant or other facility is erected and fixtures
comprising a part thereof, used primarily for mining or processing, in each
case, located in the United States of America and the net book value of which
on the date as of which the determination is being made exceeds 5% of Con-
solidated Net Tangible Assets; provided, that Principal Property shall not
include (a) any mine, plant or facility which, in the opinion of the Board of
Directors of the Issuer, is not of material importance to the total business
conducted by the Issuer and its Subsidiaries as an entirety or (b) any portion
of a particular mine, plant or facility which, in the opinion of the Issuer is
not of material importance to the use or operation of such mine, plant or
facility.
"Register" has the meaning set forth in Section 2.9.
"Resolution" means a resolution of the Board of Directors, including
without limitation any such resolution by which or pursuant to which any
series of Securities is authorized and established pursuant to Section 2.4.
"Responsible Officer", when used with respect to the Trustee, means
the chairman of the board of directors, any vice chairman of the board of
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president, the cashier, the secretary, the treasurer, any senior trust
officer, trust officer, any assistant trust officer, any assistant vice
president, any assistant cashier, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary (a) substantially all
of the property of which is located, or substantially all of the business of
which is carried on, within the United States of America and (b) which owns a
Principal Property; provided, that Restricted Subsidiary shall not include any
Subsidiary the primary business of which consists of financing operations in
connection with leasing and conditional sales transactions on behalf of the
Issuer and its Subsidiaries, and/or purchasing accounts receivable and/or
making loans secured by accounts receivable or inventory, or which is
otherwise primarily engaged in the business of a finance company.
"Security" or "Securities" (except as otherwise required by the
Trust Indenture Act of 1939) has the meaning stated in the first recital of
this Indenture or means any Securities that have been issued, authenticated
and delivered under this Indenture, as the context may require.
"Security registrar" has the meaning set forth in Section 2.9.
"series", as used in the definitions of "Indenture" and "Overdue
Rate" in this Section 1.1 and as used in Section 2.4 (except as used in the
first sentence of the second paragraph thereof and in the first and last
<PAGE>
sentences of the third paragraph thereof), 2.8, 2.9, 2.10, 2.12, 3.1, 3.2, 3.3
(except as used in the fourth paragraph thereof), 10.1, 10.2, 10.3 and 10.6,
means "tranche" for any Securities of a series of Securities consisting of
more than one tranche.
"Subsidiary" means any corporation of which at least a majority of
the outstanding stock having by the terms thereof ordinary voting power for
the election of directors of such corporation (irrespective of whether or not
at the time stock of any other class or classes of such corporation shall have
or might have voting power by reason of the happening of any contingency) is
at the time directly or indirectly owned by the Issuer, or by one or more
other Subsidiaries, or by the Issuer and one or more other Subsidiaries.
"Trading Day" means (x) if the applicable security is listed or
admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which such exchange is open for business or (y)
if the applicable security is quoted on the National Market System of the
NASDAQ, a day on which trade may be made on such National Market System or (z)
if the applicable security is not otherwise listed, admitted for trading or
quoted, any day other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close.
"tranche" means all Securities of the same series having the same
Original issue date, interest rate, maturity, repayment and redemption
provisions.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee. If pursuant to the provisions of this
Indenture there shall be at any time more than one Trustee hereunder, the term
"Trustee" as used with respect to Securities of any series shall mean the
Trustee or Trustees with respect to the Securities of that series.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended, as in
force at the date as of which this Indenture was originally executed;
provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act of 1939" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning set forth in Section
9.8.
"vice president", when used with respect to the Issuer 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 of "vice president".
"Yield to Maturity" means, in the case of any Original Issue
Discount Security, the yield to maturity specified in such Security or in a
Resolution relating thereto.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall
be substantially in the form set forth in this Article, or in such other form
as shall be established by or pursuant to a 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 imprinted or otherwise reproduced thereon such
letters, numbers or other marks of identification and such legends or
endorsements as may be required to comply with any applicable law, rule or
regulation or with the rules of any securities exchange or as may, consistent
<PAGE>
with the provisions of this Indenture, be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 2.2 Form of Face of Security. [If the Security is an
Original Issue Discount Security, insert any legend required by the Internal
Revenue Code of 1986, as amended and the regulations thereunder.]
No.
$ CUSIP No.
NEWMONT MINING CORPORATION
[Insert Designation of Series]
Newmont Mining Corporation, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Issuer"),
for value received, hereby promises to pay to , or registered assigns,
the principal sum of on [if the Security
is to bear interest prior to maturity, insert--, and to pay interest thereon
[[insert as applicable--annually or semi-annually or quarterly]] on [[insert
appropriate interest payment dates]] (the "Interest Payment Dates") in each
year, commencing , [insert--at the rate of % per annum or, if
applicable, insert the method for determining the adjustable, floating or
other form of variable interest rate borne by the Securities] until the
principal hereof is paid or made available for payment [if applicable, insert
- --, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of % per annum on any overdue principal and
premium, if any, and on any overdue installment of interest]. Notwithstanding
the foregoing, this Security shall bear interest from the most recent Interest
Payment Date to which interest in respect hereof has been paid or duly
provided for, unless (i) the date hereof is such an Interest Payment Date, in
which case from the date hereof, or (ii) no interest has been paid on this
Security, in which case from ; provided, however, that if the
Issuer shall default in the payment of interest due on the date hereof, then
this Security shall bear interest from the next preceding Interest Payment
Date to which Interest has been paid or, if no interest has been paid on this
Security from . Notwithstanding the foregoing, if the date hereof
is after the or (whether or not a Business Day) (the
"Record Date"), as the case may be, next preceding an Interest Payment Date
and before such Interest Payment Date, this Security shall bear interest from
such Interest Payment Date; provided, however, that if the Issuer shall
default in the payment of interest due on such Interest Payment Date, then
this Security shall bear interest from the next preceding Interest Payment
Date to which interest has been paid or, if no interest has been paid on this
Security, from . The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be
paid to the Person in whose name this Security is registered at the close of
business on the Record Date next preceding such Interest Payment Date. Unless
otherwise specified for the Security pursuant to Section 2.4, insert -
[Interest on this Security will be computed and paid on the basis of a 360-day
year of twelve 30-day months.]
[If the Security is not to bear interest prior to maturity, insert--
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at
maturity and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
<PAGE>
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of % per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of and [if applicable, insert--any such]
interest on this Security will be made at the office or agency of the Issuer
maintained for that purpose in [insert the places of payment], in [insert the
currency or currencies of payment]; provided, however, that at the option of
the Issuer payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
register.
[If the Security is an extendible security, insert--The Securities
of this series are subject to repayment on [insert provisions with respect to
repayment date or dates] at the option of the Holders thereof exercisable on
or before the , but not prior to the
preceding such , at a repayment price equal to the principal
amount thereof to be repaid, together with interest payable thereon to the
repayment date, as described on the reverse side hereof.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
NEWMONT MINING CORPORATION
By
Attest:
SECTION 2.3 Forms of Reverse of Security, Trustee's Certificate of
Authentication and Election to Convert.
NEWMONT MINING CORPORATION
This Security is one of a duly authorized issue of securities of the
Issuer (herein called the "Securities"), issued and to be issued in one or
more series under a Convertible Senior Debt Indenture, dated as of
(herein called the "Indenture"), between the Issuer and The Bank
of New York, as Trustee (herein called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Issuer, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert--limited in aggregate principal amount
<PAGE>
to ]. The separate series of Securities may be issued in various
aggregate principal amounts, may mature at different times, may bear interest,
if any, at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking or purchase funds (if any), may
have different conversion provisions, may be subject to different repayment
provisions (if any), may be subject to different covenants and Events of
Default and may otherwise vary as in the Indenture provided. The Indenture
further provides that the Securities of a single series may be issued at
various times, with different maturity dates, may bear interest, if any, at
different rates, may be subject to different redemption provisions (if any),
may be subject to different sinking or purchase funds (if any) and may be
subject to different repayment provisions (if any).
[If applicable, insert -- The Securities of this series may not be
redeemed prior to maturity.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [[if
applicable, insert --(1) on in any year commencing with the year
and ending with the year through operation of the sinking fund for this
series (as more fully described in the next succeeding paragraph) at [[insert
either--a redemption price equal to 100% of the principal amount of the
Securities to be redeemed or the redemption prices for redemption through
operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below,]], and (2)]] at any time [[if
applicable, insert--on or after ]], as a whole or in part, at the
election of the Issuer, at the [[insert either--following redemption prices or
redemption prices for redemption otherwise than through operation of the
sinking fund]] (expressed as percentages of the principal amount): if
redeemed [[if applicable, insert--on or before , %, and if
redeemed]] during the 12-month period beginning of the years
indicated,
[[If applicable,
Redemption Price insert --
For Redemption Price
[[if applicable, For Redemption
insert -- Otherwise Than
Through Operation Through Operation
of the of the
Year Sinking Fund]] Sinking Fund]]
and thereafter at a redemption price equal to % of the principal amount
thereof, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the date
fixed for redemption, but interest installments maturing on or prior to such
redemption date will be payable to the Holders of such Securities of record at
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides
for the redemption on in each year beginning with the year and
ending with the year of [[not less than]] $ [[("mandatory sinking
fund payments") and not more than $ ]] aggregate principal amount of
Securities of this series.] [If applicable, insert--Securities of this series
acquired or redeemed by the Issuer otherwise than through [[mandatory]]
sinking fund payments and Securities of this series surrendered to the Issuer
for conversion may be credited against subsequent [[mandatory]] sinking fund
payments otherwise required to be made.]
<PAGE>
[If applicable, insert--Notwithstanding the foregoing, the Issuer
may not, prior to , redeem any Securities of this series as
contemplated by [[Clause (2) of]] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Issuer
(calculated in accordance with generally accepted financial practice) of less
than % per annum.]
[If applicable, insert--Partial redemptions must be in an amount not
less than $ principal amount of Securities.]
[If applicable, insert--In the event of redemption of this Security
in part only, a new Security or Securities of this series for the unredeemed
portion hereof having the same interest rate and maturity as this Security
will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is convertible at the option of the Holder, insert-
- - Subject to the provisions of the Indenture, the Holder hereof has the right,
at his option at any time until the close of business three Business Days
prior to the date fixed for redemption or maturity, as the case may be (except
that, in case this Security shall be called for redemption before maturity,
such right shall terminate in respect of this Security at the close of
business on the date fixed for redemption of this Security unless the Issuer
shall default in payment due upon such redemption), to convert this Security
(or any portion hereof which is [$1,000] or an integral multiple thereof) into
fully paid and nonassessable shares of Common Stock of the Issuer at the
initial conversion price of $ per share of Common Stock, subject to
such adjustment, if any, of the conversion price and the securities or other
property issuable upon conversion as may be required by the provisions of the
Indenture, but only upon surrender of this Security to the Trustee or to the
conversion agent for surrender to the Issuer in accordance with the
instructions on file with the conversion agent, accompanied by a written
notice of election to convert, which shall be substantially in the Form of
Election to Convert printed hereon, and (if required by the Issuer) by an
instrument or instruments of transfer, in form satisfactory to the Issuer,
duly executed by the Holder or by his attorney duly authorized in writing.]
[If the Security is subject to mandatory conversion or conversion at
the option of the Issuer, insert applicable provisions.]
No payment or adjustment is to be made on conversion for interest
accrued hereon or for dividends on shares of Common Stock issued on
conversion; provided, however, that if a Security is surrendered for
conversion after the Record Date for a payment of interest and on or before
the Interest Payment Date, then, notwithstanding such conversion, the interest
falling due to such Interest Payment Date will be paid to the person in whose
name the Security is registered at the close of business on such Record Date
and any Security surrendered for conversion during the period from the close
of business on any Record Date to the opening of business on the corresponding
Interest Payment Date must be accompanied by payment of an amount equal to the
interest payable on such Interest Payment Date. No fractional shares shall be
issuable upon any conversion, but in lieu thereof the Issuer shall make an
adjustment therefor in cash as provided in the Indenture.
[If the Security is not an Original Issue Discount Security, insert-
- -If an Event of Default with respect to Securities of this series shall occur
and be continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities of this series then Outstanding may declare the principal of the
Securities of this series and accrued interest thereon, if any, to be due and
payable in the manner and with the effect provided in the Indenture.] [If the
Security is an Original Issue Discount Security, insert--If an Event of De-
fault with respect to Securities of this series shall occur and be continuing,
then the Trustee or the Holders of not less than 25% in aggregate principal
amount (calculated as provided in the Indenture) of the Securities of this
series then Outstanding may declare an amount of principal of the Securities
<PAGE>
of this series due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to [[insert formula for determining
the amount]].]
[If the Security is an extendible security, insert--The Securities
of this series are subject to repayment in whole, or in part, on [insert
month, day and years], in increments of or multiples of in
excess of , provided that the portion of the principal amount of any
Security of this series not being repaid shall be at least , at the
option of the Holder thereof at a repayment price equal to the principal
amount thereof to be repaid, together with interest payable thereon to the
repayment date. For this Security to be repaid at the option of the Holder,
the Trustee must receive at the Corporate Trust Office or the New York
Location, on or before the [insert month and day] or, if such [insert month
and day] is not a day other than a day on which banking institutions in the
Borough of Manhattan, the City and State of New York are authorized or
required by law or regulation to close (a "Business Day"), the next succeeding
Business Day, but not earlier than the [insert month and day] prior to the
[insert month and day] on which the repayment price will be paid (i) this
Security, with the form entitled "Option to Elect Repayment" below duly com-
pleted, or (ii) a facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or
a commercial bank or trust company in the United States of America setting
forth the name of the Holder of this Security, the principal amount of the
Security, the amount of such Security to be repaid, a statement that the
option to elect repayment is being made thereby and a guarantee that the
Security to be repaid with the form entitled "Option to Elect Repayment" on
the reverse thereof duly completed will be received by the Issuer no later
than five Business Days after the date of such facsimile transmission or
letter, and such Security and form duly completed are received by the Issuer
by such fifth Business Day. Either form of notice duly received on or before
the [insert month and day] preceding any such [insert month and day] shall be
irrevocable. All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Securities of this series for repayment will be
determined by the Issuer, whose determination shall be final and binding.]
The Indenture permits, with certain exceptions as therein provided,
the amendment or supplementing thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Issuer and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities at the time Outstanding of all series to be affected (all such
series voting as a single class). The Indenture also contains provisions per-
mitting the Holders of not less than a majority in aggregate principal amount
(calculated as provided in the Indenture) of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive certain past defaults or Events of Default under the
Indenture and the consequences of any such defaults or Events of Default. Any
such consent or waiver by the Holder of this Security (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest, if any, on this Security at the times, place and rate, if any, and
in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security register, upon due presentment of this Security for registration of
transfer at the office or agency of the Issuer in any place where the prin-
cipal of and interest, if any, on this Security are payable, duly endorsed by,
<PAGE>
or accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, having the same interest rate and maturity and bearing
interest from the same date as this Security, of any authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination having the same interest rate and maturity and bearing
interest from the same date as such Securities, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue and
notwithstanding any notation of ownership or other writing thereon, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary. All payments made to or upon the order of such registered
Holder, shall, to the extent of the sum or sums paid, effectually satisfy and
discharge liability for monies payable on this Security.
No recourse for the payment of the principal of or interest, if any,
on this Security, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Issuer in the Indenture or any indenture supplemental thereto or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, official or director, as
such, past, present or future, of the Issuer or of any successor entity,
either directly or through the Issuer or any successor corporation, whether by
virtue of any constitution, statute or rule of law or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the ac-
ceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
All terms used in this Security and not otherwise defined herein
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
[Form of Trustee's Certificate of Authentication]
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
as Trustee
By
Authorized Signatory
[Form of Election to Convert]
<PAGE>
The undersigned Holder of this Security hereby irrevocably exercises
the option to convert this Security into shares of Common Stock of the Issuer,
in accordance with the terms of the Indenture referred to in this Security,
and directs that the shares issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned unless a different name has been indicated below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned has paid all transfer taxes payable with respect thereto.
Dated:
Signature (for conversion only)
If shares are to be issued Holder
otherwise than to Holder: Please print name and address
Please print name and address
Signature Guarantee:
SECTION 2.4 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, each of which
may consist of one or more tranches. There shall be established in or
pursuant to a Resolution, a copy of which, certified by the secretary or an
assistant secretary of the Issuer, shall be delivered to the Trustee, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of a particular series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that 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 2.9, 2.10, 2.12 or 10.3);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates
(including the Overdue Rate) shall be determined, the date or dates from
which such interest shall accrue or the method by which such date or
dates may be determined, the interest payment dates on which such
interest shall be payable and the record dates for the determination of
Holders to whom interest is payable;
(5) the place or places where the principal and any interest on
Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within
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 Issuer,
pursuant to any sinking fund or otherwise;
<PAGE>
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices
at which, the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(8) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series
may be repaid, in whole or in part, at the option of the Holder thereof;
(9) the period or periods within which, the Conversion Price or
Prices at which (and the adjustments to be made thereto (in the case of
Securities Convertible into Common Stock at the option of the Holders
thereof, only if otherwise than as provided in Section 11.4)) and the
terms and conditions upon which the Securities of the series may be
converted, in whole or in part, into Common Stock, specifying in the case
of Preferred Stock (or Preferred Stock represented by Depositary Shares)
the series designation and title thereof (as determined pursuant to the
applicable Resolution), whether such conversion is mandatory, at the
option of Holders of the Securities of the series or at the option of the
Issuer, and if the Securities of the series may be convertible into
Depositary Shares, the bank or trust company designated as Preferred
Stock Depositary;
(10) if other than Dollars, the coin or currency (including
composite currencies) in which the Securities of the series shall be
denominated and, if different, the coin or currency (including composite
currencies) in which payment of the principal of and/or interest on the
Securities of the series shall be payable;
(11) if the principal of and/or interest on the Securities of the
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency (including composite currencies) 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;
(12) if the amount of payments of principal of and/or interest on
the Securities of the series may be determined with reference to an index
based on a coin or currency (including composite currencies) other than
that in which the Securities are stated to be payable or with reference
to any other index, the manner in which such amounts shall be determined;
(13) if other than denominations of $1,000 (or if the Securities are
denominated in a currency other than Dollars or in a composite currency,
1,000 units of such other currency or composite currency) and any
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(14) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
4.1 or provable in bankruptcy pursuant to Section 4.2;
(15) if the Securities of the series are Original Issue Discount
Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of issuance
of such series;
(16) if the Securities of a series are to be issued in the form of
one or more Global Securities, the name of the Depositary who will act in
respect of such Global Securities and any other provisions relating
thereto not otherwise provided for in this Indenture; and
(17) any other terms of the series which are not inconsistent with
this Indenture.
<PAGE>
In the case of Securities of a series issued in tranches, all
Securities of any one tranche shall be substantially identical, except as to
denomination. Except as provided in the preceding sentence, all Securities of
any one series shall be substantially identical except as to denomination,
interest rate and maturity and except as may otherwise be provided in or
pursuant to such Resolution or in any such indenture supplemental hereto. The
applicable Resolution or the applicable supplemental indenture may provide
that Securities of any particular series may be issued at various times, with
different maturities and redemption and repayment provisions (if any) and
bearing interest at different rates, but shall for all purposes under this
Indenture, including, but not limited to, voting and Events of Default, be
treated as Securities of a single series.
Except as otherwise specified pursuant to this Section 2.4 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.5 Authentication and Delivery of Securities. At any time
and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
make available for delivery such Securities to or upon the written order of
the Issuer, signed by both (a) its chairman, its vice chairman, its president
or any vice president and (b) its treasurer, its controller, its secretary or
any assistant secretary, without any further action by the Issuer. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be
entitled to receive, and (subject to the requirements of the Trust Indenture
Act of 1939) shall be fully protected in relying upon:
(1) a copy of any Resolution or Resolutions relating to such
series, certified by the secretary or an assistant secretary of the
Issuer;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate setting forth the form and terms of
the Securities as required pursuant to Sections 2.1 and 2.4,
respectively, and prepared in accordance with the requirements of the
Trust Indenture Act of 1939 and Section 12.5;
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 12.5, which
shall state that (i) if the form of such Securities has been established
by or pursuant to a Resolution as permitted by Section 2.1, that such
form or forms, as the case may be, have been established in conformity
with the provisions of this Indenture, and that the terms of such
Securities have been established by or pursuant to a Resolution as
permitted by Section 2.4 in conformity with the provisions of this
Indenture and that the authentication and delivery of such Securities by
the Trustee is authorized under the provisions of this Indenture and (ii)
that such Securities, when authenticated and delivered by the Trustee and
issued by the Issuer in the manner and subject to any conditions
specified in such Opinion of Counsel will constitute valid and legally
binding obligations of the Issuer, enforceable in accordance with their
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and to general principles of
equity regardless of whether the issue of enforceability is considered in
a proceeding in equity or at law.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer
or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees
<PAGE>
and/or Responsible Officers shall determine that such action would expose the
Trustee to personal liability to existing Holders or would adversely affect
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose
duties or obligations on the Trustee which the Trustee is not able or
reasonably willing to accept; provided that the Trustee, upon the request of
the Issuer, will resign as Trustee with respect to Securities of any series as
to which such a determination is made, prior to the issuance of such
Securities, and will comply with the request of the Issuer to execute and de-
liver a supplemental indenture appointing a successor Trustee pursuant to
Section 7.1.
If the Issuer shall establish pursuant to Section 2.4 that the
Securities of a series or a tranche are to be issued in the form of one or
more Global Securities, then the Issuer shall execute and the Trustee shall,
in accordance with this Section and the order of the Issuer with respect to
such series, authenticate and deliver one or more Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series or such tranche, as
the case may be, issued and not yet cancelled, (ii) shall be registered in the
name of the Depositary for such Global Security or Securities or the nominee
of such Depositary, (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary's instructions and (iv) shall bear such legend,
if any, as shall be required by the Depositary.
Each Depositary of a Global Security designated pursuant to Section
2.4 must, at the time of its designation and at all times while it serves as
Depositary hereunder, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.
SECTION 2.6 Execution of Securities. The Securities shall be
signed on behalf of the Issuer by the chairman or any vice chairman of its
Board of Directors, its president, any vice president or its treasurer, under
its corporate seal which shall be attested by the secretary or any assistant
secretary of the Issuer. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security nevertheless may be authenticated and delivered or disposed of
as though the person who signed such Security had not ceased to be such
officer of the Issuer; and any Security may be signed on behalf of the Issuer
by such persons as, at the actual date of the execution of such Security,
shall be the proper officers of the Issuer, although at the date of the
execution and delivery of this Indenture any such person was not such an
officer.
SECTION 2.7 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one
of its authorized signatories, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Issuer shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
<PAGE>
SECTION 2.8 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as registered
securities without coupons and in denominations as shall be specified as
contemplated by Section 2.4. In the absence of any such specification with
respect to the Securities of any series, the Securities of such series shall
be issuable in denominations of U.S. $1,000 (or, if such Securities are
denominated in a currency other than U.S. dollars or in a composite currency,
1,000 units of such other currency or composite currency) and any multiple
thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of
the Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date, and shall be payable on the dates, in
each case, which shall be specified as contemplated by Section 2.4.
Except as otherwise specified for a particular series pursuant to
Section 2.4, the Person in whose name any Security of any series is registered
at the close of business on any record date (as hereinafter defined)
applicable to a particular series with respect to any interest payment date
for such series shall be entitled to receive the interest, if any, payable on
such interest payment date notwithstanding the cancellation of such Security
upon any registration of any transfer or exchange of such Security subsequent
to the record date and prior to such interest payment date, except if and to
the extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding Securities of such
series are registered at the close of business on a subsequent record date
(which shall be not less than five days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date. The term "record date" as used with respect to any
interest payment date (except a date for payment of defaulted interest) shall
mean the date specified as such in the terms of the Securities of any
particular series, or, if no such date is so specified, if such interest
payment date is the first day of a calendar month, the fifteenth day of the
next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
SECTION 2.9 Registration, Transfer and Exchange. The Issuer will
keep, either at the office or agency designated and maintained by the Issuer
for such purpose in the Borough of Manhattan, The City of New York, in
accordance with the provisions of Section 3.2, or at any of such other offices
or agencies as may be designated and maintained in accordance with the
provisions of Section 3.2, a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Securities of a series as in this Article provided.
Such register shall be in written form in the English language or in any other
form capable of being converted into such form within a reasonable time. At
all reasonable times such register or registers shall be open for inspection
by the Trustee and any Security registrar (as defined below) other than the
Trustee.
Upon due presentation for registration of transfer of any Security
of any series at any such office or agency to be maintained for the purpose as
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Security or Securities of the same series in authorized
denominations for a like aggregate principal amount and having the same
interest rate, maturity and repayment and redemption provisions.
Any Security or Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for a Security or
Securities of the same series in other authorized denominations, in an equal
<PAGE>
aggregate principal amount and having the same interest rate, maturity,
redemption and repayment provisions. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer
for the purpose as provided in Section 3.2, and the Issuer shall execute and
the Trustee shall authenticate and make available for delivery in exchange
therefor the Security or Securities of the same series and having the same
interest rate, maturity and repayment and redemption provisions which the
Securityholder making the exchange shall be entitled to receive, bearing
numbers or other distinguishing symbols not contemporaneously outstanding.
Each Person designated by the Issuer pursuant to the provisions of Section 3.2
as a Person authorized to register and register transfer of the Security is
sometimes herein referred to as a "Security registrar".
The Issuer will at all times designate one Person (who may be the
Issuer and who need not be a Security registrar) to act as repository of a
master list of names and addresses of the Holders of the Securities (the
"Register"). The Trustee shall act as such repository unless and until some
other Person is, by written notice from the Issuer to the Trustee and each
Security registrar, designated by the Issuer to act as such. The Issuer shall
cause each Security registrar to furnish to such repository, on a current
basis, such information as to all registrations of transfer and exchanges
effected by such registrar, as may be necessary to enable such repository to
maintain the Register on as current a basis as is practicable.
No Person shall at any time be designated as or act as a Security
registrar unless such Person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent
required by applicable law and regulations.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer or exchange in form satisfactory to the Issuer and the Trustee duly
executed by, the Securityholder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities, other than exchanges
pursuant to Section 2.12, 7.5 or 10.3 not involving any registration of
transfer. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer
of (a) any Securities of any series for a period of 15 days next preceding the
selection of Securities of that series to be redeemed, or (b) any Securities
selected, called or being called for redemption or surrendered for repayment
in whole or in part except, in the case of any Security to be redeemed or
repaid in part, the portion thereof not so to be redeemed or repaid.
Notwithstanding any other provision of this Section 2.9, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depository to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.5, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice
or becomes aware of such ineligibility, the Issuer's election pursuant to
Section 2.5 that such Securities be represented by one or more Global
<PAGE>
Securities shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officers' Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and make
available for delivery definitive Securities of the same series, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such
Securities, in exchange for such Global Security or Securities.
The Issuer may at any time, and in its sole discretion, determine
that Securities issued in the form of one or more Global Securities shall no
longer be represented by a Global Security or Securities. In such event the
Issuer will execute, and the Trustee, upon receipt of an Officers' Certificate
for the authentication and delivery of definitive Securities, will
authenticate and make available for delivery definitive Securities of the same
series, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities,
in exchange for such Global Security or Securities.
If specified by the Issuer pursuant to Section 2.5 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part
for definitive Securities of the same series on such terms as are acceptable
to the Issuer and such Depositary. Thereupon, the Issuer shall execute, and
the Trustee shall authenticate and make available for delivery, without
service charge:
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as
requested by such person, in an aggregate principal amount equal to and
in exchange for such person's beneficial interest in the Global Security;
and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for definitive Securities, in
authorized denominations, such Global Security shall be cancelled by the
Trustee or an agent of the Issuer or the Trustee. Definitive Securities
issued in exchange for a Global Security pursuant to this Section 2.9 shall be
registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee or an agent
of the Issuer or the Trustee. The Trustee or such agent shall make such
Securities available for delivery to or as directed by the Persons in whose
names such Securities are so registered.
SECTION 2.10 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen and, in the absence of
notice to the Issuer or the Trustee that any destroyed, lost or stolen
Security has been acquired by a bona fide purchaser, the Issuer may in its
discretion execute and the Trustee shall authenticate and make available for
delivery, a new Security of the same series and of like tenor, bearing a
number or other distinguishing symbol not contemporaneously Outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
and substitution for the Security so destroyed, lost or stolen. In every case
the applicant for a substitute Security shall furnish to the Issuer and to the
Trustee (and any agent of the Issuer or Trustee, if requested by the Issuer)
such security or indemnity as may be required by them to indemnify and defend
and to save each of them harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
<PAGE>
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer in its discretion may instead of issuing
a substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if
the applicant for such payment shall furnish to the Issuer and to the Trustee
(and any agent of the Issuer or Trustee, if requested by the Issuer) such
security or indemnity as any of them may require to indemnify and defend and
to save each of them harmless, and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Every substituted Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Secu-
rity shall be at any time enforceable by anyone and shall be entitled to all
the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities of such series duly authenticated and delivered hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, defaced or destroyed, lost or
stolen Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.11 Cancellation of Securities Paid, etc. All Securities
surrendered for the purpose of payment, redemption, registration of transfer,
conversion or exchange, or for credit against any payment in respect of a
sinking or analogous fund, if surrendered to the Issuer, any Security regis-
trar, any paying agent, the Conversion Agent or any other agent of the Issuer
or any agent of the Trustee, shall be delivered to the Trustee and promptly
cancelled by it or, if surrendered to the Trustee, shall be promptly cancelled
by it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall
deliver cancelled Securities to the Issuer. If the Issuer shall acquire any
of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.12 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and make available for delivery temporary Securities for
such series (printed, lithographed, typewritten or otherwise reproduced).
Temporary Securities of any series shall be issuable as registered Securities
without coupons, in any authorized denomination, and substantially in the form
of the definitive Securities of such series in lieu of which they are issued
but with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Issuer. Temporary
Securities may contain such reference to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities in lieu of which they are
issued. Without unreasonable delay the Issuer shall execute and shall furnish
definitive Securities of such series and thereupon temporary Securities of
such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose pursuant to
Section 3.2, and the Trustee shall authenticate and make available for
delivery in exchange for such temporary Securities of such series a like
<PAGE>
aggregate principal amount of definitive Securities of the same series of
authorized denominations having the same interest rate, maturity and
redemption and repayment provisions, and bearing interest from the same date
as such temporary Securities. Until so exchanged, the temporary Securities of
any series shall be entitled to the same benefits under this Indenture as
definitive Securities of the same series authenticated and delivered
hereunder.
SECTION 2.13 CUSIP Numbers. The Issuer in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to
Securityholders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of and interest, if
any, on each of the Securities of such series at the place or places, at the
respective times and in the manner provided in such Securities. Except as
otherwise provided pursuant to Section 2.4 for Securities of any series, each
installment of interest on the Securities of any series may be paid by mailing
checks for such interest payable to the Person entitled thereto as such
addresses shall appear in the Register.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will designate and maintain in the
Borough of Manhattan, The City of New York, for each series: (a) an office or
agency where the Securities may be presented for payment, (b) an office or
agency where Securities may be presented for conversion into Common Stock of
the Issuer (hereinafter the "Conversion Agent," which term shall include any
additional conversion agents as may be appointed by the Issuer), (c) an office
or agency where the Securities may be presented for registration of transfer
and for exchange as in this Indenture provided and (d) an office or agency
where notices and demands to or upon the Issuer in respect of the Securities
or of this Indenture may be served. In addition to such office or offices or
agency or agencies, the Issuer may from time to time designate and maintain
one or more additional offices or agencies within or outside the Borough of
Manhattan, The City of New York, where the Securities of that series may be
presented for payment or for registration of transfer or for exchange, and the
Issuer may from time to time rescind such designation, as it may deem
desirable or expedient. The Issuer will give to the Trustee written notice of
the location of any such office or agency and of any change of location
thereof. The Issuer hereby designates the New York Location and the Corporate
Trust Office as the initial offices to be maintained by it for such purposes.
In case the Issuer shall fail to maintain any such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at
the Corporate Trust Office and the Issuer appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
SECTION 3.3 Paying Agents. Whenever the Issuer shall appoint a
paying agent or agents other than the Trustee with respect to the Securities
of any series, it will cause each such paying agent to execute and deliver to
the Trustee an instrument in which each such paying agent shall agree with the
Trustee, subject to the provisions of this Section,
<PAGE>
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest, if any, on the Securities of
such series (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities of such 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) that it will give the Trustee notice of any default by the
Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest, if any, on the Securities of
such series when the same shall be due and payable, and
(c) that, at any time during the continuance of any such default
referred to in clause (b) above, upon the written request of the Trustee,
it will forthwith pay to the Trustee all sums so held in trust by such
paying agent.
Whenever the Issuer shall have one or more paying agents with
respect to Securities of any series, it will, prior to each due date of the
principal of or interest, if any, on the Securities of such series, deposit
with a designated paying agent a sum sufficient to pay such principal or
interest, if any, so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest, if any, and
(unless such paying agent is the Trustee) the Issuer will promptly notify the
Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest, if any, on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Persons entitled to such principal
and interest, if any, a sum sufficient to pay such principal or interest, if
any, so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge
with respect to one or more or all series of Securities hereunder, or for any
other reason, pay or cause to be paid to the Trustee all sums held in trust
for any such series by the Issuer or any paying agent hereunder, as required
by this Section, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.3 and 9.4.
SECTION 3.4 Limitation on Liens. The Issuer will not itself, and
will not permit any Restricted Subsidiary to, incur, issue, assume or
guarantee any indebtedness for money borrowed or any other indebtedness
evidenced by notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed (hereinafter in this Section and in Section
3.5 called "Debt") secured by pledge of, or mortgage, deed of trust or other
lien on, any Principal Property owned by the Issuer or any Restricted
Subsidiary, or any shares of stock or Debt of any Restricted Subsidiary (such
pledges, mortgages, deeds of trust and other liens being hereinafter in this
Section and in Section 3.5 called "Mortgage" or "Mortgages"), without
effectively providing that the Securities of all series (together with, if the
Issuer shall so determine, any other Debt of the Issuer or such Restricted
Subsidiary then existing or thereafter created which is not subordinate to the
Securities) shall be secured equally and ratably with (or prior to) such
secured Debt, so long as such secured Debt shall be so secured, unless, after
giving effect thereto, the aggregate principal amount of all such secured Debt
which would otherwise be prohibited, plus all Attributable Debt of the Issuer
and its Restricted Subsidiaries in respect of sale and leaseback transactions
(as defined in Section 3.5) which would otherwise be prohibited by Section 3.5
<PAGE>
would not exceed the sum of 10% of Consolidated Net Tangible Assets; provided,
that this Section shall not apply to, and there shall be excluded from secured
Debt in any computation under this Section, Debt secured by:
(a) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(b) Mortgages to secure indebtedness of any Restricted Subsidiary
to the Issuer or to another Restricted Subsidiary;
(c) Mortgages for taxes, assessments or governmental charges or
levies in each case (i) not then due and delinquent or (ii) the validity
of which is being contested in good faith by appropriate proceedings, and
materialmen's, mechanics', carriers', workmen's, repairmen's, landlord's
or other like Mortgages, or deposits to obtain the release of such
Mortgages;
(d) Mortgages arising under an order of attachment or distraint or
similar legal process so long as the execution or enforcement thereof is
effectively stayed and the claims secured thereby are being contested in
good faith;
(e) Mortgages to secure public or statutory obligations or to
secure payment of workmen's compensation or to secure performance in
connection with tenders, leases of real property, bids or contracts or to
secure (or in lieu of) surety or appeal bonds and Mortgages made in the
ordinary course of business for similar purposes;
(f) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in
favor of any other country, or any political subdivision thereof, to
secure partial, progress, advance or other payments pursuant to any
contract or statute (including Debt of the pollution control or
industrial revenue bond type) or to secure any indebtedness incurred for
the purpose of financing all or any part of the purchase price or the
cost of construction of the property subject to such Mortgages;
(g) Mortgages on property (including any lease which should be
capitalized on the lessee's balance sheet in accordance with generally
accepted accounting principles), shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation or through purchase or transfer of the properties of a
corporation as an entirety or substantially as an entirety) or to secure
the payment of all or any part of the purchase price or construction cost
or improvement cost thereof or to secure any Debt incurred prior to, at
the time of, or within one year after, the acquisition of such property
or shares or Debt or the completion of any such construction (including
any improvements on an existing property) or the commencement of
commercial operation of such property, whichever is later, for the
purpose of financing all or any part of the purchase price or
construction cost thereof;
(h) Mortgages existing at the date of this Indenture; and
(i) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Mortgage referred to in the foregoing clauses (a) to (h), inclusive;
provided, that (i) such extension, renewal or replacement Mortgage shall
be limited to all or a part of the same property, shares of stock or Debt
that secured the Mortgage extended, renewed or replaced (plus
improvements on such property) and (ii) the Debt secured by such Mortgage
at such time is not increased
<PAGE>
; and provided further, that these restrictions shall not apply to (i) any
gold-based loan or forward sale, and (ii) Mortgage upon property owned or
leased by the Issuer or any Restricted Subsidiary or in which the Issuer or
any Restricted Subsidiary owns an interest to secure the Issuer's or a
Restricted Subsidiary's proportionate share of any payments required to be
made to any Person incurring the expense of developing, exploring, or
conducting operations for the recovery, processing or sale of the mineral
resources of such owned or leased property and any such loan, arrangement or
payment referred to in clauses (i) and (ii) of this proviso shall not be
deemed to constitute secured Debt and, shall not be included in any
computation under these restrictions.
SECTION 3.5 Limitation on Sales and Leasebacks. The Issuer will not
itself, and it will not permit any Restricted Subsidiary to, enter into any
arrangement with any bank, insurance company or other lender or investor (not
including the Issuer or any Restricted Subsidiary) or to which any such lender
or investor is a party, providing for the leasing by the Issuer or any such
Restricted Subsidiary for a period, including renewals, in excess of three
years, of any Principal Property owned by the Issuer or such Restricted
Subsidiary which has been or is to be sold or transferred more than 270 days
after the acquisition thereof or after the completion of construction and
commencement of full operation thereof, by the Issuer or any such Restricted
Subsidiary to such lender or investor or to any person to whom funds have been
or are to be advanced by such lender or investor on the security of such
Principal Property (herein referred to as a "sale and leaseback transaction")
unless either:
(a) the Issuer or such Restricted Subsidiary could create Debt
secured by a Mortgage on the Principal Property to be leased back in an
amount equal to the Attributable Debt with respect to such sale and
leaseback transaction without equally and ratably securing the Securities
of all series pursuant to Section 3.4, or
(b) the Issuer within 180 days after the sale or transfer shall
have been made by the Issuer or by any such Restricted Subsidiary,
applies an amount equal to the greater of (i) the net proceeds of the
sale of the Principal Property sold and leased back pursuant to such
arrangement or (ii) the fair market value of the Principal Property so
sold and leased back at the time of entering into such arrangement (as
determined by any two of the following: the chairman, the vice chairman,
the president, any vice president, the treasurer, the controller or the
secretary of the Issuer) to (x) the purchase of property, facilities or
equipment (other than the property, facilities or equipment involved in
such sale) having a value at least equal to the net proceeds of such sale
or (y) the retirement of Funded Debt of the Issuer or any Restricted
Subsidiary; provided, that the amount required to be applied to the
retirement of Funded Debt of the Issuer shall be reduced by (i) the
principal amount of any Securities of any series (or, if the Securities
of any series are Original Issue Discount Securities, such portion of the
principal amount as may be due and payable with respect to such series
pursuant to a declaration in accordance with Section 4.1 or if the
Securities of any series provide that an amount other than the face
thereof will or may be payable upon the maturity thereof or a declaration
of acceleration of the maturity thereof, such amount as may be due and
payable with respect to such securities pursuant to a declaration in
accordance with Section 4.1.) delivered within 180 days after such sale
or transfer to the Trustee for retirement and cancellation, and (ii) the
principal amount of Funded Debt, other than the Securities of any series,
voluntarily retired by the Issuer within 180 days after such sale or
transfer. Notwithstanding the foregoing, no retirement referred to in
this clause (b) may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or any mandatory prepayment provision.
SECTION 3.6 Notice of Default. The Issuer shall file with the
Trustee written notice of the occurrence of any default or Event of Default
<PAGE>
within five Business Days of its becoming aware of any such Default or Event
of Default.
SECTION 3.7 Calculation of Original Issue Discount. The Issuer
shall file with the Trustee promptly at the end of each calendar year a
written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Securities as of the
end of such year.
SECTION 3.8 Reports. The Issuer shall comply with the provisions
of Section 314(a) of the Trust Indenture Act of 1939 and shall file with the
Trustee within 45 days after it files them with the Commission and in any
event no later than 60 days after the end of the respective fiscal quarter,
copies of its annual report and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission
may by rules and regulations prescribe) which the Issuer is required to file
with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended.
SECTION 3.9 Compliance Certificates. (a) On or before April 15 in
each year (commencing with the first April 15 which is not less than 60 days
following the first date of issuance of Securities of any series under this
Indenture), the Issuer will file with the Trustee a brief certificate, signed
by the principal executive officer, the principal financial officer, or the
principal accounting officer of the Issuer, stating whether or not the signer
has knowledge of any default by the Issuer in the performance or fulfillment
of any covenant, agreement, or condition contained in this Indenture, and, if
so, specifying each such default of which the signer has knowledge, the nature
thereof, and what action, if any, has been taken and is proposed to be taken
to cure such default. For purposes of this paragraph, such compliance shall
be determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(b) The Issuer also shall comply with the other provisions of
Section 314(a) of the Trust Indenture Act of 1939.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Events of Default. "Event of Default" with respect to
Securities of a particular series wherever used herein, means any one of the
following events and such other events as may be established with respect to
the Securities of such series as contemplated by Section 2.4, continued for
the period of time, if any, and after the giving of notice, if any, designated
in this Indenture or as may be established with respect to such Securities as
contemplated by Section 2.4, as the case may be, unless such event is either
inapplicable or is specifically deleted or modified in, or pursuant to, the
applicable Resolution or in the supplemental indenture under which such series
of Securities is issued, as the case may be, as contemplated by Section 2.4:
(a) default in the payment of any installment of interest, if any,
upon any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period of
30 days; or
(b) default in the payment of the principal of any of the
Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise;
or
(c) default in the payment of any sinking fund installment as and
when the same shall become due and payable by the terms of the Securities
of such series; or
<PAGE>
(d) failure on the part of the Issuer duly to observe or perform
any other of the covenants or agreements on the part of the Issuer in
respect of the Securities of such series contained in this Indenture
(other than a covenant or agreement in respect of the Securities of such
series a default in the performance of which or a breach of which is
elsewhere in this Section specifically addressed), 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 Issuer by the Trustee or
to the Issuer and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such 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
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or for all or substantially all of its property
or ordering the winding up or liquidation of its affairs, and such decree
or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Issuer or for all or sub-
stantially all of its property, or make any general assignment for the
benefit of creditors.
If an Event of Default with respect to any series of Securities at
the time Outstanding occurs and is continuing, then, and in each and every
such case, unless the principal of all of the Securities of such series shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities of
such series, by notice in writing to the Issuer (and to the Trustee if given
by Securityholders), may declare the entire principal amount (or, if the
Securities of such series are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms of such series or if so
provided pursuant to Section 2.4 for Securities of any series, such other
amount as is specified pursuant thereto) of all of the Securities of such
series and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof or if so provided pursuant to Section 2.4 for Securities of any
series, such other amount as is specified pursuant thereto) of the Securities
of any series shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided,
(a) the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all
the Securities of such series and the principal of any and all Securities
of such series which shall have become due otherwise than by such
declaration of acceleration (with interest upon such principal and, to
the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, if any, at the Overdue Rate
applicable to such series to the date of such payment or deposit), and
all amounts payable to the Trustee pursuant to Section 5.5, and
<PAGE>
(b) any and all Events of Default under the Indenture with respect
to such series of Securities other than the non-payment of the principal
of such Securities which shall have become due by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as
provided herein or provision shall have been made therefor to the
satisfaction of the Trustee, then and in every such case the Holders of
not less than a majority in aggregate principal amount of the Securities
of such series then Outstanding, by written notice to the Issuer and to
the Trustee, may rescind and annul such declaration and its consequences
with respect to such series, but no such rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any
right consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such accelera-
tion, and payment of such portion of the principal thereof as shall be due and
payable as a result of such acceleration, together with interest, if any,
thereon and all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Securities. If the securities of any
series provide the amount other than the face amount thereof will be payable
upon the maturity thereof or a declaration of acceleration of the maturity
thereof, for purposes of this Section 4.1 the principal amount of such
Securities shall be deemed to be such amount as shall be due and payable upon
the acceleration of the of the maturity thereof, except as may otherwise be
provided with respect to such securities pursuant to Section 2.4.
If the Securities of any series provide that an amount other than
the face amount thereof will be payable upon the maturity thereof or upon a
declaration of acceleration of the maturity thereof, for purposes of this
Section 4.1 the principal amount of such Securities shall be deemed to be such
amount as shall be due and payable upon the acceleration of the maturity
thereof, except as may otherwise be provided with respect to such Securities
pursuant to Section 2.4.
SECTION 4.2 Payment of Securities on Default; Suit Therefor. The
Issuer covenants that (a) in case a default shall be made in the payment of
any installment of interest on any of the Securities of any series as and when
such interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case a default shall be made in
the payment of the principal of any of the Securities of any series as and
when the same shall have become due and payable, whether upon maturity of the
Securities of such series or upon redemption or by declaration or otherwise,
or (c) in case of a default in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due by the terms of the
Securities of any series -- then, upon demand of the Trustee, the Issuer will
pay to the Trustee for the benefit of the Holders of the Securities of such
series the whole amount then due and payable on all Securities of such series
for principal and interest, if any, as the case may be (with interest to the
date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, if any, at the Overdue Rate applicable to Securities
of such series); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and any further
amounts payable to the Trustee pursuant to Section 5.5.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest, if any, on the Securities of any series to the
registered Holders, whether or not the principal of and interest, if any, on
the Securities of such series be overdue.
<PAGE>
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Issuer or any other obligor upon the Securities of
any series under Title 11 of the United States Code or any other similar
applicable Federal or state law, or in case a receiver, trustee in bankruptcy
or similar official shall have been appointed for the property of the Issuer
or such other obligor, or in case of any other similar judicial proceedings
relative to the Issuer or other obligor upon the Securities of any series, or
to the creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the provisions
of this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of any series are Original Issue
Discount Securities or if the Securities of any series provide that an
amount other than the face thereof will or may be payable upon maturity
thereof or upon a declaration of acceleration thereof, such amount as may
be due and payable with respect to such series pursuant to a declaration
in accordance with Section 4.1) and interest, if any, owing and unpaid in
respect of the Securities of any series, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for any amounts payable to the Trustee
pursuant to Section 5.5) and of the Securityholders allowed in any
judicial proceedings relating to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer
or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of
a trustee or a standby trustee in arrangement, reorganization, liqui-
dation or other bankruptcy or insolvency proceedings or of a person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf (after deduction of costs and expenses of collection, and
any further amounts payable to the Trustee pursuant to Section 5.5 and
incurred by it up to the date of distribution); and any trustee in bank-
ruptcy, receiver or other similar official is hereby authorized by each
of the Securityholders to make payments to the Trustee, and, in the event
that the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee costs and expenses of collection,
and any further amounts payable to the Trustee pursuant to Section 5.5
and incurred by it up to the date of distribution.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
<PAGE>
All rights of action and of asserting claims under this Indenture,
or under the Securities of any series, may be enforced by the Trustee without
the possession of any of the Securities of such series or the production
thereof on any trial or other proceedings relative thereto, and any such
action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, shall be
for the ratable benefit of the Holders of the Securities in respect of which
such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
in which a declaratory judgment of a court may be sought as to the
interpretation or construction of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
Holders of the Securities to which such proceedings relate, and it shall not
be necessary to make any Holders of such Securities parties to any such
proceedings.
SECTION 4.3 Application of Moneys Collected by Trustee. Any moneys
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 the case of
distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which moneys have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities in reduced principal amounts in exchange for the presented
Securities of like series (or, in the case of Securities of a series issued in
more than one tranche, of the same tranche) and tenor if only partially paid,
or upon surrender thereof if fully paid:
FIRST: To the payment of amounts due to the Trustee pursuant to
Section 5.5;
SECOND: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest, if any, on the Secu-
rities in default in the order of the maturity of the installments of
such interest, with interest (to the extent that such interest has been
collected by the Trustee and to the extent permitted by applicable law)
upon the overdue installments of interest at the Overdue Rate applicable
to such Securities, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall have become and shall
be then due and payable by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon such Securities for principal
and interest, if any, with interest upon the overdue principal, and (to
the extent that such interest has been collected by the Trustee and to
the extent permitted by applicable law) upon overdue installments of
interest, if any, at the Overdue Rate applicable to such Securities; and
in case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon such Securities, then to the payment of such
principal and interest, if any, without preference or priority of
principal over interest, if any, or of interest, if any, over principal,
or of any installment of interest, if any, over any other installment of
interest, if any, or of any Security over any other Security, ratably to
the aggregate of such principal and accrued and unpaid interest, if any;
and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other person lawfully entitled thereto.
SECTION 4.4 Proceedings by Trustee. In case an Event of Default
hereunder has occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law
<PAGE>
or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Trustee, then and
in every such case the Issuer and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall continue as
though no such proceedings had been taken.
SECTION 4.6 Proceedings by Securityholders. No Holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee in bankruptcy, receiver or
other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default with
respect to Securities of such series and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action,
suit or proceedings in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of in-
demnity shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 4.8 during such 60 day period;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security with every other taker and Holder and the
Trustee, that no one or more Holders of any Securities shall have any right in
any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series. For the protection and
enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 4.7 Remedies Cumulative and Continuing. Except as provided
in Section 4.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Securityholders 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.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders of any or all
series, as the case may be, may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the Securityholders of such
series or all series, as the case may be.
<PAGE>
SECTION 4.8 Control by Securityholders. The Holders of not less
than a majority in aggregate principal amount of the Securities of each series
affected at the time Outstanding (with each such series voting separately as a
class) 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 by this Indenture with respect to
Securities of such series. Notwithstanding any of the foregoing, no such
direction shall be otherwise than in accordance with law and the provisions of
this Indenture and (subject to the requirements of the Trust Indenture Act of
1939) the Trustee shall have the right to decline to follow any such direction
if the Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or would be unjustly
prejudicial to the Holders of such Securities not taking part in such
direction, or the Holders of the Securities of any other series, or if the
Trustee in good faith by its board of directors, the executive committee or a
trust committee of directors or responsible officers of the Trustee shall de-
termine that the action or proceedings so directed would involve the Trustee
in personal liability.
Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is
not inconsistent with such direction or directions by Securityholders.
SECTION 4.9 Waiver of Past Defaults. Prior to the declaration of
the acceleration of the maturity of the Securities of any particular series
the Holders of not less than a majority in aggregate principal amount of the
Securities of such particular series at the time Outstanding may on behalf of
the Holders of all the Securities of such particular series waive any past
default or Event of Default with respect to such particular series and its
consequences, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected as provided in Section 7.2. In the case of any
such waiver, the Issuer, the Trustee and the Holders of the Securities of each
series affected shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement
for Expenditure of Own Funds. Subject to the provisions of the Trust
Indenture Act of 1939:
(a) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, in the absence of bad faith on the
part of the Trustee, upon certificates or opinions conforming to the
requirements of this Indenture; but in the case of any such certificates
or opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically pre-
<PAGE>
scribed); and any Resolution may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any advice of such
counsel or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, 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, consent, order, bond, direction, note or other paper or
document unless requested in writing so to do by the Holders of not less
than a majority in aggregate principal amount of the Securities of any
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; and the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee,
shall be repaid by the Issuer upon demand;
(f) 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 not regularly in its employ and the Trustee shall not be re-
sponsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder; and
(g) 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.
None of the provisions contained in this Indenture shall be
construed as requiring the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers if there shall be
reasonable grounds for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the requirements of the Trust
Indenture Act of 1939.
SECTION 5.2 No Responsibility for Recitals, etc. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities, provided that the Trustee shall not be
relieved of its duty to authenticate Securities only as authorized by this
<PAGE>
Indenture. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.3 Trustee and Agents May Hold Securities. The Trustee or
any agent of the Issuer or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights
it would have if it were not the Trustee or such agent and, subject to the
requirements of the Trust Indenture Act of 1939, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee or such agent.
SECTION 5.4 Moneys to Be Held in Trust. Subject to the provisions
of Sections 9.3 and 9.4, all moneys received by the Trustee or any paying
agent, all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 9.8 and all money received by the Trustee in respect of
U.S. Government Obligations deposited with the Trustee pursuant to Section
9.8, shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the Trustee nor any paying agent shall be under any liability for interest on
any moneys received by it hereunder, except such as it may agree in writing
with the Issuer to pay thereon. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys shall be
paid from time to time upon the written order of the Issuer signed by one of
its officers, who is one of the officers who may sign an Officers'
Certificate.
SECTION 5.5 Compensation and Expenses of Trustee. The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to from time to
time in writing by the Issuer and the Trustee (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) and, except as otherwise expressly provided, the Issuer will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accord-
ance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Issuer also
covenants to indemnify the Trustee for, and to hold it harmless against, any
and all loss, liability, damage, claim or expense, including taxes (other than
taxes based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against any
claim of liability in the premises. The obligations of the Issuer under this
Section to compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture. Such additional indebtedness shall be secured by a lien prior
to that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 4.1(e) or Section 4.1(f), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to the requirements of the Trust Indenture Act of 1939, whenever in
the administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action to be taken hereunder, such matter (unless
<PAGE>
other evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 5.7 Eligibility of Trustee. The Trustee for each series of
Securities hereunder shall at all times be a corporation which complies with
the requirements of the Trust Indenture Act of 1939, having a combined capital
and surplus of at least $5,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation at any time
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 5.8.
SECTION 5.8 Resignation or Removal of Trustee; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer. Upon
receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been appointed with respect to any series and have accepted appointment within
30 days after the mailing of notice of resignation or removal, the trustee
resigning or being removed may petition any court of competent jurisdiction
for the appointment of a successor trustee, or any Securityholder who has been
a bona fide Holder of a Security or Securities of the applicable series for at
least six months may, subject to the requirements of the Trust Indenture Act
of 1939, on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.7 with respect to any series of Securities and
shall fail to resign after written request therefor by the Issuer or by
any Securityholder; or
(ii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator 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, the Issuer by Resolution may remove the Trustee with
respect to the applicable series of Securities (or all series, if required)
and appoint a successor trustee for such series by written instrument, in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the requirements of the Trust Indenture Act
of 1939, any Securityholder who has been a bona fide Holder of a Security or
Securities 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 removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any,
<PAGE>
as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee with respect to such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 6.1 of the action in that regard taken by
the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.8 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.9.
SECTION 5.9 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.8 shall execute,
acknowledge and deliver to the Issuer and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers, duties
and obligations with respect to such series of its predecessor hereunder, with
like effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor
trustee, upon payment (or due provision therefor) of any amounts then due it
pursuant to Section 5.5, the predecessor Trustee ceasing to act shall, subject
to Section 9.4, pay over to the successor trustee all moneys at the time held
by it hereunder and shall execute and deliver an instrument transferring to
such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a lien upon all property or funds held or
collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 5.5.
If a successor trustee is appointed with respect to the Securities
of one or more (but not all) series, the Issuer, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and 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.
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 5.9 unless at the time of such
acceptance such successor trustee shall, with respect to such series, be
qualified under the provisions of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 5.7.
Upon acceptance of appointment by any successor trustee as provided
in this Section 5.9, the Issuer shall mail notice thereof to the Holders of
Securities of any series for which such successor trustee is acting as trustee
at their last addresses as they shall appear in the Register. If the Issuer
fails to mail such notice within ten days after acceptance of appointment by
<PAGE>
the successor trustee, the successor trustee shall cause such notice to be
mailed at the Issuer's expense.
SECTION 5.10 Merger, Conversion, Consolidation or Succession to
Business of Trustee. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided, that such
corporation shall be qualified under the provisions of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 5.7, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee
by merger, conversion or consolidation may adopt the certificate of
authentication of any predecessor Trustee and deliver such Securities so
authenticated; and, in case at that time any of the Securities of any series
shall not have been authenticated, any successor to the Trustee may authen-
ticate such Securities either in the name of such successor to the Trustee or,
if such successor to the Trustee is a successor by merger, conversion or
consolidation, in the name of any predecessor hereunder; and in all such cases
such certificate shall have the full force which the certificate of the
Trustee shall have as provided anywhere in the Securities of such series or in
this Indenture.
SECTION 5.11 Reports by Trustee to Security-holders. Within 60
days after March 15 in each year, beginning with the March 15 following the
date of this Indenture, the Trustee shall mail to the Securityholders a brief
report dated as of such reporting date in compliance with Section 313(a) of
the Trust Indenture Act of 1939. The Trustee also shall comply with Section
313(b) of the Trust Indenture Act of 1939. The Trustee shall also transmit by
mail all reports as required by Section 313(c) of the Trust Indenture Act of
1939. The Issuer shall promptly notify the Trustee when the Securities are
listed on any stock exchange.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Action by Securityholders. Whenever in this Indenture
it is provided that the Holders of a specified percentage in aggregate
principal amount of the Securities of any or all series may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of such Holders of Securities
voting in favor thereof at any meeting of such Securityholders duly called and
held in accordance with the provisions of this Article, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of such Securityholders; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments and/or such record are delivered to the Trustee. Proof of
execution of any instrument or of a writing appointing any such agent or proxy
shall be sufficient for any purpose of this Indenture and (subject to the
requirements of the Trust Indenture Act of 1939 and Section 5.1) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this
Article.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have taken any action
<PAGE>
(including the making of any demand or request), the giving of any notice,
consent or waiver (or the taking of any other action) hereunder and in deter-
mining voting rights of any Holder of a Security hereunder (i) the principal
amount of Original Issue Discount Securities that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.1,
(ii) in the case of Securities which provide that an amount other than the
face amount thereof will or may be payable upon the maturity thereof or upon a
declaration of acceleration of the maturity thereof, the principal amount of
such Securities that shall be deemed to be Outstanding for such purposes shall
be the amount that would be due and payable in respect of such Securities as
of the date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 4.1, and (iii) the principal amount of
any Security, the principal amount of which is denominated in a currency other
than U.S. dollars or in units of currencies or in a composite currency (the
"Specified Currency") shall be deemed to be that amount of U.S. dollars which
could have been obtained by the face amount of such Specified Currency at the
Market Exchange Rate. For purposes of this Section 6.1, "Market Exchange
Rate" means the noon U.S. dollar buying rate in New York City for cable
transfers of the Specified Currency published by the Federal Reserve Bank of
New York; provided, however, in the case of ECUs, "Market Exchange Rate" means
the rate of exchange determined by the Commission of the European Communities
(or any successor thereto) as published in the Official Journal of the
European Communities (such publication or any successor publication, the
"Journal"). If such Market Exchange Rate is not available for any reason with
respect to such Specified Currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the Specified Currency, which
for purposes of the ECUs shall be Brussels, Belgium, or such other quotations
or, in the case of ECUs, rates of exchange as the Trustee shall deem
appropriate.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Issuer and all Securityholders.
If the Issuer shall solicit from the Securityholders any demand,
request, notice, consent, waiver or the taking of any other action (other than
in accordance with the Securityholders voting provisions set forth in Sections
6.6 through 6.13 of this Article), the Issuer may, at its option, by a
Resolution, fix in advance a record date for the determination of Holders
entitled to give such demand, request, notice, consent or waiver or to take
such other action, but the Issuer shall have no obligation to do so. If such
a record date is fixed, such demand, request, notice, consent, waiver or such
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite percentage of Securities Outstanding have authorized or agreed or
consented to such demand, request, notice, consent, waiver or taking of any
other action, and for that purpose the Securities Outstanding shall be
computed as of the record date; provided, that no such demand, request,
notice, consent, waiver or taking of any other action by the Holders on the
record date shall be deemed effective unless it shall become effective pursu-
ant to the provisions of this Indenture not later than six months after the
record date.
SECTION 6.2 Proof of Execution by Security-holders. Subject to the
requirements of the Trust Indenture Act of 1939 and Sections 5.1 and 6.11,
proof of the execution of any instrument by a Securityholder or his agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
<PAGE>
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Securities shall be proved by
the Register or by a certificate of the Person designated by the Issuer to
keep the Register and to act as repository in accordance with the provisions
of Section 2.9.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 6.12.
SECTION 6.3 Holders to Be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security shall be registered in the Register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest, if
any, on such Security and for all other purposes; and neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee shall be affected by
any notice to the contrary. All such payments so made to any such Person, or
upon his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any demand,
request, notice, direction, consent or waiver under this Indenture, Securities
which are owned by the Issuer or any other obligor on the Securities with
respect to which such determination is being made or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to
be Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such demand, request, notice, direction, consent or waiver only Securities
which the Trustee actually knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding for purposes of this Section 6.4 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 Issuer or any other obligor upon
the Securities or any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities. In case of a dispute as to such right, the advice
of counsel shall be full protection in respect of any decision made by the
Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Securities, if any, known by the Issuer to be owned or
held by or for the account of any of the above-described persons; and, subject
to the requirements of the Trust Indenture Act of 1939 and Section 5.1, the
Trustee shall, in the absence of manifest error, accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of
any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 6.1,
of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number or other distinguishing symbol of which is shown by
the evidence to be included among the serial numbers or other distinguishing
symbols of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
<PAGE>
Holders and owners of such Security and of any Securities issued in exchange
or substitution therefor, irrespective of whether or not any notation in
regard thereto is made upon any such Security. Any action taken by the
Holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the
Trustee and the Holders of all the Securities affected by such action.
SECTION 6.6 Securityholders' Meetings; Purposes. A meeting of
Holders of Securities of any series or all series, as the case may be, may be
called at any time and from time to time pursuant to the provisions of this
Article Six for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any
default or Event of Default hereunder and its consequences, or to take
any other action authorized to be taken by Securityholders pursuant to
any of the provisions of Article Four;
(2) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 7.2; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Securities of any series or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
SECTION 6.7 Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Holders of Securities of any series or all series, as
the case may be, to take any action specified in Section 6.6, to be held at
such time and at such place in the Borough of Manhattan, The City of New York,
as the Trustee shall determine. Notice of every meeting of the Holders of
Securities of any series or all series, as the case may be, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed to Holders of Outstanding Securities
of each series affected at their addresses as they shall appear in the
Register as of a date not more than 15 days prior to the mailing of such
notice. Such notice shall be mailed not less than 20 nor more than 90 days
prior to the date fixed for the meeting.
Any meeting of the Holders of Securities of any series or all
series, as the case may be, shall be valid without notice if the Holders of
all Securities of any series than Outstanding are present in person or by
proxy, or, if notice is waived before or after the meeting by the Holders of
all Securities of any series outstanding, and if the Issuer and the Trustee
are either present by duly authorized representatives or have, before or after
the meeting waived notice.
SECTION 6.8 Call of Meetings by Issuer or Securityholders. In case
at any time the Issuer, pursuant to a Resolution, or the Holders of at least
10% in aggregate principal amount of the Securities then Outstanding of any or
all series, as the case may be, shall have requested the Trustee to call a
meeting of the Holders of Securities of such series or all series, as the case
may be, by written request setting forth in reasonable detail the action pro-
posed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Issuer or such Securityholders, in the amount specified above, may determine
the time and the place in said Borough of Manhattan for such meeting and may
call such meeting to take any action authorized in Section 6.6, by mailing
notice thereof as provided in Section 6.7.
SECTION 6.9 Qualifications for Voting. To be entitled to vote at
any meeting of Securityholders a Person shall (a) be a Holder of one or more
<PAGE>
Securities with respect to which such meeting is being held or (b) be a Person
appointed by an instrument in writing as proxy by a Holder of one or more such
Securities. The only Persons who shall be entitled to be present or to speak
at any meeting of Securityholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Issuer and its counsel.
SECTION 6.10 Quorum; Adjourned Meetings. The Persons entitled to
vote a majority in aggregate principal amount of the Securities of the
relevant series at the time Outstanding shall constitute a quorum for the
transaction of all business specified in Section 6.6. No business shall be
transacted in the absence of a quorum (determined as provided in this Section
6.10). In the absence of a quorum within 30 minutes after the time appointed
for any such meeting, the meeting shall, if convened at the request of the
Holders of Securities (as provided in Section 6.8), be dissolved. In any
other case the meeting shall be adjourned for a period of not less than ten
days as determined by the chairman of the meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting shall be further
adjourned for a period of not less than ten days as determined by the chairman
of the meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 6.7, except that such notice must be mailed not
less than five days prior to the date on which the meeting is scheduled to be
reconvened.
Any Holder of a Security who has executed in person or by proxy and
delivered to the Trustee an instrument in writing complying with the
provisions of Section 6.2 shall be deemed to be present for the purposes of
determining a quorum and be deemed to have voted; provided, that such Holder
of a Security shall be considered as present or voting only with respect to
the matters covered by such instrument in writing.
SECTION 6.11 Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall determine.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Issuer or by Securityholders as provided in Section 6.8, in which case the
Issuer or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by the vote of the Holders
of a majority of the principal amount of the Outstanding Securities present at
the meeting.
Subject to the provisions of Section 6.4, at any meeting each Holder
of Securities with respect to which such meeting is being held or proxy shall
be entitled to one vote for each U.S. $1,000 (or if any Securities are
denominated in a currency other than U.S. dollars or in units of currencies or
in a composite currency, the equivalent of U.S. $1,000 in the applicable
currency, units of currencies or composite currency calculated using the
market Exchange Rate) principal amount (or in the case of Original Issue
Discount Securities or, in the case of Securities which provide that an amount
other than the face amount thereof will or may be payable upon the maturity
thereof or upon a declaration of acceleration of the maturity thereof, such
principal amount to be determined as provided in the definition of
"Outstanding" in Section 1.1) of such Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any such Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of such Securities held by
him or instruments in writing as aforesaid duly designating him as the Person
to vote on behalf of other such Securityholders. Any meeting of Holders of
<PAGE>
Securities with respect to which a meeting was duly called pursuant to the
provisions of Section 6.7 or 6.8 may be adjourned from time to time by the
Holders of a majority of the principal amount of the Outstanding Securities
present, whether or not constituting a quorum, and the meeting may be held as
so adjourned without further notice.
SECTION 6.12 Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures
of such Holders of Securities or of their representatives by proxy and the
principal amount (in the case of Original Issue Discount Securities or, in the
case of Securities which provide that an amount other than the face amount
thereof will or may be payable upon the maturity thereof or upon a declaration
of acceleration of the maturity thereof, such principal amount to be deter-
mined as provided in the definition of "Outstanding" in Section 1.1) and
number or numbers or other distinguishing symbol or symbols of such Securities
held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary
of the meeting their verified written reports in duplicate of all votes cast
at the meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed as provided in Section
6.7. The record shall show the principal amount of the Securities (in the
case of Original Issue Discount Securities or, in the case of Securities which
provide that an amount other than the face amount thereof will or may be
payable upon the maturity thereof or upon a declaration of acceleration of the
maturity thereof, such principal amount to be determined as provided in the
definition of "Outstanding" in Section 1.1) voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Issuer and the other to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 6.13 No Delay of Rights by Meeting. Nothing in this
Article Six shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders of any or all series or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Securityholders of any or all such series under any of the
provisions of this Indenture or of the Securities.
SECTION 6.14 Written Consent in Lieu of Meeting. The written
authorization or consent by the Holders of the requisite percentage in
aggregate principal amount of Outstanding Securities of one or more series
herein provided, entitled to vote at any such meeting, evidenced as provided
in Section 6.1 and filed with the Trustee, shall be effective in lieu of a
meeting of the Holders of Securities of such series, with respect to any
matter provided for in this Article Six.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by, or pursuant to a Resolution,
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of
<PAGE>
the Trust Indenture Act of 1939 as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee
shall consider to be for the benefit of the Holders of one or more series
of Securities (and if such covenants, restrictions, conditions or
provisions are to be for the benefit of less than all series of
Securities, stating that such covenants, restrictions, conditions or
provisions are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Issuer;
(d) to add additional Events of Default and to provide with respect
thereto for any particular periods of grace after default (which may be
shorter or longer than that allowed in the case of other defaults) or for
immediate enforcement upon such default or for any limitation of the
remedies available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of Securities
in bearer form (including Securities registrable as to principal only)
with or without interest coupons and to provide for exchangeability of
such Securities with the Securities of the same series or tranche, as the
case may be, issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any
supplemental indenture; or to change or eliminate any provision or to
make such other provisions in regard to matters or questions arising
under this Indenture or under any supplemental indenture as the Issuer
may deem necessary or desirable and which shall not adversely affect the
interests of the Holders of the Securities at the time Outstanding;
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.4; 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 to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant
to the requirements of Section 5.9.
Upon the request of the Issuer, accompanied by a copy of a
Resolution certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, the Trustee
shall join with the Issuer in the execution of any such supplemental
indenture, to make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder, but the Trustee shall not be
obligated to (but may in its discretion) enter into any such supplemental
indenture which adversely affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
<PAGE>
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Issuer and the Trustee without the consent of
the Holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Six) of
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected by such supplemental indenture (all such
series voting as a single class) at the time Outstanding, the Issuer, when
authorized by, or pursuant to a Resolution, and the Trustee may, from time to
time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of
1939 as in force at the date of execution thereof) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights and obligations of the Issuer and the rights of the
Holders of the Securities of all such series; provided, that no such
supplemental indenture shall (a) extend the fixed maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption or
reduce the Overdue Rate thereof or make the principal thereof or interest
thereon payable in any coin or currency other than that provided in the
Security or reduce the amount of the principal of an Original Issue Discount
Security (or a Security that provides that an amount other than the face
amount thereof will or may be payable upon a declaration of acceleration of
the maturity thereof) that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 4.1 or the amount thereof provable in
bankruptcy pursuant to Section 4.2, or impair, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, or alter
adversely or eliminate the right, if any, of a Holder of a Security to convert
the same into Common Stock at the Conversion Price set forth therein or upon
the terms provided in this Indenture, or impair the right to institute suit
for the enforcement of any such payment on or after the maturity thereof (or,
in case of redemption, on or after the Redemption Date), or for the
enforcement of the conversion of any Security that is convertible at the
option of a Holder thereof into Common Stock without the consent of the Holder
of each Security so affected, or (b) reduce the aforesaid percentage of
Securities the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected.
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 Securityholders of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Securityholders of any other series. The preceding sentence shall not,
however, raise any inference as to whether or not a particular series is
affected by any supplemental indenture not referred to in such sentence.
Upon the request of the Issuer, accompanied by a copy of a
Resolution certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid and other documents, if any, required by Section 6.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture adversely affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
<PAGE>
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 7.2, the
Issuer shall mail a notice thereof to the Holders of Securities of each series
affected thereby at their addresses as they shall appear in the Register,
setting forth in general terms the substance of such supplemental indenture.
Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supple-
mental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, du-
ties and immunities under this Indenture of the Trustee, the Issuer and the
Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 7.4 Certain Documents to Be Given to Trustee. The Trustee,
subject to the requirements of the Trust Indenture Act of 1939 and Section
5.1, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article Seven complies with the requirements of this Article Seven.
SECTION 7.5 Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Seven may bear a notation in form
approved by the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken at any such meeting. If the
Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Issuer, authenticated by the Trustee and
delivered in exchange for the Securities of such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the Issuer with or into any other entity or
entities (whether or not affiliated with the Issuer), or successive
consolidations or mergers in which the Issuer or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance or lease of
all or substantially all the property of the Issuer, to any other entity
(whether or not affiliated with the Issuer) authorized to acquire and operate
the same; provided, however, and the Issuer hereby covenants and agrees, that
upon any such consolidation, merger, sale, conveyance or lease, (i) the due
and punctual payment of the principal of and interest, if any, on all of the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the entity (if other than the Issuer) formed by such consolidation, or into
which the Issuer shall have been merged, or by the entity which shall have
acquired or leased such property and (ii) the Issuer or such successor entity,
as the case may be, shall not, immediately after such merger or consolidation,
or such sale, conveyance or lease, be in default in the performance of any
such covenant or condition.
SECTION 8.2 Successor Corporation to Be Substituted. In case of
any consolidation, merger, sale, conveyance or lease referred to in Section
<PAGE>
8.1 and upon the assumption by the successor entity, by supplemental inden-
ture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and interest, if
any, on all of the Securities and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Issuer,
such successor entity shall succeed to and be substituted for the Issuer, with
the same effect as if it had been named herein as the party of the first part.
Such successor entity thereupon may cause to be signed, and may issue either
in its own name or in the name of Newmont Mining Corporation any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
entity instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor entity thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Securities had been
issued at the date of the execution hereof. In the event of any such sale or
conveyance, but not any such lease, the Issuer or any successor entity which
shall theretofore have become such in the manner described in this Article
Eight shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be dissolved and liquidated.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be
Given to Trustee. The Trustee, subject to the requirements of the Trust
Indenture Act of 1939 and Section 5.1, may receive an Opinion of Counsel and
Officers' Certificate as conclusive evidence that any such consolidation,
merger, sale, conveyance or lease and any such assumption complies with the
provisions of this Article Eight.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any particular series Outstanding hereunder
(other than Securities which have been mutilated, defaced, destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.10 or in
lieu of or in substitution for which other Securities shall have been
authenticated and delivered) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for
cancellation all Securities of such series theretofore authenticated (other
than any Securities of such series which shall have been mutilated, defaced,
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.10 or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
cancelled, or (c)(i) all the Securities of such series not theretofore
cancelled or delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year
or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii)
the Issuer shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Issuer in accordance with Section 9.4)
sufficient to pay at maturity or upon redemption all Securities of such series
not theretofore delivered to the Trustee for cancellation (other than any
<PAGE>
Securities of such series which shall have been mutilated, defaced, destroyed,
lost or stolen which have been replaced or paid as provided in Section 2.10 or
in lieu of or in substitution for which other Securities shall have been
authenticated and delivered), including principal and interest, if any, due or
to become due to such date of maturity or the date fixed for redemption, as
the case may be, and if, in any such case, the Issuer shall also pay or cause
to be paid all other sums payable hereunder by the Issuer with respect to
Securities of such series, then this Indenture shall cease to be of further
effect with respect to Securities of such series (except as to (i) rights of
registration of transfer and exchange, and the Issuer's right of optional
redemption, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of Securityholders to receive payments of principal
thereof and interest, if any, thereon, and remaining rights of the
Securityholders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations and immunities of the Trustee hereunder, including its
rights under Section 5.5 and (v) the rights of the Securityholders of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them), and the Trustee, on demand of the
Issuer accompanied by an Officers' Certificate and an Opinion of Counsel and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture with respect
to such series.
SECTION 9.2 Application by Trustee of Funds Deposited for Payment
of Securities. Subject to Section 9.4, all moneys deposited with the Trustee
pursuant to Section 9.1 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular Securities
of such series for the payment or redemption of which such moneys have been
deposited with the Trustee, of all sums due and to become due thereon for
principal and interest, if any.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent, other
than the Trustee, under the provisions of this Indenture with respect to such
series of Securities shall, upon demand of the Issuer, be repaid to it or paid
to the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest, if any, on
any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal or interest, as the case may
be, shall have become due and payable, shall, upon the written request of the
Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of such Security
of such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look
only to the Issuer for any payment which such Holder may be entitled to col-
lect.
SECTION 9.5 Issuer's Option to Effect Defeasance or Covenant
Defeasance. The Issuer may at its option by or pursuant to a Resolution, at
any time, with respect to the Securities of any series, elect to have either
Section 9.6 or Section 9.7 be applied to the Outstanding Securities of such
series upon compliance with the conditions set forth below.
SECTION 9.6 Defeasance and Discharge. Upon the Issuer's exercise
of its option to utilize the provisions of this Section 9.6 and upon
compliance with Section 9.8, the Issuer shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities of
such series on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
<PAGE>
Issuer shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of such series
to receive, solely from the trust fund described in Section 9.8 and as more
fully set forth in such Section, payments in respect of the principal of and
interest on such Securities when such payments are due, (B) the Issuer's
obligations with respect to such Securities under Sections 2.9, 2.10, 2.12,
3.2 and 3.3 and under Article Eleven, (C) the rights, powers, trusts, duties,
and immunities of the Trustee under Sections 2.10, 2.11, 2.12, 4.3, 5.5 and
9.4, and otherwise the duty of the Trustee to authenticate Securities of such
series issued on registration of transfer or exchange and (D) this Article
Nine. Subject to compliance with this Article Nine, the Issuer may exercise
its option under this Section 9.6 notwithstanding the prior exercise of its
option under Section 9.7 with respect to the Securities of such series.
SECTION 9.7 Covenant Defeasance. Upon the Issuer's exercise of its
option to utilize the provisions of this Section 9.7 and upon compliance with
Section 9.8, the Issuer shall be released from its obligations under Sections
3.4 and 3.5 and Section 4.1(d) with respect to the Outstanding Securities of
such series on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of such
series, the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section
with respect to it, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 9.6 or
Section 9.7 to the Outstanding Securities of such series:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 5.7 who shall agree to comply with the provisions
of this Article Nine applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to
pay and discharge, (i) the principal of and each installment of principal
of and interest on the Outstanding Securities of such series on the
stated maturity of such principal or installment of principal or interest
and (ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities. For this purpose, "U.S.
Government Obligations" means securities that are (x) direct obligations
of the United States of America for the payment of which its full faith
and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which,
in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a
<PAGE>
bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government Obligation
or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the
Holder of such 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 Obligation or
the specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(b) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit.
(c) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer.
(d) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Issuer is a party or by
which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.
(f) In the case of an election under Section 9.6, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(g) In the case of an election under Section 9.7, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not occurred.
(h) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
9.6 or the covenant defeasance under Section 9.7 (as the case may be)
have been complied with.
SECTION 9.9 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
Section 9.4, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee --
collectively, for purposes of this Section 9.9, the "Trustee") pursuant to
Section 9.8 in respect of the Outstanding Securities of such series shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or through
any paying agent (including the Issuer acting as its own paying agent) as the
<PAGE>
Trustee may determine, to the Persons entitled thereto, of all sums due and to
become due thereon in respect of principal and interest, but such money need
not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 9.8 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the Issuer's
written request any money or U.S. Government Obligations held by it as
provided in Section 9.8 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 10.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity and to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.4 for Securities of such series.
SECTION 10.2 Notice of Redemption; Selection of Securities. In
case the Issuer shall desire to exercise any right to redeem all or any part
of the Securities of any series in accordance with their terms, the Issuer
shall fix a date for redemption and shall notify the Trustee in writing, at
least 45 days before such redemption date. The Issuer, or at the request and
at the expense of the Issuer, the Trustee, shall mail a notice of such
redemption, at least 30 days and not more than 60 days prior to the date fixed
for redemption, to the Holders of Securities of such series so to be redeemed
in whole or in part at their last addresses as they shall appear in the
Register. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice, to the Holder of any Security of a series designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the CUSIP
number of the Securities, if any, the date fixed for redemption, the
redemption price, the Conversion Price, the place or places of conversion and
of payment, that if Securities of the series being redeemed are convertible at
the option of the Holders thereof, unless otherwise provided pursuant to
Section 2.4 for Securities of such series, Securities called for redemption
may be converted at any time before the close of business three Business Days
prior to the date fixed for redemption and if not converted prior to the close
of business on such date, the right of conversion will be lost, that Holders
who want to convert Securities must satisfy the requirements set forth in the
terms thereof, that payment will be made upon presentation and surrender of
such Securities, that any interest accrued to the date fixed for redemption
will be paid as specified in such notice and that on and after said date any
interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all of the Outstanding Securities of a series are to be
redeemed, the notice of redemption shall specify the number or numbers or
distinguishing symbol or symbols of the Securities to be redeemed. In case
any Security of a series is to be redeemed in part only the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
<PAGE>
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, segregate and hold in trust as required by the Trust Indenture Act of
1939) an amount of money (in the currency or units of currencies or composite
currency in which the Securities so called for redemption are denominated or
an appropriate equivalent thereof) sufficient to redeem on the redemption date
all the Securities of such series or portions thereof so called for redemption
at the appropriate redemption price, together with accrued interest to the
date fixed for redemption. If less than all the Outstanding Securities of a
series are to be redeemed (or less than the full principal amount of each
Security in such series is to be redeemed), the Issuer will deliver to the
Trustee at least 60 days prior to the date fixed for redemption (or such
shorter period if acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of Securities to be redeemed and, if the
Trustee is not acting as the repository of the Register for such series, a
current list of all Outstanding Securities of such series.
If less than all the Outstanding Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part; however, if less than all the Securities of any series with differing
issue dates, interest rates and stated maturities are to be redeemed, the
Issuer in its sole discretion shall select the particular Securities to be
redeemed and shall notify the Trustee in writing thereof at least 45 days
prior to the relevant redemption date. Except as otherwise specified for
Securities of a particular series pursuant to Section 2.4, Securities may be
redeemed in part in amounts equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series 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 of any
series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which
has been or is to be redeemed.
SECTION 10.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as provided in Section 10.2, the
Securities or portions of Securities specified in such notice shall become due
and payable on the date and at the place or places stated in such notice at
the applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Issuer shall
default in the payment of such Securities or portions thereof at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue and, except as provided in Sections 5.4 and 9.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any
benefit or security under this Indenture, and the Holders of such Securities
shall have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable redemption
price, together with interest accrued thereon to the date fixed for
redemption; provided, that if the date fixed for redemption is an interest
payment date, the interest due on that date shall be payable to the Holders of
such Securities registered as such on the relevant record date according to
their terms.
<PAGE>
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof so to be redeemed
shall, until paid or duly provided for, bear interest from the date fixed for
redemption at the Overdue Rate applicable to such series.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the Holder thereof, at the expense of the
Issuer, a new Security or Securities of such series, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Security so presented.
SECTION 10.4 Conversion Arrangement on Call for Redemption. If, in
connection with any redemption of Securities of any series with respect to
which the Holders have the right to convert such Security into Common Stock if
any, the Holders thereof do not elect to convert such Securities, the Issuer
may arrange for the purchase and conversion of such Securities by an agreement
with one or more investment banking firms or other purchasers to purchase such
Securities by paying to the Trustee in trust for the Holders, not later than
the close of business three Business Days prior to the date fixed for
redemption, an amount not less than the applicable redemption price, together
with interest accrued to the date fixed for redemption, of such Securities.
Notwithstanding anything to the contrary contained in this Article Ten, the
obligation of the Issuer to pay the redemption price of such Securities,
together with interest accrued to the date fixed for redemption, shall be
deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is made, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Issuer, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article Eleven) surrendered by such purchasers for conversion,
all as of immediately prior to the close of business on the date fixed for
redemption, subject to payment by the purchasers as specified above. The
Trustee shall hold and dispose of any such amount paid to it in the same
manner as it would moneys deposited with it by the Issuer for the redemption
of Securities. Without the Trustee's prior written consent, no arrangement
between the Issuer and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Issuer agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out or in connection with any
such arrangement for the purchase and conversion of any Securities between the
Issuer and such purchasers to which the Trustee has not consented in writing,
including the costs and expenses incurred by the Trustee in the defense of any
claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations
under this Indenture.
SECTION 10.5 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and
certificate number or other distinguishing symbol in a written statement
signed by an authorized officer of the Issuer and delivered to the Trustee at
least 10 days prior to the date on which Securities are to be selected for
redemption as being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) the Issuer or (b) an entity specifically identi-
fied in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
SECTION 10.6 Mandatory and Optional Sinking Funds. 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". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
<PAGE>
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.11, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
which have been converted or which have been redeemed by the Issuer through
any optional redemption provision contained in the terms of Securities of such
series. Securities so delivered or credited shall be received or credited by
the Trustee at the sinking fund redemption price specified in such Securities,
and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
On or before the sixtieth day next preceding each sinking fund
payment date for any series of Securities, the Issuer will deliver to the
Trustee a certificate of the Issuer (which need not contain the statements
required by the Trust Indenture Act of 1939) signed by an officer of the
Issuer who is one of the officers authorized to sign an Officers' Certificate
(a) specifying the portion, if any, of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion, if any, to be satisfied by
credit of Securities of such series, (b) stating that none of such Securities
has theretofore been so credited, (c) stating that no Event of Default with
respect to such series has occurred (which has not been waived or cured) and
is continuing and (d) stating whether or not the Issuer intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.11 to the Trustee
with such certificate. Such certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become obligated to make all the cash
payments or payments therein referred to, if any (which cash may be deposited
with the Trustee or with one or more paying agents or, if the Issuer is acting
as its own paying agent, segregated and held in trust as required by the Trust
Indenture Act of 1939), on or before the next succeeding sinking fund payment
date. Failure of the Issuer, on or before any such sixtieth day, to deliver
such certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $100,000 or, if payments on Securities of such series are to be made in
a currency other than Dollars or in units or composites of two more
currencies, the equivalent thereof (based upon the Market Exchange Rate on the
sixtieth day preceding the relevant sinking fund payment date or if the Market
Exchange Rate is not available for such date, the immediately preceding date
for which the Market Exchange Rate is available) in the relevant currency or
unit or composite currency (or such other amount as is specified for a
particular series of Securities pursuant to Section 2.4), or a lesser sum if
the Issuer shall so request, with respect to the Securities of any particular
series, such cash shall be applied by the Trustee (or by the Issuer if the
Issuer is acting as its own paying agent) on the sinking fund payment date on
which such payment is made (or, if such payment is made before a sinking fund
payment date, on the next sinking fund payment date following the date of such
<PAGE>
payment) to the redemption of such Securities at the sinking fund redemption
price specified in such Securities for operation of the sinking fund together
with accrued interest, if any, to the date fixed for redemption. If such
amount shall be $100,000 or, if payments on Securities of such series are to
be made in a currency other than Dollars or in units or composites of two more
currencies, the equivalent thereof (based upon the Market Exchange Rate on the
sixtieth day preceding the relevant sinking fund payment date or if the Market
Exchange Rate is not available for such date, the immediately preceding date
for which the Market Exchange Rate is available) in the relevant currency or
unit or composite currency (or such other amount as is specified for the
particular series pursuant to Section 2.4), or less and the Issuer makes no
such request then it shall be carried over until a sum in excess of $100,000,
or the equivalent thereof in the relevant currency or unit or composite
currency, is available.
The Trustee shall select, in the manner provided in Section 10.2,
for redemption on such sinking fund payment date, Securities of such series
with respect to which cash payment of the applicable sinking fund redemption
price will be made and shall (if requested in writing by the Issuer) inform
the Issuer of the serial numbers or other distinguishing symbols of the
Securities of such series (or portions thereof) so selected. If the Trustee
shall be required to select Securities of any series for the sinking fund and
is not acting as repository of the Register for such series, at least 60 days
prior to the sinking fund payment date the Issuer shall furnish to the Trustee
a current list of all Outstanding Securities of such series. Securities of
any series which are (a) owned by the Issuer or an entity actually known by
the Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Register,
and not known to the Trustee to have been pledged or hypothecated by the
Issuer or any such entity or (b) identified in an Officers' Certificate at
least 60 days prior to the sinking fund payment date as being beneficially
owned by, and not pledged or hypothecated by, the Issuer or an entity directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer, shall be excluded from Securities of such series
eligible for selection for redemption. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so notify the Trustee in
writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 10.2, except that the
notice of redemption shall also state that the Securities are being redeemed
by operation of the sinking fund (and with the effect provided in Section
10.3) for the redemption of Securities of such series which, if applicable, is
in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated
by the Trustee (or by the Issuer if the Issuer is acting as its own paying
agent) to the redemption of Securities of such series shall be added to the
next cash sinking fund payment received by the Trustee (or if the Issuer is
acting as its own paying agent, segregated and held in trust as required by
the Trust Indenture Act of 1939) for such series and, together with such
payment (or such amount so segregated), shall be applied in accordance with
the provisions of this Section 10.6. Any and all sinking fund moneys held by
the Trustee (or if the Issuer is acting as its own paying agent, segregated
and held in trust as required by the Trust Indenture Act of 1939) on the
stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied by the
Trustee (or by the Issuer if the Issuer is acting as its own paying agent),
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of, and interest on, the Securities of such series at
maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash (or if the Issuer is acting as its own paying agent will
segregate and hold in trust as required by the Trust Indenture Act of 1939) or
shall otherwise provide for the payment of all interest accrued to the date
<PAGE>
fixed for redemption on Securities (or portions thereof) to be redeemed on
such sinking fund payment date.
Neither the Issuer nor the Trustee shall redeem or cause to be
redeemed any Securities of a series with sinking fund moneys or mail any
notice of redemption of Securities for such series by operation of the sinking
fund during the continuance of a default in payment of interest, if any, on
such Securities or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph, with respect to such Securities)
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee (or the Issuer if the Issuer is acting
as its own paying agent) shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer (or the Issuer shall have
segregated) a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such default
or Event of Default shall occur, and any moneys thereafter paid into the
sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Four and held for the
payment of all such Securities. Notwithstanding anything in the foregoing to
the contrary, in case such default or Event of Default shall have been waived
as provided in Section 4.9 or the default or Event of Default cured on or
before the sixtieth day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section 10.6 to the redemption of such
Securities.
ARTICLE ELEVEN
CONVERSION OF SECURITIES
SECTION 11.1 Conversion of Securities. In connection with
Securities of any series convertible at the option of the Holders thereof,
each such Security (or any portion thereof which is, unless otherwise
specified as contemplated by Section 2.4 for Securities of any series, $1,000
or an integral multiple thereof) shall be convertible into shares of Common
Stock as specified pursuant to Section 2.4 for Securities of such series, in
accordance with its terms and (except as otherwise specified pursuant to
Section 2.4 for Securities of such series) in accordance with this Article
Eleven at any time prior to the maturity of the Securities of such series or
in case such Security shall have been called for redemption, then in respect
of such Security until and including, but not after (unless the Company shall
default in payment due upon the redemption thereof) the close of business
three Business Days prior to the date fixed for redemption, unless otherwise
specified as contemplated by Section 2.4 for Securities of such series.
The initial Conversion Price at which a Security of any series is
convertible shall be set forth in or established pursuant to a Resolution or
supplemental indenture contemplated by Section 2.4.
Any such Security shall be so converted upon surrender to the
Trustee or the Conversion Agent for surrender to the Issuer in accordance with
the instructions on file with the Trustee and the Conversion Agent, at any
time during usual business hours at the office or agency to be maintained by
the Company in accordance with the provisions of Section 3.2, accompanied by a
written notice of election to convert as provided in Section 11.2 and, if so
required by the Issuer, by a written instrument or instruments of transfer in
form satisfactory to the Issuer and the Conversion Agent duly executed by the
Holder or his attorney duly authorized in writing. The Company covenants to
effect such conversion by procuring the issuance of Common Stock and payment
of cash in lieu of fractional shares in exchange for and in consideration of
delivery to it of the Securities. For convenience, the conversion of
principal of any Security or Securities pursuant to this Article Eleven is
hereinafter sometimes referred to as the conversion of such Security or
Securities. All Securities surrendered for conversion shall, if surrendered
to the Issuer or any Conversion Agent, be delivered to the Trustee for
<PAGE>
cancellation and cancelled by it, as provided in Section 2.11 (except as
otherwise provided therein). Any Security surrendered for conversion shall
not thereafter be convertible.
SECTION 11.2 Issuance of Shares of Stock on Conversion. As
promptly as practicable after the surrender as herein provided of any Security
or Securities for conversion, the Issuer shall deliver or cause to be
delivered at its office or agency to or upon the written order of the Holder
of the Security or Securities so surrendered a certificate or certificates
representing the number of duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock (the shares being referred to in this
Article Eleven as the "Conversion Shares") into which such Security or
Securities may be converted in accordance with the provisions of this Article
Eleven. Prior to delivery of such certificate or certificates, the Issuer
shall require a written notice, which shall be substantially in the Form of
Election to Convert as provided for in the Security, to be delivered to its
office or agency from the Holder of the Security or Securities so surrendered
stating that the Holder irrevocably elects to convert such Security or
Securities. Such notice shall also state the name or names (with address or
addresses) in which said certificate or certificates are to be issued. Such
conversion shall be deemed to have been made at the close of business on the
date that such Security or Securities shall have been surrendered for
conversion and such notice shall have been received by the Issuer, and the
rights of the Holder of such Security as a Holder shall cease at such time.
The Person or Persons entitled to receive the Conversion Shares upon
conversion of such Security or Securities shall be treated for all purposes as
having become the record holder or holders of such Conversion Shares at such
time and such conversion shall be at the Conversion Price for such series of
Securities in effect at such time; provided, however, that no such surrender
on any date when the stock transfer books of the Issuer shall be closed shall
be effective to constitute the Person or Persons entitled to receive the
Conversion Shares upon such conversion as the record holder or holders of such
Conversion Shares on such date, but such surrender shall be effective to
constitute the Person or Persons entitled to receive such Conversion Shares as
the record holder or holders thereof for all purposes at the close of business
on the next succeeding day on which such stock transfer books are open; such
conversion shall be at the Conversion Price in effect on the date that such
Security or Securities shall have been surrendered for conversion, as if the
stock transfer books of the Issuer had not been closed.
Upon conversion of any Security which is converted in part only, the
Issuer shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the holder thereof, at the expense of the
Issuer, a new Security or Security of authorized denominations in a principal
amount equal to the unconverted portion of such Security.
If the last day of the exercise of the conversion right shall not be
a Business Day, then such conversion right may be exercised on the next
succeeding Business Day.
SECTION 11.3 No Adjustment for Interest or Dividends. No payment
or adjustment in respect of interest on the Securities or dividends on the
Conversion Shares shall be made upon the conversion of any Security or
Securities; provided, however, that if a Security or Securities or any portion
thereof shall be converted subsequent to any regular record date and on or
prior to the next succeeding interest payment date, the interest falling due
on such interest payment date shall be payable on such interest payment date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name such
Security is registered at the close of business on such regular record date
and Securities surrendered for conversion during the period from the close of
business on any regular record date to the opening of business on the
corresponding interest payment date must be accompanied by payment of any
amount equal to the interest payable on such interest payment date.
<PAGE>
SECTION 11.4 Adjustment of Conversion Price. Except as may
otherwise be established pursuant to Section 2.4 with respect to a particular
series of Securities, the Conversion Price in effect at any time for any
series of Securities that is convertible into Common Stock shall be subject to
adjustment as follows:
(a) If the Issuer shall hereafter pay a dividend or make a
distribution on its Common Stock in shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of stockholders entitled
to receive such dividend or other distribution shall be reduced by
multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination and the denominator
shall be the sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day
following the date fixed for such determination. The Issuer will not pay
any dividend or make any distribution on shares of Common Stock held in
the treasury of the Issuer.
(b) If the Issuer shall hereafter issue rights or warrants to all
holders of its outstanding shares of Common Stock entitling them (for a
period expiring within 45 days after the date fixed for determination of
stockholders entitled to receive such rights or warrants) to subscribe
for or purchase shares of Common Stock at a price per share less than the
Current Market Price on the date fixed for determination of stockholders
entitled to receive such rights or warrants (other than pursuant to an
automatic dividend reinvestment plan of the Issuer or any substantially
similar plan), the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the date fixed for determination of
stockholders entitled to receive such rights or warrants by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for determination
of stockholders entitled to receive such rights or warrants plus the
number of shares which the aggregate offering price of the total number
of shares so offered for subscription or purchase would purchase at such
Current Market Price, and of which the denominator shall be the number of
shares of Common Stock outstanding on the date fixed for determination of
stockholders entitled to receive such rights or warrants plus the number
of additional shares of Common Stock offered for subscription or
purchase. Such adjustment shall become effective immediately after the
opening of business on the date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares
of Common Stock are not delivered after the expiration of such rights or
warrants, the Conversion Price shall be readjusted to the Conversion
Price which would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made on the basis of delivery of
only the number of shares of Common Stock actually delivered. In the
event that such rights or warrants are not so issued, the Conversion
Price shall again be adjusted to be the Conversion Price which would then
be in effect if such date fixed for the determination of stockholders
entitled to receive such rights or warrants had not been fixed.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and
conversely, in case outstanding shares of Common Stock shall be combined
into a smaller number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day upon which
such combination becomes effective shall be proportionately increased,
such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day
upon which such subdivision or combination becomes effective.
<PAGE>
(d) In case the Issuer shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness, shares
of any class of capital stock (other than a dividend or distribution to
which paragraph (a) of this Section 11.4 applies), assets (including
securities, but excluding cash dividends paid out of funds legally
available therefor) or rights or warrants to subscribe or purchase any of
its securities (excluding (1) any rights or warrants referred to in
paragraph (b) of this Section 11.4, (2) rights (collectively, the
"Rights") issued under the Rights Agreement dated as of September 23,
1987, as amended, or the Rights Agreement dated as of August 30, 1990, as
amended, in each case between the Issuer and Chemical Bank, as Rights
Agent, (3) any dividend or distribution in connection with the liqui-
dation, dissolution or winding up of the Issuer, whether voluntary or
involuntary, or (4) any dividends or distributions referred to in
paragraph (a) of this Section 11.4) (any of the foregoing evidences of
indebtedness, shares, assets, rights or warrants being hereinafter in
this paragraph called the "Other Securities"), then, in each such case,
unless the Issuer elects to reserve such Other Securities for distribu-
tion to the holders of the Securities upon the conversion of the
Securities so that any such holder converting Securities will receive
upon such conversion, in addition to the shares of the Common Stock to
which such holder is entitled, the amount and kind of such Other
Securities which such holder would have received if such holder had,
immediately prior to the record date for the determination of
stockholders entitled to receive such distribution of the Other Securi-
ties, converted its Securities into Common Stock, the Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the close
of business on the record date for the making of such distribution by a
fraction of which the numerator shall be the Current Market Price of the
Common Stock on such record date less the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive) on such record date, of the portion of the Other Securities
so distributed applicable to one share of Common Stock and the
denominator shall be such Current Market Price per share of the Common
Stock, such reduction to become effective immediately prior to the
opening of business on the day following such record date. In the event
that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then
be in effect if such dividend or distribution had not occurred. If the
Board of Directors (or, to the extent permitted by applicable law, a duly
authorized committee thereof) determines the fair market value of any
distribution for purposes of this paragraph by reference to the actual or
when issued trading market for any securities comprising such distribu-
tion, it must in doing so consider the prices in such market over the
same period used in computing the Current Market Price of the Common
Stock.
(e) The reclassification of Common Stock into securities including
other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 11.6 applies) shall be deemed to
involve (i) a distribution of such securities other than Common Stock to
all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such distribution" and
"the date fixed for such determination" within the meaning of paragraph
(d) of this Section 11.4), and (ii) a subdivision or combination, as the
case may be, of the number of shares of Common Stock outstanding immedi-
ately prior to such reclassification into the number of shares of Common
Stock outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such combination
becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of para-
graph (c) of this Section 11.4).
<PAGE>
(f) All calculations under this Section 11.4 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may
be.
(g) No adjustment in the Conversion Price shall be required unless
such adjustment would require a change of at least 1% in such price;
provided, however, that any adjustments which by reason of this paragraph
are not required to be made shall be carried forward and taken into
account in any subsequent adjustment.
(h) Anything in this Section 11.4 to the contrary notwithstanding,
the Issuer from time to time may, to the extent permitted by law, reduce
the Conversion Price by any amount for any period of at least 20 days, if
the Board of Directors has made a determination that such reduction would
be in the best interests of the Issuer, which determination shall be
conclusive. The Issuer may, at its option, make such reduction in the
Conversion Price, in addition to any reduction permitted by the immedi-
ately preceding sentence, as the Board of Directors deems advisable to
avoid or diminish any income tax to holders of Common Stock resulting
from any dividend or distribution of stock (or rights to acquire stock)
or from any event treated as such for income tax purposes. Whenever the
Conversion Price is reduced pursuant to this paragraph, the Issuer shall
mail to holders of record of the Securities of any series that is
convertible into Common Stock a notice of the reduction at least 15 days
prior to the date the reduced Conversion Price takes effect, and such
notice shall state the reduced Conversion Price and the period it will be
in effect.
(i) No adjustment in the Conversion Price shall be required for a
change in the par value of the Common Stock.
(j) In the event that at any time as a result of an adjustment made
pursuant to paragraph (d) of this Section 11.4, the holder of any
Securities thereafter surrendered for conversion shall become entitled to
receive any shares of the Issuer other than shares of Common Stock,
thereafter the Conversion Price allocable to such other shares so
receivable upon conversion of any Securities shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common Stock
contained in this Section 11.4 as determined by the Board of Directors
(whose determination shall be conclusive).
(k) In any case in which this Section 11.4 provides that an
adjustment to the Conversion Price shall become effective immediately
after a record date for an event, the Issuer may defer until the
occurrence of such event (y) issuing to the holder of any Security
converted after such record date and before the occurrence of such event
the additional shares of Common Stock issuable upon such conversion by
reason of the adjustment required by such event over and above the Common
Stock issuable upon such conversion before giving effect to such
adjustment and (z) paying to such holder any amount in cash in lieu of
any fractional share of Common Stock pursuant to Section 11.5.
(l) Whenever the Conversion Price of any series is adjusted, as
herein provided, the Issuer shall promptly file with the Trustee and with
the Conversion Agent a certificate of the Treasurer of the Issuer setting
forth the Conversion Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment and a computation
thereof. Such certificate shall be conclusive evidence of the
correctness of such adjustment. Neither the Trustee nor any Conversion
Agent shall be under any duty or responsibility with respect to any such
certificate or any facts or computations set forth therein, except to
exhibit said certificate from time to time to any Holder of Securities
desiring to inspect the same. The Trustee, at the expense of the Issuer,
shall cause notice setting forth the Conversion Price to be mailed,
<PAGE>
first-class postage prepaid, to each Holder of Securities of such series
at the address of such Holder as it appears in the Register.
SECTION 11.5 No Fractional Shares To Be Issued. No fractional
Conversion Shares shall be issued upon conversions of Securities. If more
than one Security of any series shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities of such series so surrendered. Instead of
a fraction of a Conversion Share which would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Issuer shall pay a cash adjustment in respect of such fraction of a share in
an amount equal to the same fractional interest of the Closing Price of Common
Stock on the Trading Day next preceding the day of conversion.
SECTION 11.6 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Conveyance. In the event that the Issuer shall be a party to
(i) any consolidation of the Issuer with, or merger of the Issuer into, any
other person, any merger of another person into the Issuer (other than a
consolidation or merger which does not result in a conversion, exchange or
cancellation of outstanding shares of Common Stock of the Issuer) or (ii) any
sale or transfer of all or substantially all of the assets of the Issuer, the
corporation or person formed by such consolidation or resulting from such
merger or which shall have acquired such assets or which acquired the Issuer's
shares, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
Outstanding shall have the right thereafter to convert such Security into,
subject to funds being legally available for such purpose under applicable law
at the time of such conversion, the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by
a holder of the number of shares of Common Stock into which such Security
might have been converted immediately prior to such consolidation, merger,
sale or transfer. Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Eleven. Neither the Trustee nor any Conversion
Agent shall be under any responsibility to determine the correctness of any
provision contained in any such supplemental indenture relating either to the
kind or amount of shares of stock or other securities or property receivable
by Holders of Securities upon the conversion of their Securities after any
such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect thereto and, subject to the provisions of Section 5.1, may accept
as conclusive evidence of the correctness of any such provisions. The above
provisions of this Section 11.6 shall similarly apply to successive
consolidations, mergers, sales or transfers.
SECTION 11.7 Notice to Holders of Securities Prior to Taking
Certain Types of Action. In case:
(a) the Issuer shall authorize the distribution to all holders of
its Common Stock of evidences of its indebtedness or assets (other than
cash dividends or other distributions paid out of funds legally available
therefor and the dividends payable in stock for which adjustment is made
pursuant to Section 11.4); or
(b) the Issuer shall authorize the granting to all holders of its
Common Stock of rights or warrants to subscribe for or purchase any
shares of its capital stock of any class or of any other rights (other
than the Rights); or
(c) of any consolidation or merger to which the Issuer is a party
and for which approval of any stockholders of the Issuer is required, or
of the sale or conveyance of all or substantially all of the Issuer's
assets or property to another company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Issuer;
<PAGE>
then the Issuer shall cause to be filed with the Trustee and the Conversion
Agent, at least 15 days prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for
the purpose of such distribution, rights or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be
entitled to such distribution, rights or warrants are to be determined, or
(ii) the date on which such consolidation, merger, sale, conveyance, dissolu-
tion, liquidation or winding up is expected to become effective, and the date
as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up. The failure to give the notice required by this
Section 11.7 or any defect therein shall not affect the legality or validity
of the proceedings described in paragraphs (a), (b), (c) or (d) of this
Section 11.7. Such notice, at the expense of the Issuer, shall be mailed by
the Trustee, first-class postage prepaid, to each Holder of Securities that
are convertible into Common Stock of the Issuer at the address of such Holder
as it appears in the Register.
SECTION 11.8 Covenant to Reserve Shares for Issuance on Conversion
of Securities. The Issuer covenants that it will at all times reserve and
keep available, in the case of Securities convertible into Common Stock, out
of the aggregate of its authorized but unissued shares of Common Stock and its
issued shares of Common Stock held in its treasury, free from pre-emptive
rights, solely for the purpose of issue upon conversion of Securities as
herein provided, such number of shares of Common Stock as shall then be
issuable upon the conversion of all Outstanding Securities. For the purpose
of this Section, the full number of shares of Common Stock issuable upon the
conversion of all Outstanding Securities shall be computed as if at the time
of such computation all Outstanding Securities of a series were held by a
single holder. The Issuer shall from time to time, in accordance with the
laws of the State of Delaware, increase the authorized amount of its Common
Stock if at any time the aggregate of the authorized amount of its Common
Stock remaining unissued and its issued shares of Common Stock held in its
treasury (other than any such shares reserved for issuance in any other
connection) shall not be sufficient to permit the conversion of all Securities
at the time outstanding. The Issuer covenants that all shares of Common Stock
which shall be so issuable shall, when issued, be duly and validly issued
shares of its authorized Common Stock, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of
the Issuer will be duly credited.
SECTION 11.9 Compliance with Governmental Requirements. The Issuer
covenants that if any shares of Common Stock required to be reserved for
purposes of conversion of Securities hereunder require registration with or
approval of any governmental authority under any United States Federal or
state law, or any United States national securities exchange, before such
shares may be issued upon conversion, the Issuer will use its best efforts to
cause such shares to be duly registered or approved, as the case may be.
SECTION 11.10 Payment of Taxes upon Certificates for Shares Issued
upon Conversion. The issuance of certificates for shares of Common Stock upon
the conversion of Securities shall be made without charge to the converting
Holders for any tax in respect of the issuance of such certificates, and such
certificates shall be issued in the respective names of, or in such names as
may be directed by, the Holders of the Securities converted; provided,
however, that the Issuer shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of
any such certificate in a name other than that of the Holder of the Security
converted, and neither the Issuer nor the Conversion Agent shall be required
to issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Issuer the amount of
such tax or shall have established to the satisfaction of the Issuer that such
tax has been paid.
<PAGE>
SECTION 11.11 Trustee's Duties with Respect to Conversion
Provisions. The Trustee, subject to the provisions of Section 5.1, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder to determine whether any facts exist which may require any ad-
justment of the conversion rate, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee nor any Conversion Agent shall be accountable with
respect to the registration under securities laws, listing, validity or value
(or the kind or amount) of any shares of Conversion Stock, or of any other
securities or property, which may at any time be issued or delivered upon the
conversion of any Security; and neither the Trustee nor any Conversion Agent
makes any representation with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Issuer to make
any cash payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any
Security for the purpose of conversion; and the Trustee, subject to the
provisions of Section 5.1, and any Conversion Agent shall not be responsible
for any failure of the Issuer to comply with any of the covenants of the
Issuer contained in this Article Eleven. Each Conversion Agent (other than
the Issuer or an affiliate of the Issuer) shall have the same protection under
this Article Eleven as the Trustee.
ARTICLE TWELVE
MISCELLANEOUS PROVISIONS
SECTION 12.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the
Holders thereof and as part of the consideration for the issue of the
Securities.
SECTION 12.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any Person, other
than the parties hereto and their successors and assigns and the Holders of
the Securities, any legal or equitable right, remedy or claim under this
Indenture or under any covenant, condition or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities.
SECTION 12.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by the Issuer shall bind its successors and assigns, whether or not
so expressed.
SECTION 12.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail, in a post office letter box
(except as otherwise specifically provided herein) addressed (until another
address of the Issuer is furnished by the Issuer to the Trustee) to Newmont
Mining Corporation, 1700 Lincoln Street, Denver, Colorado 80203, Attention:
Treasurer. Any notice, direction, request or demand by the Issuer or any
Securityholder to or upon the Trustee shall be deemed to have been suffi-
<PAGE>
ciently given or made, for all purposes, if given or made in writing at its
Corporate Trust Office.
Where this Indenture provides for notice to Securityholders, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Securityholder entitled thereto, at his last address as it appears in the
Register. In any case where notice to Securityholders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Securityholder shall affect the sufficiency of such
notice with respect to other Securityholders. 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 Secur-
ityholders 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. Notwithstanding anything to the contrary elsewhere in this Indenture
as to the giving of notice, any other form of written notice is sufficient, if
received.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then notwithstanding anything to the contrary
elsewhere in this Indenture as to the giving of notice, any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 12.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
Person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
Person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with and (d) a statement as to whether or not,
in the opinion of such Person, such condition or covenant has been complied
with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters or information which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous.
<PAGE>
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as
the case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 12.6 Official Acts by Successor Entity. Any act or
proceeding by any provision of this Indenture authorized or required to be
done or performed by any board, committee or officer of the Issuer shall and
may be done and performed with like force and effect by the like board, com-
mittee or officer of any entity that shall at the time be the lawful sole
successor of the Issuer.
SECTION 12.7 Payments Due on Saturdays, Sundays and Legal Holidays.
Except as may be provided pursuant to Section 2.4 with respect to any series
of tranche, if the date of maturity of interest on or principal of the Securi-
ties of any series or the date fixed for redemption or repayment of any such
Security shall not be a Business Day, then payment of such interest, if any,
or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date
of maturity or the date fixed for redemption or repayment, and no interest
shall accrue for the period from and after such date.
SECTION 12.8 NEW YORK LAW TO GOVERN. THIS INDENTURE AND EACH
SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW
YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SUCH STATE, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT AS MAY
OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS OF LAW.
SECTION 12.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 12.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience of reference only, are
not to be considered a part hereof and shall not affect the construction
hereof.
SECTION 12.11 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act of 1939 that is required under such Act to be a part of and govern this
Indenture, the latter provisions shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of
1939 that may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may
be.
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 .
NEWMONT MINING CORPORATION
By
Name:
Title:
[CORPORATE SEAL]
<PAGE>
Attest:
By
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By
Name:
Title:
[CORPORATE SEAL]
Attest:
By
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of , 1994, before me personally came
, to me personally known, who, being by me duly sworn, did depose
and say that he resides at ; that he is a
of The Bank of New York, one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
Notary Public
STATE OF COLORADO )
) ss.:
COUNTY OF )
On this day of , 1994, before me personally came
, to me personally known, who, being by me duly sworn, did depose
and say that he resides at ; that he
is of Newmont Mining Corporation, one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
<PAGE>
Notary Public
NEWMONT MINING CORPORATION
AND
THE BANK OF NEW YORK,
AS TRUSTEE
INDENTURE
CONVERTIBLE SUBORDINATED DEBT INDENTURE
Dated as of
Reference is made to the following provisions of the Trust Indenture
Act of 1939, as amended, which establish certain duties and responsibilities
of the Issuer and the Trustee which are not set forth in this Indenture:
<TABLE>
<CAPTION>
Section Subject Section Subject
<S> <C> <C> <C>
310(b) Disqualification of 315(c) Duties of claims
Trustee for conflicting Trustee in
Securityholders case of default
311 Preferential collection 315(d) Provisions
of Trustee as relating to
creditor of Issuer responsibility of
Trustee
312(a) Periodic filing of 315(e) Assessment of
information by costs against
Issuer with Trustee litigating
Securityholders in
certain cir-
cumstances
312(b) Access of Security- 316(a) Directions to
holders to information and waivers
by Securityholders
in certain cir-
cumstances
313(b) Additional reports of 316(b) Prohibition or
Trustee to Security- impairment of
holders right of Security-
holders to payment
314(c) Evidence of compliance 316(c) Right of Issuer
<PAGE>
with conditions to set record
precedent date for certain
purposes
315(a) Duties of Trustee prior 317(a) Special powers of
to default Trustee
315(b) Notice of default 318(a) Provisions of Act
from Trustee to to control in case
Securityholders of conflict
</TABLE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE ONE DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.1 Certain Terms Defined . . . . . . . . . . . . . . . . . . . . . . . 2
"Attributable Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . 2
"Board of Directors" . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Business Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Closing Price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Commission" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Common Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
"Consolidated Net Tangible Assets" . . . . . . . . . . . . . . . . . . 3
"Conversion Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Conversion Price" . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Corporate Trust Office" . . . . . . . . . . . . . . . . . . . . . . . 4
"covenant defeasance" and "defeasance" . . . . . . . . . . . . . . . . 4
"Current Market Price" . . . . . . . . . . . . . . . . . . . . . . . . 4
"Depositary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
"Depositary Shares" . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Dollar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Funded Debt" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Global Security" . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Holder", "Holder of Securities", "Securityholder" . . . . . . . . . . 5
"Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Indenture" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
"Interest" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Issuer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Market Exchange Rate" . . . . . . . . . . . . . . . . . . . . . . . . 6
"New York Location" . . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Officers' Certificate" . . . . . . . . . . . . . . . . . . . . . . . . 6
"Opinion of Counsel" . . . . . . . . . . . . . . . . . . . . . . . . . 6
"original issue date" . . . . . . . . . . . . . . . . . . . . . . . . . 6
"Original Issue Discount Security" . . . . . . . . . . . . . . . . . . 7
"Outstanding" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Overdue Rate" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
"Person" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Preferred Stock" . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Preferred Stock Depositary" . . . . . . . . . . . . . . . . . . . . . 8
"Principal" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Principal Property" . . . . . . . . . . . . . . . . . . . . . . . . . 8
<PAGE>
"Register" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Representative" . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
"Resolution" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Responsible Officer" . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Restricted Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . 9
"Security" or "Securities" . . . . . . . . . . . . . . . . . . . . . . 9
"Security registrar" . . . . . . . . . . . . . . . . . . . . . . . . . 9
"Senior Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . 9
"series" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Subordinated Indebtedness" . . . . . . . . . . . . . . . . . . . . . . 10
"Subsidiary" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
"Trading Day" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"tranche" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Trustee" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Trust Indenture Act of 1939" . . . . . . . . . . . . . . . . . . . . . 11
"U.S. Government Obligations" . . . . . . . . . . . . . . . . . . . . . 11
"vice president" . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
"Yield to Maturity" . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE TWO SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . 12
SECTION 2.2 Form of Face of Security . . . . . . . . . . . . . . . 12
SECTION 2.3 Forms of Reverse of Security, Trustee's Certificate
of Authentication and Election to Convert . . . . . 15
SECTION 2.4 Amount Unlimited; Issuable in Series . . . . . . . . . 23
SECTION 2.5 Authentication and Delivery of Securities . . . . . . 26
SECTION 2.6 Execution of Securities . . . . . . . . . . . . . . . 28
SECTION 2.7 Certificate of Authentication . . . . . . . . . . . . 29
SECTION 2.8 Denomination and Date of Securities; Payments of
Interest . . . . . . . . . . . . . . . . . . . . . 29
SECTION 2.9 Registration, Transfer and Exchange . . . . . . . . . 30
SECTION 2.10 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . . . . . . 34
SECTION 2.11 Cancellation of Securities Paid, etc. . . . . . . . . 35
SECTION 2.12 Temporary Securities . . . . . . . . . . . . . . . . . 36
SECTION 2.13 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . 36
ARTICLE THREE COVENANTS OF THE ISSUER . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.1 Payment of Principal and Interest . . . . . . . . . . 37
SECTION 3.2 Offices for Payments, etc. . . . . . . . . . . . . . . 37
SECTION 3.3 Paying Agents . . . . . . . . . . . . . . . . . . . . 38
SECTION 3.4 Limitation on Liens . . . . . . . . . . . . . . . . . 39
SECTION 3.5 Limitation on Sales and Leasebacks . . . . . . . . . . 41
SECTION 3.6 Notice of Default . . . . . . . . . . . . . . . . . . 43
SECTION 3.7 Calculation of Original Issue Discount . . . . . . . . 43
SECTION 3.8 Reports . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 3.9 Compliance Certificates . . . . . . . . . . . . . . . 43
ARTICLE FOUR REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT . . . . 44
SECTION 4.1 Events of Default . . . . . . . . . . . . . . . . . . 44
SECTION 4.2 Payment of Securities on Default; Suit Therefor . . . 47
SECTION 4.3 Application of Moneys Collected by Trustee . . . . . . 50
SECTION 4.4 Proceedings by Trustee . . . . . . . . . . . . . . . . 51
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings . 51
SECTION 4.6 Proceedings by Securityholders . . . . . . . . . . . . 52
SECTION 4.7 Remedies Cumulative and Continuing . . . . . . . . . . 52
SECTION 4.8 Control by Securityholders . . . . . . . . . . . . . . 53
SECTION 4.9 Waiver of Past Defaults . . . . . . . . . . . . . . . 53
ARTICLE FIVE CONCERNING THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 5.1 Reliance on Documents, Opinions, etc.; No
Requirement for Expenditure of Own Funds . . . . . 54
<PAGE>
SECTION 5.2 No Responsibility for Recitals, etc. . . . . . . . . . 56
SECTION 5.3 Trustee and Agents May Hold Securities. . . . . . . . 56
SECTION 5.4 Moneys to Be Held in Trust. . . . . . . . . . . . . . 56
SECTION 5.5 Compensation and Expenses of Trustee. . . . . . . . . 57
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate,
etc. . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 5.7 Eligibility of Trustee. . . . . . . . . . . . . . . . 58
SECTION 5.8 Resignation or Removal of Trustee; Appointment of
Successor Trustee. . . . . . . . . . . . . . . . . 58
SECTION 5.9 Acceptance of Appointment by Successor Trustee. . . . 60
SECTION 5.10 Merger, Conversion, Consolidation or Succession to
Business of Trustee. . . . . . . . . . . . . . . . 61
SECTION 5.11 Reports by Trustee to Security-holders . . . . . . . . 62
ARTICLE SIX CONCERNING THE SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . 62
SECTION 6.1 Action by Securityholders. . . . . . . . . . . . . . . 62
SECTION 6.2 Proof of Execution by Security-holders. . . . . . . . 64
SECTION 6.3 Holders to Be Treated as Owners. . . . . . . . . . . . 65
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. . . 65
SECTION 6.5 Right of Revocation of Action Taken. . . . . . . . . . 66
SECTION 6.6 Securityholders' Meetings; Purposes. . . . . . . . . . 66
SECTION 6.7 Call of Meetings by Trustee. . . . . . . . . . . . . . 67
SECTION 6.8 Call of Meetings by Issuer or Securityholders. . . . . 68
SECTION 6.9 Qualifications for Voting. . . . . . . . . . . . . . . 68
SECTION 6.10 Quorum; Adjourned Meetings. . . . . . . . . . . . . . 68
SECTION 6.11 Regulations. . . . . . . . . . . . . . . . . . . . . . 69
SECTION 6.12 Voting. . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 6.13 No Delay of Rights by Meeting. . . . . . . . . . . . . 71
SECTION 6.14 Written Consent in Lieu of Meeting . . . . . . . . . . 71
ARTICLE SEVEN SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. . . . . . . . . . . . . . . . . . 71
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders. . . . . . . . . . . . . . . . . . 73
SECTION 7.3 Effect of Supplemental Indenture. . . . . . . . . . . 75
SECTION 7.4 Certain Documents to Be Given to Trustee. . . . . . . 75
SECTION 7.5 Notation on Securities. . . . . . . . . . . . . . . . 75
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE . . . . . . . . . . . 76
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms. . . . 76
SECTION 8.2 Successor Corporation to Be Substituted. . . . . . . . 76
SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be
Given to Trustee. . . . . . . . . . . . . . . . . . 77
ARTICLE NINE SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS . . . . . . 77
SECTION 9.1 Satisfaction and Discharge of Indenture. . . . . . . . 77
SECTION 9.2 Application by Trustee of Funds Deposited for
Payment of Securities. . . . . . . . . . . . . . . 79
SECTION 9.3 Repayment of Moneys Held by Paying Agent. . . . . . . 79
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. . . . . . . . . . . . . . 79
SECTION 9.5 Issuer's Option to Effect Defeasance or Covenant
Defeasance. . . . . . . . . . . . . . . . . . . . . 79
SECTION 9.6 Defeasance and Discharge. . . . . . . . . . . . . . . 79
SECTION 9.7 Covenant Defeasance. . . . . . . . . . . . . . . . . . 80
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance. . . . 81
SECTION 9.9 Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions. . 83
ARTICLE TEN REDEMPTION OF SECURITIES AND SINKING FUNDS . . . . . . . . . . . . . . 84
<PAGE>
SECTION 10.1 Applicability of Article. . . . . . . . . . . . . . . 84
SECTION 10.2 Notice of Redemption; Selection of Securities. . . . . 84
SECTION 10.3 Payment of Securities Called for Redemption. . . . . . 86
SECTION 10.4 Conversion Arrangement on Call for Redemption . . . . 87
SECTION 10.5 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. . . . . . . . . . . . . . 88
SECTION 10.6 Mandatory and Optional Sinking Funds. . . . . . . . . 88
ARTICLE ELEVEN CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . 92
SECTION 11.1 Conversion of Securities. . . . . . . . . . . . . . . 92
SECTION 11.2 Issuance of Shares of Stock on Conversion. . . . . . . 93
SECTION 11.3 No Adjustment for Interest or Dividends . . . . . . . 95
SECTION 11.4 Adjustment of Conversion Price. . . . . . . . . . . . 95
SECTION 11.5 No Fractional Shares To Be Issued. . . . . . . . . . . 100
SECTION 11.6 Preservation of Conversion Rights upon
Consolidation, Merger, Sale or Conveyance . . . . . 101
SECTION 11.7 Notice to Holders of Securities Prior to Taking
Certain Types of Action. . . . . . . . . . . . . . 101
SECTION 11.8 Covenant to Reserve Shares for Issuance on
Conversion of Securities. . . . . . . . . . . . . . 102
SECTION 11.9 Compliance with Governmental Requirements. . . . . . . 103
SECTION 11.10 Payment of Taxes upon Certificates for Shares Issued
upon Conversion. . . . . . . . . . . . . . . . . . 103
SECTION 11.11 Trustee's Duties with Respect to Conversion
Provisions. . . . . . . . . . . . . . . . . . . . . 104
ARTICLE TWELVE SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
SECTION 12.1 Securities Subordinate to Senior Indebtedness . . . . 104
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, etc. . . . 105
SECTION 12.3 Default on Senior Indebtedness . . . . . . . . . . . . 106
SECTION 12.4 Payment Permitted if No Default . . . . . . . . . . . 107
SECTION 12.5 Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . 108
SECTION 12.6 Provisions Solely to Define Relative Rights . . . . . 108
SECTION 12.7 Trustee to Effectuate Subordination . . . . . . . . . 109
SECTION 12.8 No Waiver of Subordination Provisions . . . . . . . . 109
SECTION 12.9 Notice to Trustee . . . . . . . . . . . . . . . . . . 110
SECTION 12.10 Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . . 111
SECTION 12.11 Rights of Trustee as a Holder of Senior
Indebtedness; Preservation of Trustee's Rights . . 111
SECTION 12.12 Article Applicable to Paying Agents . . . . . . . . . 112
SECTION 12.13 Not to Prevent Events of Default . . . . . . . . . . . 112
SECTION 12.14 Securities Senior to Subordinated Indebtedness . . . . 112
SECTION 12.15 Certain Conversions Deemed Payment . . . . . . . . . . 112
SECTION 12.16 Trustee Not Fiduciary for Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . 113
ARTICLE THIRTEEN MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 113
SECTION 13.1 Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from Individual Liability . . . . 113
SECTION 13.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. . . . . . . . . . . . 113
SECTION 13.3 Successors and Assigns of Issuer Bound by Indenture. . 113
SECTION 13.4 Notices and Demands on Issuer, Trustee and
Securityholders. . . . . . . . . . . . . . . . . . 114
SECTION 13.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. . . . . . . . . 115
SECTION 13.6 Official Acts by Successor Entity. . . . . . . . . . . 116
SECTION 13.7 Payments Due on Saturdays, Sundays and Legal
Holidays. . . . . . . . . . . . . . . . . . . . . . 116
SECTION 13.8 NEW YORK LAW TO GOVERN. . . . . . . . . . . . . . . . 116
SECTION 13.9 Counterparts. . . . . . . . . . . . . . . . . . . . . 116
<PAGE>
SECTION 13.10 Effect of Headings. . . . . . . . . . . . . . . . . . 116
SECTION 13.11 Conflict with Trust Indenture Act. . . . . . . . . . . 117
</TABLE>
THIS CONVERTIBLE SUBORDINATED DEBT INDENTURE, dated as of ,
between NEWMONT MINING CORPORATION, a Delaware corporation (the "Issuer"), and
THE BANK OF NEW YORK, a New York banking corporation (the "Trustee").
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issuance from time to
time of its unsecured bonds, debentures, notes and other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts and denominated in United States dollars or
foreign currency or units or composites of two or more thereof as may from
time to time be authorized in accordance with the terms of this Indenture,
which Securities shall be convertible, pursuant to Article Eleven hereof, into
shares of Common Stock of the Issuer, shares of a series of Preferred Stock of
the Issuer or Depositary Shares representing fractions of such shares of a
series of Preferred Stock, and which Securities shall be subordinated in right
of payment to all Senior Indebtedness of the Issuer, pursuant to Article
Twelve hereof, and to provide, among other things, for the authentication,
delivery and administration thereof, the Issuer has duly authorized the execu-
tion and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture, when executed
and delivered by the parties hereto, a valid indenture and agreement according
to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, the Issuer and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective Holders from time to
time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
herein otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All
other terms used in this Indenture that are defined in the Trust Indenture Act
of 1939, as amended to the date of this Indenture as originally executed, or
the definitions of which in the Securities Act of 1933, as amended to the date
of this Indenture as originally executed, are referred to in the Trust
Indenture Act of 1939 (except as herein otherwise expressly provided or unless
the context otherwise clearly requires), shall have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act as in force
at the date of this Indenture. 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. The terms defined in
this Article have the meanings assigned to them in this Article and include
the plural as well as the singular.
"Attributable Debt" means, as to any particular lease under which
the Issuer is at the time liable, at any date as of which the amount thereof
is to be determined, the total net amount of rent required to be paid by the
Issuer under such lease during the remaining term thereof, discounted from the
<PAGE>
respective due dates thereof to such date at the rate of interest per annum
implicit in the terms of such lease (as determined by any two of the
following: the chairman, the vice chairman, the president, any vice
president, the treasurer, the controller or the secretary of the Issuer)
compounded semi-annually. The net amount of rent required to be paid under
any such lease for any such period shall be the amount of the rent payable by
the lessee with respect to such period, after excluding amounts required to be
paid on account of maintenance and repairs, insurance, taxes, assessments,
water rates and similar charges. In the case of any lease which is terminable
by the lessee upon the payment of a penalty, such net amount shall also
include the amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date upon which
it may be so terminated.
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board of Directors duly authorized to act
hereunder.
"Business Day" means, except as otherwise provided pursuant to
Section 2.4 for Securities of any series, any day that is not a Saturday or
Sunday and that is not a day on which banking institutions are generally
authorized or obligated by law to close in The City of New York.
"Closing Price" with respect to any securities on any day means the
closing sale price regular way on such day or, in case no such sale takes
place on such day, the average of the reported closing bid and asked prices,
regular way, in each case on the New York Stock Exchange, or, if such security
is not listed or admitted to trading on such Exchange, on the principal
national securities exchange or quotation system on which such security is
quoted or listed or admitted to trading, or, if not quoted or listed or
admitted to trading on any national securities exchange or quotation system,
the average of the closing bid and asked prices of such security on the over-
the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similarly generally accepted reporting
service, or if not so available, in such manner as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of
Directors for that purpose or a price determined in good faith by the Board of
Directors.
"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 and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"Common Stock" means the common stock, par value $1.60 per share, of
the Issuer, as designated on the date hereof, and all shares hereafter
authorized of any class or classes of common stock of the Issuer.
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (a) all current liabilities (excluding any thereof which
are by their terms extendible or renewable at the option of the obligor
thereon to a time more than 12 months after the time as of which the amount
thereof is being computed and excluding current maturities of long-term
indebtedness and capital lease obligations) and (b) all goodwill, all as
shown in the most recent consolidated balance sheet of the Issuer and its
Subsidiaries computed in accordance with generally accepted accounting
principles.
"Conversion Agent" has the meaning specified in Section 3.2.
"Conversion Price" means the price at which the Securities shall be
convertible into Common Stock, Preferred Stock or Depositary Shares, as the
case may be, such price to be established pursuant to Section 2.4, subject to
<PAGE>
adjustment, in the case of Securities convertible into Common Stock, as
provided in Section 11.4 and, in the case of Securities convertible into
Preferred Stock or Depositary Shares, as established pursuant to Section 11.4.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at 101 Barclay Street, 21W, New York, New York
10286.
"covenant defeasance" and "defeasance" have the meanings assigned to
such terms, respectively, by Sections 9.7 and 9.6.
"Current Market Price" on any date means the average of the daily
Closing Prices per share of Common Stock for any 30 consecutive Trading Days
selected by the Issuer commencing not more than 45 Business Days before such
date.
"Depositary" means, with respect to the Securities of any series or
tranche issuable or issued in the form of one or more Global Securities, the
Person designated as Depositary for such Global Securities by the Issuer
pursuant to Section 2.4 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary for
such Global Securities, and if at any time there is more than one Person
designated as Depositary for Global Securities of a particular series or
tranche, "Depositary", as used with respect to the Securities of such series
or tranche, means the Depositary with respect to the particular Global
Security or Securities.
"Depositary Shares" means depositary shares, evidencing a fraction
of a share of Preferred Stock, issued pursuant to a Deposit Agreement entered
into between the Issuer and the Preferred Stock Depositary.
"Dollar" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" means any event or condition specified as such in
Section 4.1.
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the amount thereof
is to be determined or having a maturity of less than 12 months but by its
terms being renewable or extendable beyond 12 months from such date at the
option of the borrower.
"Global Security" means a Security evidencing all or a part of a
series or tranche of Securities, issued to the Depositary for such series or
tranche, as the case may be, in accordance with Section 2.5 and bearing the
legend prescribed in Section 2.5.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms means a Person in whose name a Security is registered in the Register.
"Indebtedness" means (i) indebtedness of the Issuer for money
borrowed, (ii) guarantees by the Issuer of indebtedness for money borrowed by
any other Person, (iii) indebtedness of the Issuer evidenced by notes,
debentures, bonds or other similar instruments of indebtedness for payment of
which the Issuer is responsible or liable, by guarantees or otherwise
(including purchase money obligations), but shall not include any amounts owed
to trade creditors in the ordinary course of business and (iv) any deferral,
amendment, renewal, extension, supplement or refunding of any liability of the
kind described in any such indebtedness and guarantees.
<PAGE>
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended
and/or supplemented from time to time, and shall include (i) for all purposes
of this instrument and any supplemental indenture, the provisions of the Trust
Indenture Act of 1939 that are deemed to be a part of and govern this
instrument and any such supplemental indenture, respectively, and (ii) the
forms and terms of particular series of Securities established as contemplated
hereunder.
"Interest" means, when used with respect to a non-interest bearing
Security, interest payable after the principal thereof has become due and
payable whether at maturity, by declaration of acceleration, by call for
redemption, pursuant to a sinking fund or otherwise.
"Issuer" means Newmont Mining Corporation, a Delaware corporation,
until any successor corporation shall have become such pursuant to Article
Eight and thereafter "Issuer" shall mean such successor except as otherwise
provided in Section 8.2.
"Market Exchange Rate" has the meaning set forth in Section 6.1.
"New York Location" means the location in the Borough of Manhattan,
The City of New York, at which at any particular time the Trustee receives and
redelivers securities, which location at the date of execution of this
Indenture is 101 Barclay Street, Lobby Level, Trust Services Window, New York,
New York 10286.
"Officers' Certificate" when used with respect to the Issuer, means
a certificate signed by the chairman of the Board of Directors, any vice
chairman of the Board of Directors, the president or any vice president and by
the treasurer, controller, the secretary or any assistant secretary of the
Issuer and delivered to the Trustee. Each such certificate shall include the
statements required by the Trust Indenture Act of 1939 or as provided for in
Section 13.5, if and to the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel who may be an employee of or counsel to the Issuer and who shall be
satisfactory to the Trustee. Each such opinion shall include the statements
required by the Trust Indenture Act of 1939 or as provided for in Section
13.5, if and to the extent required hereby.
"original issue date" of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly)
on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable
upon redemption or a declaration of acceleration of the maturity thereof
pursuant to Section 4.1.
"Outstanding" (except as otherwise required by the Trust Indenture
Act of 1939), when used with reference to Securities, shall, subject to the
provisions of Section 6.4, mean, as of any particular time, all Securities
theretofore authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities, or portions thereof, which have become due and for
the payment or redemption of which moneys in the necessary amount shall
have been theretofore deposited in trust with the Trustee or with any
paying agent (other than the Issuer) or shall have been set aside,
segregated and held in trust by the Issuer for the Holders of such
Securities (if the Issuer shall act as its own paying agent); and
<PAGE>
(c) Securities in lieu of or in substitution for which other
Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.10, or which shall have been paid pursuant to Section
2.10.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount that shall be deemed to be Outstanding for such purposes in the case of
an Original Issue Discount Security or (unless as otherwise established
pursuant to Section 2.4) in the case of a Security which provides that an
amount other than the face amount thereof will or may be payable upon the
maturity thereof or a declaration of acceleration of the maturity thereof
shall be the amount of the principal thereof that would be due and payable as
of the date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 4.1.
"Overdue Rate" means, unless otherwise specified in the Securities
of any series, the same rate as the rate of interest specified in the
Securities of such series or, in the case of a series of Original Issue
Discount Securities, the Yield to Maturity of such series of Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Preferred Stock" means preferred stock, par value $5.00 per share,
of the Issuer issuable in series pursuant to the Restated Certificate of
Incorporation of the Issuer and Certificates of Designations relating to each
series of preferred stock so issued.
"Preferred Stock Depositary" means, with respect to a particular
series of Securities, the bank or trust company designated by the Issuer
pursuant to Section 2.4 to act as such with respect to shares of Preferred
Stock underlying the Depositary Shares issuable upon conversion of such
Securities.
"Principal" whenever used with reference to the Securities or any
Security or any portion thereof, shall be deemed to include "and premium, if
any".
"Principal Property" means any mine, together with any fixtures
comprising a part thereof, and any plant or other facility, together with any
land upon which such plant or other facility is erected and fixtures
comprising a part thereof, used primarily for mining or processing, in each
case, located in the United States of America and the net book value of which
on the date as of which the determination is being made exceeds 5% of Con-
solidated Net Tangible Assets; provided, that Principal Property shall not
include (a) any mine, plant or facility which, in the opinion of the Board of
Directors of the Issuer, is not of material importance to the total business
conducted by the Issuer and its Subsidiaries as an entirety or (b) any portion
of a particular mine, plant or facility which, in the opinion of the Issuer is
not of material importance to the use or operation of such mine, plant or
facility.
"Register" has the meaning set forth in Section 2.9.
"Representative" means the indenture trustee or other trustee, agent
or representative for an issue of Senior Indebtedness.
"Resolution" means a resolution of the Board of Directors, including
without limitation any such resolution by which or pursuant to which any
series of Securities is authorized and established pursuant to Section 2.4.
"Responsible Officer", when used with respect to the Trustee, means
the chairman of the board of directors, any vice chairman of the board of
<PAGE>
directors, the chairman of the trust committee, the chairman of the executive
committee, any vice chairman of the executive committee, the president, any
vice president, the cashier, the secretary, the treasurer, any senior trust
officer, trust officer, any assistant trust officer, any assistant vice
president, any assistant cashier, any assistant secretary, any assistant
treasurer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary (a) substantially all
of the property of which is located, or substantially all of the business of
which is carried on, within the United States of America and (b) which owns a
Principal Property; provided, that Restricted Subsidiary shall not include any
Subsidiary the primary business of which consists of financing operations in
connection with leasing and conditional sales transactions on behalf of the
Issuer and its Subsidiaries, and/or purchasing accounts receivable and/or
making loans secured by accounts receivable or inventory, or which is
otherwise primarily engaged in the business of a finance company.
"Security" or "Securities" (except as otherwise required by the
Trust Indenture Act of 1939) has the meaning stated in the first recital of
this Indenture or means any Securities that have been issued, authenticated
and delivered under this Indenture, as the context may require.
"Security registrar" has the meaning set forth in Section 2.9.
"Senior Indebtedness" means all the principal, premium, if any,
accrued and unpaid interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to the
Issuer whether or not a claim for post-filing interest is allowed in such
proceeding) of Indebtedness of the Issuer, whether any such Indebtedness
exists as of the date of this Indenture or shall thereafter be created,
incurred, assumed or guaranteed by the Issuer, other than the following: (1)
any Indebtedness as to which, in the instrument evidencing such Indebtedness
or pursuant to which such Indebtedness was issued, it is expressly provided
that such Indebtedness is subordinate in right of payment to all Indebtedness
of the Issuer not expressly subordinated to such Indebtedness; (2) any
Indebtedness which by its terms refers explicitly to the Securities and states
that such Indebtedness shall not be senior, shall be pari passu or shall be
subordinated in right of payment to the Securities; and (3) with respect to
any series of Securities, any Indebtedness of the Issuer evidenced by
Securities of the same or of another series. Notwithstanding anything to the
contrary in the foregoing, Senior Indebtedness shall not include Indebtedness
of the Issuer to a subsidiary of the Issuer.
"series", as used in the definitions of "Indenture" and "Overdue
Rate" in this Section 1.1 and as used in Section 2.4 (except as used in the
first sentence of the second paragraph thereof and in the first and last
sentences of the third paragraph thereof), 2.8, 2.9, 2.10, 2.12, 3.1, 3.2, 3.3
(except as used in the fourth paragraph thereof), 10.1, 10.2, 10.3 and 10.6,
means "tranche" for any Securities of a series of Securities consisting of
more than one tranche.
"Subordinated Indebtedness" means all the principal, premium, if
any, accrued and unpaid interest (including interest accruing on or after the
filing of any petition in bankruptcy or for reorganization relating to the
Issuer whether or not a claim for post-filing interest is allowed in such
proceeding) of Indebtedness of the Issuer, whether any such Indebtedness
exists as of the date of this Indenture or shall thereafter be created,
incurred, assumed or guaranteed by the Issuer, which by its terms is expressly
subordinated in right of payment to the Securities.
"Subsidiary" means any corporation of which at least a majority of
the outstanding stock having by the terms thereof ordinary voting power for
<PAGE>
the election of directors of such corporation (irrespective of whether or not
at the time stock of any other class or classes of such corporation shall have
or might have voting power by reason of the happening of any contingency) is
at the time directly or indirectly owned by the Issuer, or by one or more
other Subsidiaries, or by the Issuer and one or more other Subsidiaries.
"Trading Day" means (x) if the applicable security is listed or
admitted for trading on the New York Stock Exchange or another national
securities exchange, a day on which such exchange is open for business or (y)
if the applicable security is quoted on the National Market System of the
NASDAQ, a day on which trade may be made on such National Market System or (z)
if the applicable security is not otherwise listed, admitted for trading or
quoted, any day other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close.
"tranche" means all Securities of the same series having the same
Original issue date, interest rate, maturity, repayment and redemption
provisions.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee. If pursuant to the provisions of this
Indenture there shall be at any time more than one Trustee hereunder, the term
"Trustee" as used with respect to Securities of any series shall mean the
Trustee or Trustees with respect to the Securities of that series.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939, as amended, as in
force at the date as of which this Indenture was originally executed;
provided, however, that in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act of 1939" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"U.S. Government Obligations" has the meaning set forth in Section
9.8.
"vice president", when used with respect to the Issuer 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 of "vice president".
"Yield to Maturity" means, in the case of any Original Issue
Discount Security, the yield to maturity specified in such Security or in a
Resolution relating thereto.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall
be substantially in the form set forth in this Article, or in such other form
as shall be established by or pursuant to a 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 imprinted or otherwise reproduced thereon such
letters, numbers or other marks of identification and such legends or
endorsements as may be required to comply with any applicable law, rule or
regulation or with the rules of any securities exchange or as may, consistent
with the provisions of this Indenture, be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
<PAGE>
SECTION 2.2 Form of Face of Security. [If the Security is an
Original Issue Discount Security, insert any legend required by the Internal
Revenue Code of 1986, as amended and the regulations thereunder.]
No.
$ CUSIP No.
NEWMONT MINING CORPORATION
[Insert Designation of Series]
Newmont Mining Corporation, a corporation duly organized and
existing under the laws of the State of Delaware (herein called the "Issuer"),
for value received, hereby promises to pay to , or registered assigns,
the principal sum of on [if the Security
is to bear interest prior to maturity, insert--, and to pay interest thereon
[[insert as applicable--annually or semi-annually or quarterly]] on [[insert
appropriate interest payment dates]] (the "Interest Payment Dates") in each
year, commencing , [insert--at the rate of % per annum or, if
applicable, insert the method for determining the adjustable, floating or
other form of variable interest rate borne by the Securities] until the
principal hereof is paid or made available for payment [if applicable, insert
- --, and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of % per annum on any overdue principal and
premium, if any, and on any overdue installment of interest]. Notwithstanding
the foregoing, this Security shall bear interest from the most recent Interest
Payment Date to which interest in respect hereof has been paid or duly
provided for, unless (i) the date hereof is such an Interest Payment Date, in
which case from the date hereof, or (ii) no interest has been paid on this
Security, in which case from ; provided, however, that if the
Issuer shall default in the payment of interest due on the date hereof, then
this Security shall bear interest from the next preceding Interest Payment
Date to which Interest has been paid or, if no interest has been paid on this
Security from . Notwithstanding the foregoing, if the date hereof
is after the or (whether or not a Business Day) (the
"Record Date"), as the case may be, next preceding an Interest Payment Date
and before such Interest Payment Date, this Security shall bear interest from
such Interest Payment Date; provided, however, that if the Issuer shall
default in the payment of interest due on such Interest Payment Date, then
this Security shall bear interest from the next preceding Interest Payment
Date to which interest has been paid or, if no interest has been paid on this
Security, from . The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be
paid to the Person in whose name this Security is registered at the close of
business on the Record Date next preceding such Interest Payment Date. Unless
otherwise specified for the Security pursuant to Section 2.4, insert -
[Interest on this Security will be computed and paid on the basis of a 360-day
year of twelve 30-day months.]
[If the Security is not to bear interest prior to maturity, insert--
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at
maturity and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of % per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]
<PAGE>
Payment of the principal of and [if applicable, insert--any such]
interest on this Security will be made at the office or agency of the Issuer
maintained for that purpose in [insert the places of payment], in [insert the
currency or currencies of payment]; provided, however, that at the option of
the Issuer payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address shall appear in the Security
register.
[If the Security is an extendible security, insert--The Securities
of this series are subject to repayment on [insert provisions with respect to
repayment date or dates] at the option of the Holders thereof exercisable on
or before the , but not prior to the
preceding such , at a repayment price equal to the principal
amount thereof to be repaid, together with interest payable thereon to the
repayment date, as described on the reverse side hereof.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed under its corporate seal.
NEWMONT MINING CORPORATION
By
Attest:
SECTION 2.3 Forms of Reverse of Security, Trustee's Certificate of
Authentication and Election to Convert.
NEWMONT MINING CORPORATION
This Security is one of a duly authorized issue of securities of the
Issuer (herein called the "Securities"), issued and to be issued in one or
more series under a Convertible Senior Debt Indenture, dated as of
(herein called the "Indenture"), between the Issuer and The Bank
of New York, as Trustee (herein called the "Trustee"), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement
of the respective rights, limitations of rights, obligations, duties and
immunities thereunder of the Issuer, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof [if applicable, insert--limited in aggregate principal amount
to ]. The separate series of Securities may be issued in various
aggregate principal amounts, may mature at different times, may bear interest,
if any, at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking or purchase funds (if any), may
have different conversion provisions, may be subject to different repayment
provisions (if any), may be subject to different covenants and Events of
Default and may otherwise vary as in the Indenture provided. The Indenture
further provides that the Securities of a single series may be issued at
various times, with different maturity dates, may bear interest, if any, at
<PAGE>
different rates, may be subject to different redemption provisions (if any),
may be subject to different sinking or purchase funds (if any) and may be
subject to different repayment provisions (if any).
[If applicable, insert -- The Securities of this series may not be
redeemed prior to maturity.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [[if
applicable, insert --(1) on in any year commencing with the year
and ending with the year through operation of the sinking fund for this
series (as more fully described in the next succeeding paragraph) at [[insert
either--a redemption price equal to 100% of the principal amount of the
Securities to be redeemed or the redemption prices for redemption through
operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below,]], and (2)]] at any time [[if
applicable, insert--on or after ]], as a whole or in part, at the
election of the Issuer, at the [[insert either--following redemption prices or
redemption prices for redemption otherwise than through operation of the
sinking fund]] (expressed as percentages of the principal amount): if
redeemed [[if applicable, insert--on or before , %, and if
redeemed]] during the 12-month period beginning of the years
indicated,
<TABLE>
<S> <C> <C>
[[If applicable,
Redemption Price insert --
For Redemption Price
[[if applicable, For Redemption
insert -- Otherwise Than
Through Operation Through Operation
of the of the
Year Sinking Fund]] Sinking Fund]]
</TABLE>
and thereafter at a redemption price equal to % of the principal amount
thereof, together in the case of any such redemption (whether through
operation of the sinking fund or otherwise) with accrued interest to the date
fixed for redemption, but interest installments maturing on or prior to such
redemption date will be payable to the Holders of such Securities of record at
the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture.]
[If applicable, insert--The sinking fund for this series provides
for the redemption on in each year beginning with the year and
ending with the year of [[not less than]] $ [[("mandatory sinking
fund payments") and not more than $ ]] aggregate principal amount of
Securities of this series.] [If applicable, insert--Securities of this series
acquired or redeemed by the Issuer otherwise than through [[mandatory]]
sinking fund payments and Securities of this series surrendered to the Issuer
for conversion may be credited against subsequent [[mandatory]] sinking fund
payments otherwise required to be made.]
[If applicable, insert--Notwithstanding the foregoing, the Issuer
may not, prior to , redeem any Securities of this series as
contemplated by [[Clause (2) of]] the preceding paragraph as a part of, or in
anticipation of, any refunding operation by the application, directly or
<PAGE>
indirectly, of moneys borrowed having an interest cost to the Issuer
(calculated in accordance with generally accepted financial practice) of less
than % per annum.]
[If applicable, insert--Partial redemptions must be in an amount not
less than $ principal amount of Securities.]
[If applicable, insert--In the event of redemption of this Security
in part only, a new Security or Securities of this series for the unredeemed
portion hereof having the same interest rate and maturity as this Security
will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is convertible at the option of the Holder, insert-
- - Subject to the provisions of the Indenture, the Holder hereof has the right,
at his option at any time until the close of business three Business Days
prior to the date fixed for redemption or maturity, as the case may be (except
that, in case this Security shall be called for redemption before maturity,
such right shall terminate in respect of this Security at the close of
business on the date fixed for redemption of this Security unless the Issuer
shall default in payment due upon such redemption), to convert this Security
(or any portion hereof which is [$1,000] or an integral multiple thereof) into
fully paid and nonassessable shares of Common Stock of the Issuer at the
initial conversion price of $ per share of Common Stock, subject to
such adjustment, if any, of the conversion price and the securities or other
property issuable upon conversion as may be required by the provisions of the
Indenture, but only upon surrender of this Security to the Trustee or to the
conversion agent for surrender to the Issuer in accordance with the
instructions on file with the conversion agent, accompanied by a written
notice of election to convert, which shall be substantially in the Form of
Election to Convert printed hereon, and (if required by the Issuer) by an
instrument or instruments of transfer, in form satisfactory to the Issuer,
duly executed by the Holder or by his attorney duly authorized in writing.]
[If the Security is subject to mandatory conversion or conversion at
the option of the Issuer, insert applicable provisions.]
No payment or adjustment is to be made on conversion for interest
accrued hereon or for dividends on shares of Common Stock issued on
conversion; provided, however, that if a Security is surrendered for
conversion after the Record Date for a payment of interest and on or before
the Interest Payment Date, then, notwithstanding such conversion, the interest
falling due to such Interest Payment Date will be paid to the person in whose
name the Security is registered at the close of business on such Record Date
and any Security surrendered for conversion during the period from the close
of business on any Record Date to the opening of business on the corresponding
Interest Payment Date must be accompanied by payment of an amount equal to the
interest payable on such Interest Payment Date. No fractional shares shall be
issuable upon any conversion, but in lieu thereof the Issuer shall make an
adjustment therefor in cash as provided in the Indenture.
[If the Security is not an Original Issue Discount Security, insert-
- -If an Event of Default with respect to Securities of this series shall occur
and be continuing, then the Trustee or the Holders of not less than 25% in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities of this series then Outstanding may declare the principal of the
Securities of this series and accrued interest thereon, if any, to be due and
payable in the manner and with the effect provided in the Indenture.] [If the
Security is an Original Issue Discount Security, insert--If an Event of De-
fault with respect to Securities of this series shall occur and be continuing,
then the Trustee or the Holders of not less than 25% in aggregate principal
amount (calculated as provided in the Indenture) of the Securities of this
series then Outstanding may declare an amount of principal of the Securities
of this series due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to [[insert formula for determining
the amount]].]
<PAGE>
[If the Security is an extendible security, insert--The Securities
of this series are subject to repayment in whole, or in part, on [insert
month, day and years], in increments of or multiples of in
excess of , provided that the portion of the principal amount of any
Security of this series not being repaid shall be at least , at the
option of the Holder thereof at a repayment price equal to the principal
amount thereof to be repaid, together with interest payable thereon to the
repayment date. For this Security to be repaid at the option of the Holder,
the Trustee must receive at the Corporate Trust Office or the New York
Location, on or before the [insert month and day] or, if such [insert month
and day] is not a day other than a day on which banking institutions in the
Borough of Manhattan, the City and State of New York are authorized or
required by law or regulation to close (a "Business Day"), the next succeeding
Business Day, but not earlier than the [insert month and day] prior to the
[insert month and day] on which the repayment price will be paid (i) this
Security, with the form entitled "Option to Elect Repayment" below duly com-
pleted, or (ii) a facsimile transmission or letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or
a commercial bank or trust company in the United States of America setting
forth the name of the Holder of this Security, the principal amount of the
Security, the amount of such Security to be repaid, a statement that the
option to elect repayment is being made thereby and a guarantee that the
Security to be repaid with the form entitled "Option to Elect Repayment" on
the reverse thereof duly completed will be received by the Issuer no later
than five Business Days after the date of such facsimile transmission or
letter, and such Security and form duly completed are received by the Issuer
by such fifth Business Day. Either form of notice duly received on or before
the [insert month and day] preceding any such [insert month and day] shall be
irrevocable. All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Securities of this series for repayment will be
determined by the Issuer, whose determination shall be final and binding.]
The Securities are subordinated in right of payment, in the manner
and to the extent set forth in the Indenture, to the prior payment in full of
all Senior Indebtedness of the Issuer whether outstanding on the date of the
Indenture or thereafter created, incurred, assumed or guaranteed. Each Holder
by his acceptance hereof agrees to be bound by such provisions and authorizes
and expressly directs the Trustee, on his behalf, to take such action as may
be necessary or appropriate to effectuate the subordination provided for in
the Indenture and appoints the Trustee his attorney-in-fact for such purpose.
The Indenture permits, with certain exceptions as therein provided,
the amendment or supplementing thereof and the modification of the rights and
obligations of the Issuer and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Issuer and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount (calculated as provided in the Indenture) of the
Securities at the time Outstanding of all series to be affected (all such
series voting as a single class). The Indenture also contains provisions per-
mitting the Holders of not less than a majority in aggregate principal amount
(calculated as provided in the Indenture) of the Securities of each series at
the time Outstanding, on behalf of the Holders of all Securities of such
series, to waive certain past defaults or Events of Default under the
Indenture and the consequences of any such defaults or Events of Default. Any
such consent or waiver by the Holder of this Security (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Issuer, which is absolute and unconditional, to pay the principal of and
interest, if any, on this Security at the times, place and rate, if any, and
in the coin or currency, herein prescribed.
<PAGE>
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the
Security register, upon due presentment of this Security for registration of
transfer at the office or agency of the Issuer in any place where the prin-
cipal of and interest, if any, on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Issuer and the Security registrar duly executed by the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities
of this series, having the same interest rate and maturity and bearing
interest from the same date as this Security, of any authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination having the same interest rate and maturity and bearing
interest from the same date as such Securities, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue and
notwithstanding any notation of ownership or other writing thereon, and
neither the Issuer, the Trustee nor any such agent shall be affected by notice
to the contrary. All payments made to or upon the order of such registered
Holder, shall, to the extent of the sum or sums paid, effectually satisfy and
discharge liability for monies payable on this Security.
No recourse for the payment of the principal of or interest, if any,
on this Security, or for any claim based hereon or otherwise in respect
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Issuer in the Indenture or any indenture supplemental thereto or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, official or director, as
such, past, present or future, of the Issuer or of any successor entity,
either directly or through the Issuer or any successor corporation, whether by
virtue of any constitution, statute or rule of law or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the ac-
ceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
All terms used in this Security and not otherwise defined herein
which are defined in the Indenture shall have the meanings assigned to them in
the Indenture.
This Security shall be governed by and construed in accordance with
the laws of the State of New York.
[Form of Trustee's Certificate of Authentication]
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
as Trustee
<PAGE>
By
Authorized Signatory
[Form of Election to Convert]
The undersigned Holder of this Security hereby irrevocably exercises
the option to convert this Security into shares of Common Stock of the Issuer,
in accordance with the terms of the Indenture referred to in this Security,
and directs that the shares issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of and
delivered to the undersigned unless a different name has been indicated below.
If shares are to be issued in the name of a person other than the undersigned,
the undersigned has paid all transfer taxes payable with respect thereto.
Dated:
Signature (for conversion only)
If shares are to be issued Holder
otherwise than to Holder: Please print name and address
Please print name and address
Signature Guarantee:
SECTION 2.4 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, each of which
may consist of one or more tranches. There shall be established in or
pursuant to a Resolution, a copy of which, certified by the secretary or an
assistant secretary of the Issuer, shall be delivered to the Trustee, or
established in one or more indentures supplemental hereto, prior to the
issuance of Securities of a particular series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series that 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 2.9, 2.10, 2.12 or 10.3);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates
(including the Overdue Rate) shall be determined, the date or dates from
which such interest shall accrue or the method by which such date or
dates may be determined, the interest payment dates on which such
interest shall be payable and the record dates for the determination of
Holders to whom interest is payable;
(5) the place or places where the principal and any interest on
Securities of the series shall be payable;
<PAGE>
(6) the price or prices at which, the period or periods within
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 Issuer,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the price or prices
at which, the period or periods within which and the terms and conditions
upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(8) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the series
may be repaid, in whole or in part, at the option of the Holder thereof;
(9) the period or periods within which, the Conversion Price or
Prices at which (and the adjustments to be made thereto (in the case of
Securities Convertible into Common Stock at the option of the Holders
thereof, only if otherwise than as provided in Section 11.4)) and the
terms and conditions upon which the Securities of the series may be
converted, in whole or in part, into Common Stock, specifying in the case
of Preferred Stock (or Preferred Stock represented by Depositary Shares)
the series designation and title thereof (as determined pursuant to the
applicable Resolution), whether such conversion is mandatory, at the
option of Holders of the Securities of the series or at the option of the
Issuer, and if the Securities of the series may be convertible into
Depositary Shares, the bank or trust company designated as Preferred
Stock Depositary;
(10) if other than Dollars, the coin or currency (including
composite currencies) in which the Securities of the series shall be
denominated and, if different, the coin or currency (including composite
currencies) in which payment of the principal of and/or interest on the
Securities of the series shall be payable;
(11) if the principal of and/or interest on the Securities of the
series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency (including composite currencies) 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;
(12) if the amount of payments of principal of and/or interest on
the Securities of the series may be determined with reference to an index
based on a coin or currency (including composite currencies) other than
that in which the Securities are stated to be payable or with reference
to any other index, the manner in which such amounts shall be determined;
(13) if other than denominations of $1,000 (or if the Securities are
denominated in a currency other than Dollars or in a composite currency,
1,000 units of such other currency or composite currency) and any
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(14) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section
4.1 or provable in bankruptcy pursuant to Section 4.2;
(15) if the Securities of the series are Original Issue Discount
Securities, the price at which and the date on which Securities of the
series are to be issued and the Yield to Maturity at the time of issuance
of such series;
(16) if the Securities are not entitled to the benefits of the
covenants set forth in Section 3.4 or 3.5;
<PAGE>
(17) if the Securities of a series are to be issued in the form of
one or more Global Securities, the name of the Depositary who will act in
respect of such Global Securities and any other provisions relating
thereto not otherwise provided for in this Indenture; and
(18) any other terms of the series which are not inconsistent with
this Indenture.
In the case of Securities of a series issued in tranches, all
Securities of any one tranche shall be substantially identical, except as to
denomination. Except as provided in the preceding sentence, all Securities of
any one series shall be substantially identical except as to denomination,
interest rate and maturity and except as may otherwise be provided in or
pursuant to such Resolution or in any such indenture supplemental hereto. The
applicable Resolution or the applicable supplemental indenture may provide
that Securities of any particular series may be issued at various times, with
different maturities and redemption and repayment provisions (if any) and
bearing interest at different rates, but shall for all purposes under this
Indenture, including, but not limited to, voting and Events of Default, be
treated as Securities of a single series.
Except as otherwise specified pursuant to this Section 2.4 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.5 Authentication and Delivery of Securities. At any time
and from time to time after the execution and delivery of this Indenture, the
Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
make available for delivery such Securities to or upon the written order of
the Issuer, signed by both (a) its chairman, its vice chairman, its president
or any vice president and (b) its treasurer, its controller, its secretary or
any assistant secretary, without any further action by the Issuer. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be
entitled to receive, and (subject to the requirements of the Trust Indenture
Act of 1939) shall be fully protected in relying upon:
(1) a copy of any Resolution or Resolutions relating to such
series, certified by the secretary or an assistant secretary of the
Issuer;
(2) an executed supplemental indenture, if any, relating thereto;
(3) an Officers' Certificate setting forth the form and terms of
the Securities as required pursuant to Sections 2.1 and 2.4,
respectively, and prepared in accordance with the requirements of the
Trust Indenture Act of 1939 and Section 13.5;
(4) an Opinion of Counsel, prepared in accordance with the
requirements of the Trust Indenture Act of 1939 and Section 13.5, which
shall state that (i) if the form of such Securities has been established
by or pursuant to a Resolution as permitted by Section 2.1, that such
form or forms, as the case may be, have been established in conformity
with the provisions of this Indenture, and that the terms of such
Securities have been established by or pursuant to a Resolution as
permitted by Section 2.4 in conformity with the provisions of this
Indenture and that the authentication and delivery of such Securities by
the Trustee is authorized under the provisions of this Indenture and (ii)
that such Securities, when authenticated and delivered by the Trustee and
issued by the Issuer in the manner and subject to any conditions
specified in such Opinion of Counsel will constitute valid and legally
binding obligations of the Issuer, enforceable in accordance with their
terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally and to general principles of
<PAGE>
equity regardless of whether the issue of enforceability is considered in
a proceeding in equity or at law.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer
or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees
and/or Responsible Officers shall determine that such action would expose the
Trustee to personal liability to existing Holders or would adversely affect
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
The Trustee shall not be required to authenticate Securities
denominated in a coin or currency other than that of the United States of
America if the Trustee reasonably determines that such Securities impose
duties or obligations on the Trustee which the Trustee is not able or
reasonably willing to accept; provided that the Trustee, upon the request of
the Issuer, will resign as Trustee with respect to Securities of any series as
to which such a determination is made, prior to the issuance of such
Securities, and will comply with the request of the Issuer to execute and de-
liver a supplemental indenture appointing a successor Trustee pursuant to
Section 7.1.
If the Issuer shall establish pursuant to Section 2.4 that the
Securities of a series or a tranche are to be issued in the form of one or
more Global Securities, then the Issuer shall execute and the Trustee shall,
in accordance with this Section and the order of the Issuer with respect to
such series, authenticate and deliver one or more Global Securities that (i)
shall represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series or such tranche, as
the case may be, issued and not yet cancelled, (ii) shall be registered in the
name of the Depositary for such Global Security or Securities or the nominee
of such Depositary, (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary's instructions and (iv) shall bear such legend,
if any, as shall be required by the Depositary.
Each Depositary of a Global Security designated pursuant to Section
2.4 must, at the time of its designation and at all times while it serves as
Depositary hereunder, be a clearing agency registered under the Securities
Exchange Act of 1934 and any other applicable statute or regulation.
SECTION 2.6 Execution of Securities. The Securities shall be
signed on behalf of the Issuer by the chairman or any vice chairman of its
Board of Directors, its president, any vice president or its treasurer, under
its corporate seal which shall be attested by the secretary or any assistant
secretary of the Issuer. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall
be authenticated and delivered by the Trustee or disposed of by the Issuer,
such Security nevertheless may be authenticated and delivered or disposed of
as though the person who signed such Security had not ceased to be such
officer of the Issuer; and any Security may be signed on behalf of the Issuer
by such persons as, at the actual date of the execution of such Security,
shall be the proper officers of the Issuer, although at the date of the
execution and delivery of this Indenture any such person was not such an
officer.
<PAGE>
SECTION 2.7 Certificate of Authentication. Only such Securities as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one
of its authorized signatories, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Issuer shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered
hereunder and that the Holder is entitled to the benefits of this Indenture.
SECTION 2.8 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as registered
securities without coupons and in denominations as shall be specified as
contemplated by Section 2.4. In the absence of any such specification with
respect to the Securities of any series, the Securities of such series shall
be issuable in denominations of U.S. $1,000 (or, if such Securities are
denominated in a currency other than U.S. dollars or in a composite currency,
1,000 units of such other currency or composite currency) and any multiple
thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of
the Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall
bear interest, if any, from the date, and shall be payable on the dates, in
each case, which shall be specified as contemplated by Section 2.4.
Except as otherwise specified for a particular series pursuant to
Section 2.4, the Person in whose name any Security of any series is registered
at the close of business on any record date (as hereinafter defined)
applicable to a particular series with respect to any interest payment date
for such series shall be entitled to receive the interest, if any, payable on
such interest payment date notwithstanding the cancellation of such Security
upon any registration of any transfer or exchange of such Security subsequent
to the record date and prior to such interest payment date, except if and to
the extent the Issuer shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest
shall be paid to the Persons in whose names Outstanding Securities of such
series are registered at the close of business on a subsequent record date
(which shall be not less than five days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date. The term "record date" as used with respect to any
interest payment date (except a date for payment of defaulted interest) shall
mean the date specified as such in the terms of the Securities of any
particular series, or, if no such date is so specified, if such interest
payment date is the first day of a calendar month, the fifteenth day of the
next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
SECTION 2.9 Registration, Transfer and Exchange. The Issuer will
keep, either at the office or agency designated and maintained by the Issuer
for such purpose in the Borough of Manhattan, The City of New York, in
accordance with the provisions of Section 3.2, or at any of such other offices
or agencies as may be designated and maintained in accordance with the
provisions of Section 3.2, a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Securities of a series as in this Article provided.
Such register shall be in written form in the English language or in any other
form capable of being converted into such form within a reasonable time. At
all reasonable times such register or registers shall be open for inspection
by the Trustee and any Security registrar (as defined below) other than the
Trustee.
Upon due presentation for registration of transfer of any Security
of any series at any such office or agency to be maintained for the purpose as
<PAGE>
provided in Section 3.2, the Issuer shall execute and the Trustee shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Security or Securities of the same series in authorized
denominations for a like aggregate principal amount and having the same
interest rate, maturity and repayment and redemption provisions.
Any Security or Securities of any series (other than a Global
Security, except as set forth below) may be exchanged for a Security or
Securities of the same series in other authorized denominations, in an equal
aggregate principal amount and having the same interest rate, maturity,
redemption and repayment provisions. Securities of any series to be exchanged
shall be surrendered at any office or agency to be maintained by the Issuer
for the purpose as provided in Section 3.2, and the Issuer shall execute and
the Trustee shall authenticate and make available for delivery in exchange
therefor the Security or Securities of the same series and having the same
interest rate, maturity and repayment and redemption provisions which the
Securityholder making the exchange shall be entitled to receive, bearing
numbers or other distinguishing symbols not contemporaneously outstanding.
Each Person designated by the Issuer pursuant to the provisions of Section 3.2
as a Person authorized to register and register transfer of the Security is
sometimes herein referred to as a "Security registrar".
The Issuer will at all times designate one Person (who may be the
Issuer and who need not be a Security registrar) to act as repository of a
master list of names and addresses of the Holders of the Securities (the
"Register"). The Trustee shall act as such repository unless and until some
other Person is, by written notice from the Issuer to the Trustee and each
Security registrar, designated by the Issuer to act as such. The Issuer shall
cause each Security registrar to furnish to such repository, on a current
basis, such information as to all registrations of transfer and exchanges
effected by such registrar, as may be necessary to enable such repository to
maintain the Register on as current a basis as is practicable.
No Person shall at any time be designated as or act as a Security
registrar unless such Person is at such time empowered under applicable law to
act as such and duly registered to act as such under and to the extent
required by applicable law and regulations.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer or exchange in form satisfactory to the Issuer and the Trustee duly
executed by, the Securityholder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities, other than exchanges
pursuant to Section 2.12, 7.5 or 10.3 not involving any registration of
transfer. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer
of (a) any Securities of any series for a period of 15 days next preceding the
selection of Securities of that series to be redeemed, or (b) any Securities
selected, called or being called for redemption or surrendered for repayment
in whole or in part except, in the case of any Security to be redeemed or
repaid in part, the portion thereof not so to be redeemed or repaid.
Notwithstanding any other provision of this Section 2.9, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depository to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
<PAGE>
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under
Section 2.5, the Issuer shall appoint a successor Depositary with respect to
such Securities. If a successor Depositary for such Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice
or becomes aware of such ineligibility, the Issuer's election pursuant to
Section 2.5 that such Securities be represented by one or more Global
Securities shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officers' Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and make
available for delivery definitive Securities of the same series, in any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such
Securities, in exchange for such Global Security or Securities.
The Issuer may at any time, and in its sole discretion, determine
that Securities issued in the form of one or more Global Securities shall no
longer be represented by a Global Security or Securities. In such event the
Issuer will execute, and the Trustee, upon receipt of an Officers' Certificate
for the authentication and delivery of definitive Securities, will
authenticate and make available for delivery definitive Securities of the same
series, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities,
in exchange for such Global Security or Securities.
If specified by the Issuer pursuant to Section 2.5 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part
for definitive Securities of the same series on such terms as are acceptable
to the Issuer and such Depositary. Thereupon, the Issuer shall execute, and
the Trustee shall authenticate and make available for delivery, without
service charge:
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as
requested by such person, in an aggregate principal amount equal to and
in exchange for such person's beneficial interest in the Global Security;
and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for definitive Securities, in
authorized denominations, such Global Security shall be cancelled by the
Trustee or an agent of the Issuer or the Trustee. Definitive Securities
issued in exchange for a Global Security pursuant to this Section 2.9 shall be
registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee or an agent
of the Issuer or the Trustee. The Trustee or such agent shall make such
Securities available for delivery to or as directed by the Persons in whose
names such Securities are so registered.
SECTION 2.10 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen and, in the absence of
notice to the Issuer or the Trustee that any destroyed, lost or stolen
Security has been acquired by a bona fide purchaser, the Issuer may in its
discretion execute and the Trustee shall authenticate and make available for
delivery, a new Security of the same series and of like tenor, bearing a
number or other distinguishing symbol not contemporaneously Outstanding, in
exchange and substitution for the mutilated or defaced Security, or in lieu of
<PAGE>
and substitution for the Security so destroyed, lost or stolen. In every case
the applicant for a substitute Security shall furnish to the Issuer and to the
Trustee (and any agent of the Issuer or Trustee, if requested by the Issuer)
such security or indemnity as may be required by them to indemnify and defend
and to save each of them harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
In case any Security that has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be
destroyed, lost or stolen, the Issuer in its discretion may instead of issuing
a substitute Security, pay or authorize the payment of the same (without
surrender thereof except in the case of a mutilated or defaced Security), if
the applicant for such payment shall furnish to the Issuer and to the Trustee
(and any agent of the Issuer or Trustee, if requested by the Issuer) such
security or indemnity as any of them may require to indemnify and defend and
to save each of them harmless, and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of
such Security and of the ownership thereof.
Every substituted Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen Secu-
rity shall be at any time enforceable by anyone and shall be entitled to all
the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities of such series duly authenticated and delivered hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect
to the replacement or payment of mutilated, defaced or destroyed, lost or
stolen Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the
contrary with respect to the replacement or payment of negotiable instruments
or other securities without their surrender.
SECTION 2.11 Cancellation of Securities Paid, etc. All Securities
surrendered for the purpose of payment, redemption, registration of transfer,
conversion or exchange, or for credit against any payment in respect of a
sinking or analogous fund, if surrendered to the Issuer, any Security regis-
trar, any paying agent, the Conversion Agent or any other agent of the Issuer
or any agent of the Trustee, shall be delivered to the Trustee and promptly
cancelled by it or, if surrendered to the Trustee, shall be promptly cancelled
by it; and no Securities shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Indenture. The Trustee shall
deliver cancelled Securities to the Issuer. If the Issuer shall acquire any
of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.12 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and make available for delivery temporary Securities for
such series (printed, lithographed, typewritten or otherwise reproduced).
Temporary Securities of any series shall be issuable as registered Securities
without coupons, in any authorized denomination, and substantially in the form
of the definitive Securities of such series in lieu of which they are issued
but with such omissions, insertions and variations as may be appropriate for
temporary Securities, all as may be determined by the Issuer. Temporary
Securities may contain such reference to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be authenticated by the
<PAGE>
Trustee upon the same conditions and in substantially the same manner, and
with like effect, as the definitive Securities in lieu of which they are
issued. Without unreasonable delay the Issuer shall execute and shall furnish
definitive Securities of such series and thereupon temporary Securities of
such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose pursuant to
Section 3.2, and the Trustee shall authenticate and make available for
delivery in exchange for such temporary Securities of such series a like
aggregate principal amount of definitive Securities of the same series of
authorized denominations having the same interest rate, maturity and
redemption and repayment provisions, and bearing interest from the same date
as such temporary Securities. Until so exchanged, the temporary Securities of
any series shall be entitled to the same benefits under this Indenture as
definitive Securities of the same series authenticated and delivered
hereunder.
SECTION 2.13 CUSIP Numbers. The Issuer in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to
Securityholders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of and interest, if
any, on each of the Securities of such series at the place or places, at the
respective times and in the manner provided in such Securities. Except as
otherwise provided pursuant to Section 2.4 for Securities of any series, each
installment of interest on the Securities of any series may be paid by mailing
checks for such interest payable to the Person entitled thereto as such
addresses shall appear in the Register.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will designate and maintain in the
Borough of Manhattan, The City of New York, for each series: (a) an office or
agency where the Securities may be presented for payment, (b) an office or
agency where Securities may be presented for conversion into Common Stock of
the Issuer (hereinafter the "Conversion Agent," which term shall include any
additional conversion agents as may be appointed by the Issuer), (c) an office
or agency where the Securities may be presented for registration of transfer
and for exchange as in this Indenture provided and (d) an office or agency
where notices and demands to or upon the Issuer in respect of the Securities
or of this Indenture may be served. In addition to such office or offices or
agency or agencies, the Issuer may from time to time designate and maintain
one or more additional offices or agencies within or outside the Borough of
Manhattan, The City of New York, where the Securities of that series may be
presented for payment or for registration of transfer or for exchange, and the
Issuer may from time to time rescind such designation, as it may deem
desirable or expedient. The Issuer will give to the Trustee written notice of
the location of any such office or agency and of any change of location
thereof. The Issuer hereby designates the New York Location and the Corporate
Trust Office as the initial offices to be maintained by it for such purposes.
In case the Issuer shall fail to maintain any such office or agency or shall
fail to give such notice of the location or of any change in the location
thereof, presentations and demands may be made and notices may be served at
the Corporate Trust Office and the Issuer appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
<PAGE>
SECTION 3.3 Paying Agents. Whenever the Issuer shall appoint a
paying agent or agents other than the Trustee with respect to the Securities
of any series, it will cause each such paying agent to execute and deliver to
the Trustee an instrument in which each such paying agent shall agree with the
Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the
payment of the principal of or interest, if any, on the Securities of
such series (whether such sums have been paid to it by the Issuer or by
any other obligor on the Securities of such 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) that it will give the Trustee notice of any default by the
Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest, if any, on the Securities of
such series when the same shall be due and payable, and
(c) that, at any time during the continuance of any such default
referred to in clause (b) above, upon the written request of the Trustee,
it will forthwith pay to the Trustee all sums so held in trust by such
paying agent.
Whenever the Issuer shall have one or more paying agents with
respect to Securities of any series, it will, prior to each due date of the
principal of or interest, if any, on the Securities of such series, deposit
with a designated paying agent a sum sufficient to pay such principal or
interest, if any, so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal or interest, if any, and
(unless such paying agent is the Trustee) the Issuer will promptly notify the
Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest, if any, on the Securities of such series, set aside, segregate
and hold in trust for the benefit of the Persons entitled to such principal
and interest, if any, a sum sufficient to pay such principal or interest, if
any, so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Issuer will promptly notify the
Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge
with respect to one or more or all series of Securities hereunder, or for any
other reason, pay or cause to be paid to the Trustee all sums held in trust
for any such series by the Issuer or any paying agent hereunder, as required
by this Section, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Sections 9.3 and 9.4.
SECTION 3.4 Limitation on Liens. For the benefit of any series of
Securities issued hereunder (other than as otherwise specified pursuant to
Section 2.4 for any particular series (the "Excluded Series")) the Issuer will
not itself, and will not permit any Restricted Subsidiary to, incur, issue,
assume or guarantee any indebtedness for money borrowed or any other
indebtedness evidenced by notes, bonds, debentures or other similar evidences
of indebtedness for money borrowed (hereinafter in this Section and in Section
3.5 called "Debt") secured by pledge of, or mortgage, deed of trust or other
lien on, any Principal Property owned by the Issuer or any Restricted
Subsidiary, or any shares of stock or Debt of any Restricted Subsidiary (such
pledges, mortgages, deeds of trust and other liens being hereinafter in this
Section and in Section 3.5 called "Mortgage" or "Mortgages"), without
effectively providing that the Securities of all series (together with, if the
<PAGE>
Issuer shall so determine, any other Debt of the Issuer or such Restricted
Subsidiary then existing or thereafter created which is not subordinate to the
Securities) shall be secured equally and ratably with (or prior to) such
secured Debt, so long as such secured Debt shall be so secured, unless, after
giving effect thereto, the aggregate principal amount of all such secured Debt
which would otherwise be prohibited, plus all Attributable Debt of the Issuer
and its Restricted Subsidiaries in respect of sale and leaseback transactions
(as defined in Section 3.5) which would otherwise be prohibited by Section 3.5
would not exceed the sum of 10% of Consolidated Net Tangible Assets; provided,
that this Section shall not apply to, and there shall be excluded from secured
Debt in any computation under this Section, Debt secured by:
(a) Mortgages on property of, or on any shares of stock or Debt of,
any corporation existing at the time such corporation becomes a
Restricted Subsidiary;
(b) Mortgages to secure indebtedness of any Restricted Subsidiary
to the Issuer or to another Restricted Subsidiary;
(c) Mortgages for taxes, assessments or governmental charges or
levies in each case (i) not then due and delinquent or (ii) the validity
of which is being contested in good faith by appropriate proceedings, and
materialmen's, mechanics', carriers', workmen's, repairmen's, landlord's
or other like Mortgages, or deposits to obtain the release of such
Mortgages;
(d) Mortgages arising under an order of attachment or distraint or
similar legal process so long as the execution or enforcement thereof is
effectively stayed and the claims secured thereby are being contested in
good faith;
(e) Mortgages to secure public or statutory obligations or to
secure payment of workmen's compensation or to secure performance in
connection with tenders, leases of real property, bids or contracts or to
secure (or in lieu of) surety or appeal bonds and Mortgages made in the
ordinary course of business for similar purposes;
(f) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, or in
favor of any other country, or any political subdivision thereof, to
secure partial, progress, advance or other payments pursuant to any
contract or statute (including Debt of the pollution control or
industrial revenue bond type) or to secure any indebtedness incurred for
the purpose of financing all or any part of the purchase price or the
cost of construction of the property subject to such Mortgages;
(g) Mortgages on property (including any lease which should be
capitalized on the lessee's balance sheet in accordance with generally
accepted accounting principles), shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation or through purchase or transfer of the properties of a
corporation as an entirety or substantially as an entirety) or to secure
the payment of all or any part of the purchase price or construction cost
or improvement cost thereof or to secure any Debt incurred prior to, at
the time of, or within one year after, the acquisition of such property
or shares or Debt or the completion of any such construction (including
any improvements on an existing property) or the commencement of
commercial operation of such property, whichever is later, for the
purpose of financing all or any part of the purchase price or
construction cost thereof;
(h) Mortgages existing at the date of this Indenture; and
(i) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
<PAGE>
Mortgage referred to in the foregoing clauses (a) to (h), inclusive;
provided, that (i) such extension, renewal or replacement Mortgage shall
be limited to all or a part of the same property, shares of stock or Debt
that secured the Mortgage extended, renewed or replaced (plus
improvements on such property) and (ii) the Debt secured by such Mortgage
at such time is not increased
; and provided further, that these restrictions shall not apply to (i) any
gold-based loan or forward sale, and (ii) Mortgage upon property owned or
leased by the Issuer or any Restricted Subsidiary or in which the Issuer or
any Restricted Subsidiary owns an interest to secure the Issuer's or a
Restricted Subsidiary's proportionate share of any payments required to be
made to any Person incurring the expense of developing, exploring, or
conducting operations for the recovery, processing or sale of the mineral
resources of such owned or leased property and any such loan, arrangement or
payment referred to in clauses (i) and (ii) of this proviso shall not be
deemed to constitute secured Debt and, shall not be included in any
computation under these restrictions.
SECTION 3.5 Limitation on Sales and Leasebacks. For the benefit of
any series of Securities issued hereunder (other than any Excluded Series) the
Issuer will not itself, and it will not permit any Restricted Subsidiary to,
enter into any arrangement with any bank, insurance company or other lender or
investor (not including the Issuer or any Restricted Subsidiary) or to which
any such lender or investor is a party, providing for the leasing by the
Issuer or any such Restricted Subsidiary for a period, including renewals, in
excess of three years, of any Principal Property owned by the Issuer or such
Restricted Subsidiary which has been or is to be sold or transferred more than
270 days after the acquisition thereof or after the completion of construction
and commencement of full operation thereof, by the Issuer or any such Res-
tricted Subsidiary to such lender or investor or to any person to whom funds
have been or are to be advanced by such lender or investor on the security of
such Principal Property (herein referred to as a "sale and leaseback transac-
tion") unless either:
(a) the Issuer or such Restricted Subsidiary could create Debt
secured by a Mortgage on the Principal Property to be leased back in an
amount equal to the Attributable Debt with respect to such sale and
leaseback transaction without equally and ratably securing the Securities
of all series pursuant to Section 3.4, or
(b) the Issuer within 180 days after the sale or transfer shall
have been made by the Issuer or by any such Restricted Subsidiary,
applies an amount equal to the greater of (i) the net proceeds of the
sale of the Principal Property sold and leased back pursuant to such
arrangement or (ii) the fair market value of the Principal Property so
sold and leased back at the time of entering into such arrangement (as
determined by any two of the following: the chairman, the vice chairman,
the president, any vice president, the treasurer, the controller or the
secretary of the Issuer) to (x) the purchase of property, facilities or
equipment (other than the property, facilities or equipment involved in
such sale) having a value at least equal to the net proceeds of such sale
or (y) the retirement of Funded Debt of the Issuer or any Restricted
Subsidiary; provided, that the amount required to be applied to the
retirement of Funded Debt of the Issuer shall be reduced by (i) the
principal amount of any Securities of any series (or, if the Securities
of any series are Original Issue Discount Securities, such portion of the
principal amount as may be due and payable with respect to such series
pursuant to a declaration in accordance with Section 4.1 or if the
Securities of any series provide that an amount other than the face
thereof will or may be payable upon the maturity thereof or a declaration
of acceleration of the maturity thereof, such amount as may be due and
payable with respect to such securities pursuant to a declaration in
accordance with Section 4.1.) delivered within 180 days after such sale
or transfer to the Trustee for retirement and cancellation, and (ii) the
principal amount of Funded Debt, other than the Securities of any series,
<PAGE>
voluntarily retired by the Issuer within 180 days after such sale or
transfer. Notwithstanding the foregoing, no retirement referred to in
this clause (b) may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or any mandatory prepayment provision.
SECTION 3.6 Notice of Default. The Issuer shall file with the
Trustee written notice of the occurrence of any default or Event of Default
within five Business Days of its becoming aware of any such Default or Event
of Default.
SECTION 3.7 Calculation of Original Issue Discount. The Issuer
shall file with the Trustee promptly at the end of each calendar year a
written notice specifying the amount of original issue discount (including
daily rates and accrual periods) accrued on Outstanding Securities as of the
end of such year.
SECTION 3.8 Reports. The Issuer shall comply with the provisions
of Section 314(a) of the Trust Indenture Act of 1939 and shall file with the
Trustee within 45 days after it files them with the Commission and in any
event no later than 60 days after the end of the respective fiscal quarter,
copies of its annual report and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission
may by rules and regulations prescribe) which the Issuer is required to file
with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended.
SECTION 3.9 Compliance Certificates. (a) On or before April 15 in
each year (commencing with the first April 15 which is not less than 60 days
following the first date of issuance of Securities of any series under this
Indenture), the Issuer will file with the Trustee a brief certificate, signed
by the principal executive officer, the principal financial officer, or the
principal accounting officer of the Issuer, stating whether or not the signer
has knowledge of any default by the Issuer in the performance or fulfillment
of any covenant, agreement, or condition contained in this Indenture, and, if
so, specifying each such default of which the signer has knowledge, the nature
thereof, and what action, if any, has been taken and is proposed to be taken
to cure such default. For purposes of this paragraph, such compliance shall
be determined without regard to any period of grace or requirement of notice
provided under this Indenture.
(b) The Issuer also shall comply with the other provisions of
Section 314(a) of the Trust Indenture Act of 1939.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.1 Events of Default. "Event of Default" with respect to
Securities of a particular series wherever used herein, means any one of the
following events and such other events as may be established with respect to
the Securities of such series as contemplated by Section 2.4, continued for
the period of time, if any, and after the giving of notice, if any, designated
in this Indenture or as may be established with respect to such Securities as
contemplated by Section 2.4, as the case may be, unless such event is either
inapplicable or is specifically deleted or modified in, or pursuant to, the
applicable Resolution or in the supplemental indenture under which such series
of Securities is issued, as the case may be, as contemplated by Section 2.4:
(a) default in the payment of any installment of interest, if any,
upon any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period of
30 days, whether or not such payment shall be prohibited by the
provisions of Article Twelve hereof; or
<PAGE>
(b) default in the payment of the principal of any of the
Securities of such series as and when the same shall become due and
payable either at maturity, upon redemption, by declaration or otherwise,
whether or not such payment shall be prohibited by the provisions of
Article Twelve hereof; or
(c) default in the payment of any sinking fund installment as and
when the same shall become due and payable by the terms of the Securities
of such series, whether or not such payment shall be prohibited by the
provisions of Article Twelve hereof; or
(d) failure on the part of the Issuer duly to observe or perform
any other of the covenants or agreements on the part of the Issuer in
respect of the Securities of such series contained in this Indenture
(other than a covenant or agreement in respect of the Securities of such
series a default in the performance of which or a breach of which is
elsewhere in this Section specifically addressed), 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 Issuer by the Trustee or
to the Issuer and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such 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
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Issuer or for all or substantially all of its property
or ordering the winding up or liquidation of its affairs, and such decree
or order shall remain unstayed and in effect for a period of 90
consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian, trustee
or sequestrator (or similar official) of the Issuer or for all or sub-
stantially all of its property, or make any general assignment for the
benefit of creditors.
If an Event of Default with respect to any series of Securities at
the time Outstanding occurs and is continuing, then, and in each and every
such case, unless the principal of all of the Securities of such series shall
have already become due and payable, either the Trustee or the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities of
such series, by notice in writing to the Issuer (and to the Trustee if given
by Securityholders), may declare the entire principal amount (or, if the
Securities of such series are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms of such series or if so
provided pursuant to Section 2.4 for Securities of any series, such other
amount as is specified pursuant thereto) of all of the Securities of such
series and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately
due and payable; provided, however, that the payment of the principal of and
premium, if any, and interest, if any, on the Securities of such series shall
remain subordinated to the extent provided in Article Twelve hereof.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof or if so provided pursuant to Section 2.4 for Securities of any
series, such other amount as is specified pursuant thereto) of the Securities
of any series shall have been so declared due and payable, and before any
<PAGE>
judgment or decree for the payment of the moneys due shall have been obtained
or entered as hereinafter provided,
(a) the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all
the Securities of such series and the principal of any and all Securities
of such series which shall have become due otherwise than by such
declaration of acceleration (with interest upon such principal and, to
the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, if any, at the Overdue Rate
applicable to such series to the date of such payment or deposit), and
all amounts payable to the Trustee pursuant to Section 5.5, and
(b) any and all Events of Default under the Indenture with respect
to such series of Securities other than the non-payment of the principal
of such Securities which shall have become due by such declaration of
acceleration, shall have been cured, waived or otherwise remedied as
provided herein or provision shall have been made therefor to the
satisfaction of the Trustee, then and in every such case the Holders of
not less than a majority in aggregate principal amount of the Securities
of such series then Outstanding, by written notice to the Issuer and to
the Trustee, may rescind and annul such declaration and its consequences
with respect to such series, but no such rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any
right consequent thereon.
For all purposes under this Indenture, if a portion of the principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities
shall be deemed, for all purposes hereunder, to be such portion of the
principal thereof as shall be due and payable as a result of such accelera-
tion, and payment of such portion of the principal thereof as shall be due and
payable as a result of such acceleration, together with interest, if any,
thereon and all other amounts owing thereunder, shall constitute payment in
full of such Original Issue Discount Securities. If the securities of any
series provide the amount other than the face amount thereof will be payable
upon the maturity thereof or a declaration of acceleration of the maturity
thereof, for purposes of this Section 4.1 the principal amount of such
Securities shall be deemed to be such amount as shall be due and payable upon
the acceleration of the of the maturity thereof, except as may otherwise be
provided with respect to such securities pursuant to Section 2.4.
If the Securities of any series provide that an amount other than
the face amount thereof will be payable upon the maturity thereof or upon a
declaration of acceleration of the maturity thereof, for purposes of this
Section 4.1 the principal amount of such Securities shall be deemed to be such
amount as shall be due and payable upon the acceleration of the maturity
thereof, except as may otherwise be provided with respect to such Securities
pursuant to Section 2.4.
SECTION 4.2 Payment of Securities on Default; Suit Therefor. The
Issuer covenants that (a) in case a default shall be made in the payment of
any installment of interest on any of the Securities of any series as and when
such interest shall have become due and payable, and such default shall have
continued for a period of 30 days or (b) in case a default shall be made in
the payment of the principal of any of the Securities of any series as and
when the same shall have become due and payable, whether upon maturity of the
Securities of such series or upon redemption or by declaration or otherwise,
or (c) in case of a default in the making or satisfaction of any sinking fund
payment or analogous obligation when the same becomes due by the terms of the
Securities of any series -- then, upon demand of the Trustee, the Issuer will
pay to the Trustee for the benefit of the Holders of the Securities of such
series the whole amount then due and payable on all Securities of such series
for principal and interest, if any, as the case may be (with interest to the
<PAGE>
date of such payment upon the overdue principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, if any, at the Overdue Rate applicable to Securities
of such series); and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, and any further
amounts payable to the Trustee pursuant to Section 5.5.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest, if any, on the Securities of any series to the
registered Holders, whether or not the principal of and interest, if any, on
the Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any action or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Issuer or any other obligor upon the Securities of
any series under Title 11 of the United States Code or any other similar
applicable Federal or state law, or in case a receiver, trustee in bankruptcy
or similar official shall have been appointed for the property of the Issuer
or such other obligor, or in case of any other similar judicial proceedings
relative to the Issuer or other obligor upon the Securities of any series, or
to the creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the provisions
of this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal (or, if the Securities of any series are Original Issue
Discount Securities or if the Securities of any series provide that an
amount other than the face thereof will or may be payable upon maturity
thereof or upon a declaration of acceleration thereof, such amount as may
be due and payable with respect to such series pursuant to a declaration
in accordance with Section 4.1) and interest, if any, owing and unpaid in
respect of the Securities of any series, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for any amounts payable to the Trustee
pursuant to Section 5.5) and of the Securityholders allowed in any
judicial proceedings relating to the Issuer or other obligor upon the
Securities of any series, or to the creditors or property of the Issuer
or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the Holders of the Securities of any series in any election of
a trustee or a standby trustee in arrangement, reorganization, liqui-
dation or other bankruptcy or insolvency proceedings or of a person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf (after deduction of costs and expenses of collection, and
any further amounts payable to the Trustee pursuant to Section 5.5 and
incurred by it up to the date of distribution); and any trustee in bank-
ruptcy, receiver or other similar official is hereby authorized by each
of the Securityholders to make payments to the Trustee, and, in the event
<PAGE>
that the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee costs and expenses of collection,
and any further amounts payable to the Trustee pursuant to Section 5.5
and incurred by it up to the date of distribution.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture,
or under the Securities of any series, may be enforced by the Trustee without
the possession of any of the Securities of such series or the production
thereof on any trial or other proceedings relative thereto, and any such
action or proceedings instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment, shall be
for the ratable benefit of the Holders of the Securities in respect of which
such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
in which a declaratory judgment of a court may be sought as to the
interpretation or construction of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
Holders of the Securities to which such proceedings relate, and it shall not
be necessary to make any Holders of such Securities parties to any such
proceedings.
SECTION 4.3 Application of Moneys Collected by Trustee. Subject to
Article Twelve, any moneys 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 the case of distribution of such moneys on account of
principal or interest, upon presentation of the several Securities in respect
of which moneys have been collected and stamping (or otherwise noting) thereon
the payment, or issuing Securities in reduced principal amounts in exchange
for the presented Securities of like series (or, in the case of Securities of
a series issued in more than one tranche, of the same tranche) and tenor if
only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of amounts due to the Trustee pursuant to
Section 5.5;
SECOND: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall not have become and be
then due and payable, to the payment of interest, if any, on the Secu-
rities in default in the order of the maturity of the installments of
such interest, with interest (to the extent that such interest has been
collected by the Trustee and to the extent permitted by applicable law)
upon the overdue installments of interest at the Overdue Rate applicable
to such Securities, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall have become and shall
be then due and payable by declaration or otherwise, to the payment of
the whole amount then owing and unpaid upon such Securities for principal
and interest, if any, with interest upon the overdue principal, and (to
the extent that such interest has been collected by the Trustee and to
the extent permitted by applicable law) upon overdue installments of
interest, if any, at the Overdue Rate applicable to such Securities; and
in case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon such Securities, then to the payment of such
principal and interest, if any, without preference or priority of
principal over interest, if any, or of interest, if any, over principal,
<PAGE>
or of any installment of interest, if any, over any other installment of
interest, if any, or of any Security over any other Security, ratably to
the aggregate of such principal and accrued and unpaid interest, if any;
and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other person lawfully entitled thereto.
SECTION 4.4 Proceedings by Trustee. In case an Event of Default
hereunder has occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law
or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of Proceedings.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Trustee, then and
in every such case the Issuer and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and
powers of the Issuer, the Trustee and the Securityholders shall continue as
though no such proceedings had been taken.
SECTION 4.6 Proceedings by Securityholders. No Holder of any
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise upon or under or with respect to this
Indenture, or for the appointment of a trustee in bankruptcy, receiver or
other similar official or for any other remedy hereunder, unless such Holder
previously shall have given to the Trustee written notice of default with
respect to Securities of such series and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in
aggregate principal amount of the Securities of such series then Outstanding
shall have made written request upon the Trustee to institute such action,
suit or proceedings in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Trustee for 60 days after its receipt of such notice, request and offer of in-
demnity shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 4.8 during such 60 day period;
it being understood and intended, and being expressly covenanted by the taker
and Holder of every Security with every other taker and Holder and the
Trustee, that no one or more Holders of any Securities shall have any right in
any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holder of
Securities, or to obtain or seek to obtain priority over or preference to any
other Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series. For the protection and
enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law
or in equity.
SECTION 4.7 Remedies Cumulative and Continuing. Except as provided
in Section 4.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Securityholders 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
<PAGE>
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders of any or all
series, as the case may be, may be exercised from time to time, and as often
as shall be deemed expedient, by the Trustee or by the Securityholders of such
series or all series, as the case may be.
SECTION 4.8 Control by Securityholders. The Holders of not less
than a majority in aggregate principal amount of the Securities of each series
affected at the time Outstanding (with each such series voting separately as a
class) 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 by this Indenture with respect to
Securities of such series. Notwithstanding any of the foregoing, no such
direction shall be otherwise than in accordance with law and the provisions of
this Indenture and (subject to the requirements of the Trust Indenture Act of
1939) the Trustee shall have the right to decline to follow any such direction
if the Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or would be unjustly
prejudicial to the Holders of such Securities not taking part in such
direction, or the Holders of the Securities of any other series, or if the
Trustee in good faith by its board of directors, the executive committee or a
trust committee of directors or responsible officers of the Trustee shall de-
termine that the action or proceedings so directed would involve the Trustee
in personal liability.
Nothing in this Indenture shall impair the right of the Trustee in
its discretion to take any action deemed proper by the Trustee and which is
not inconsistent with such direction or directions by Securityholders.
SECTION 4.9 Waiver of Past Defaults. Prior to the declaration of
the acceleration of the maturity of the Securities of any particular series
the Holders of not less than a majority in aggregate principal amount of the
Securities of such particular series at the time Outstanding may on behalf of
the Holders of all the Securities of such particular series waive any past
default or Event of Default with respect to such particular series and its
consequences, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected as provided in Section 7.2. In the case of any
such waiver, the Issuer, the Trustee and the Holders of the Securities of each
series affected shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Reliance on Documents, Opinions, etc.; No Requirement
for Expenditure of Own Funds. Subject to the provisions of the Trust
Indenture Act of 1939:
(a) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee may
<PAGE>
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, in the absence of bad faith on the
part of the Trustee, upon certificates or opinions conforming to the
requirements of this Indenture; but in the case of any such certificates
or opinions which by any provisions hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically pre-
scribed); and any Resolution may be evidenced to the Trustee by a copy
thereof certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any advice of such
counsel or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of
this Indenture, unless such Securityholders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, 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, consent, order, bond, direction, note or other paper or
document unless requested in writing so to do by the Holders of not less
than a majority in aggregate principal amount of the Securities of any
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expenses or liabilities as a
condition to proceeding; and the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee,
shall be repaid by the Issuer upon demand;
(f) 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 not regularly in its employ and the Trustee shall not be re-
sponsible for any misconduct or negligence on the part of any such agent
or attorney appointed with due care by it hereunder; and
(g) 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.
None of the provisions contained in this Indenture shall be
construed as requiring the Trustee to expend or risk its own funds or
otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers if there shall be
reasonable grounds for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
<PAGE>
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the requirements of the Trust
Indenture Act of 1939.
SECTION 5.2 No Responsibility for Recitals, etc. The recitals
contained herein and in the Securities, except the Trustee's certificates of
authentication, shall be taken as the statements of the Issuer, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representation as to the validity or sufficiency of this
Indenture or of the Securities, provided that the Trustee shall not be
relieved of its duty to authenticate Securities only as authorized by this
Indenture. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.3 Trustee and Agents May Hold Securities. The Trustee or
any agent of the Issuer or the Trustee, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights
it would have if it were not the Trustee or such agent and, subject to the
requirements of the Trust Indenture Act of 1939, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee or such agent.
SECTION 5.4 Moneys to Be Held in Trust. Subject to the provisions
of Sections 9.3 and 9.4, all moneys received by the Trustee or any paying
agent, all money and U.S. Government Obligations deposited with the Trustee
pursuant to Section 9.8 and all money received by the Trustee in respect of
U.S. Government Obligations deposited with the Trustee pursuant to Section
9.8, shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by mandatory provisions of law. Neither
the Trustee nor any paying agent shall be under any liability for interest on
any moneys received by it hereunder, except such as it may agree in writing
with the Issuer to pay thereon. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys shall be
paid from time to time upon the written order of the Issuer signed by one of
its officers, who is one of the officers who may sign an Officers'
Certificate. Money and U.S. Government Obligations so held in trust shall not
be subject to the provisions of Article Twelve of this Indenture.
SECTION 5.5 Compensation and Expenses of Trustee. The Issuer
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as shall be agreed to from time to
time in writing by the Issuer and the Trustee (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust) and, except as otherwise expressly provided, the Issuer will pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accord-
ance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Issuer also
covenants to indemnify the Trustee for, and to hold it harmless against, any
and all loss, liability, damage, claim or expense, including taxes (other than
taxes based on the income of the Trustee) incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against any
claim of liability in the premises. The obligations of the Issuer under this
Section to compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of
this Indenture. Such additional indebtedness shall be secured by a lien prior
to that of the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the Holders of
particular Securities.
<PAGE>
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 4.1(e) or Section 4.1(f), the
expenses (including the reasonable charges and expenses of its counsel) and
the compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
SECTION 5.6 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to the requirements of the Trust Indenture Act of 1939, whenever in
the administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action to be taken hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken, suffered or omitted by it under the provisions of this
Indenture upon the faith thereof.
SECTION 5.7 Eligibility of Trustee. The Trustee for each series of
Securities hereunder shall at all times be a corporation which complies with
the requirements of the Trust Indenture Act of 1939, having a combined capital
and surplus of at least $5,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation at any time
shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect
specified in Section 5.8.
SECTION 5.8 Resignation or Removal of Trustee; Appointment of
Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer. Upon
receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been appointed with respect to any series and have accepted appointment within
30 days after the mailing of notice of resignation or removal, the trustee
resigning or being removed may petition any court of competent jurisdiction
for the appointment of a successor trustee, or any Securityholder who has been
a bona fide Holder of a Security or Securities of the applicable series for at
least six months may, subject to the requirements of the Trust Indenture Act
of 1939, on behalf of himself and all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall cease to be eligible in accordance with the
provisions of Section 5.7 with respect to any series of Securities and
shall fail to resign after written request therefor by the Issuer or by
any Securityholder; or
(ii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator 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;
<PAGE>
then, in any such case, the Issuer by Resolution may remove the Trustee with
respect to the applicable series of Securities (or all series, if required)
and appoint a successor trustee for such series by written instrument, in
duplicate, executed by authority of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee, or, subject to the requirements of the Trust Indenture Act
of 1939, any Securityholder who has been a bona fide Holder of a Security or
Securities 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 removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee with respect to such series.
(c) The Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding may at any time remove the
Trustee with respect to Securities of such series and appoint a successor
trustee with respect to the Securities of such series by delivering to the
Trustee so removed, to the successor trustee so appointed and to the Issuer
the evidence provided for in Section 6.1 of the action in that regard taken by
the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 5.8 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
5.9.
SECTION 5.9 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.8 shall execute,
acknowledge and deliver to the Issuer and to its predecessor Trustee an
instrument accepting such appointment hereunder, and thereupon the resignation
or removal of the predecessor Trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further
act, deed or conveyance, shall become vested with all rights, powers, duties
and obligations with respect to such series of its predecessor hereunder, with
like effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor
trustee, upon payment (or due provision therefor) of any amounts then due it
pursuant to Section 5.5, the predecessor Trustee ceasing to act shall, subject
to Section 9.4, pay over to the successor trustee all moneys at the time held
by it hereunder and shall execute and deliver an instrument transferring to
such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all
instruments in writing for more fully and certainly vesting in and confirming
to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a lien upon all property or funds held or
collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 5.5.
If a successor trustee is appointed with respect to the Securities
of one or more (but not all) series, the Issuer, the predecessor Trustee and
each successor trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any series as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and 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.
<PAGE>
No successor trustee with respect to any series of Securities shall
accept appointment as provided in this Section 5.9 unless at the time of such
acceptance such successor trustee shall, with respect to such series, be
qualified under the provisions of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 5.7.
Upon acceptance of appointment by any successor trustee as provided
in this Section 5.9, the Issuer shall mail notice thereof to the Holders of
Securities of any series for which such successor trustee is acting as trustee
at their last addresses as they shall appear in the Register. If the Issuer
fails to mail such notice within ten days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be
mailed at the Issuer's expense.
SECTION 5.10 Merger, Conversion, Consolidation or Succession to
Business of Trustee. 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 the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided, that such
corporation shall be qualified under the provisions of the Trust Indenture Act
of 1939 and eligible under the provisions of Section 5.7, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture any of the Securities of any series shall
have been authenticated but not delivered, any such successor to the Trustee
by merger, conversion or consolidation may adopt the certificate of
authentication of any predecessor Trustee and deliver such Securities so
authenticated; and, in case at that time any of the Securities of any series
shall not have been authenticated, any successor to the Trustee may authen-
ticate such Securities either in the name of such successor to the Trustee or,
if such successor to the Trustee is a successor by merger, conversion or
consolidation, in the name of any predecessor hereunder; and in all such cases
such certificate shall have the full force which the certificate of the
Trustee shall have as provided anywhere in the Securities of such series or in
this Indenture.
SECTION 5.11 Reports by Trustee to Security-holders. Within 60
days after March 15 in each year, beginning with the March 15 following the
date of this Indenture, the Trustee shall mail to the Securityholders a brief
report dated as of such reporting date in compliance with Section 313(a) of
the Trust Indenture Act of 1939. The Trustee also shall comply with Section
313(b) of the Trust Indenture Act of 1939. The Trustee shall also transmit by
mail all reports as required by Section 313(c) of the Trust Indenture Act of
1939. The Issuer shall promptly notify the Trustee when the Securities are
listed on any stock exchange.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Action by Securityholders. Whenever in this Indenture
it is provided that the Holders of a specified percentage in aggregate
principal amount of the Securities of any or all series may take any action
(including the making of any demand or request, the giving of any notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by such Securityholders in person or by agent or proxy
appointed in writing, or (b) by the record of such Holders of Securities
voting in favor thereof at any meeting of such Securityholders duly called and
held in accordance with the provisions of this Article, or (c) by a
combination of such instrument or instruments and any such record of such a
<PAGE>
meeting of such Securityholders; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments and/or such record are delivered to the Trustee. Proof of
execution of any instrument or of a writing appointing any such agent or proxy
shall be sufficient for any purpose of this Indenture and (subject to the
requirements of the Trust Indenture Act of 1939 and Section 5.1) conclusive in
favor of the Trustee and the Issuer, if made in the manner provided in this
Article.
In determining whether the Holders of the requisite principal amount
of Outstanding Securities of any or all series have taken any action
(including the making of any demand or request), the giving of any notice,
consent or waiver (or the taking of any other action) hereunder and in deter-
mining voting rights of any Holder of a Security hereunder (i) the principal
amount of Original Issue Discount Securities that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.1,
(ii) in the case of Securities which provide that an amount other than the
face amount thereof will or may be payable upon the maturity thereof or upon a
declaration of acceleration of the maturity thereof, the principal amount of
such Securities that shall be deemed to be Outstanding for such purposes shall
be the amount that would be due and payable in respect of such Securities as
of the date of such determination upon a declaration of acceleration of the
maturity thereof pursuant to Section 4.1, and (iii) the principal amount of
any Security, the principal amount of which is denominated in a currency other
than U.S. dollars or in units of currencies or in a composite currency (the
"Specified Currency") shall be deemed to be that amount of U.S. dollars which
could have been obtained by the face amount of such Specified Currency at the
Market Exchange Rate. For purposes of this Section 6.1, "Market Exchange
Rate" means the noon U.S. dollar buying rate in New York City for cable
transfers of the Specified Currency published by the Federal Reserve Bank of
New York; provided, however, in the case of ECUs, "Market Exchange Rate" means
the rate of exchange determined by the Commission of the European Communities
(or any successor thereto) as published in the Official Journal of the
European Communities (such publication or any successor publication, the
"Journal"). If such Market Exchange Rate is not available for any reason with
respect to such Specified Currency, the Trustee shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York or, in the case of ECUs, the rate of exchange as
published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the Specified Currency, which
for purposes of the ECUs shall be Brussels, Belgium, or such other quotations
or, in the case of ECUs, rates of exchange as the Trustee shall deem
appropriate.
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of
manifest error, be conclusive to the extent permitted by law for all purposes
and irrevocably binding upon the Issuer and all Securityholders.
If the Issuer shall solicit from the Securityholders any demand,
request, notice, consent, waiver or the taking of any other action (other than
in accordance with the Securityholders voting provisions set forth in Sections
6.6 through 6.13 of this Article), the Issuer may, at its option, by a
Resolution, fix in advance a record date for the determination of Holders
entitled to give such demand, request, notice, consent or waiver or to take
such other action, but the Issuer shall have no obligation to do so. If such
a record date is fixed, such demand, request, notice, consent, waiver or such
other action may be given before or after the record date, but only the
Securityholders of record at the close of business on the record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite percentage of Securities Outstanding have authorized or agreed or
consented to such demand, request, notice, consent, waiver or taking of any
<PAGE>
other action, and for that purpose the Securities Outstanding shall be
computed as of the record date; provided, that no such demand, request,
notice, consent, waiver or taking of any other action by the Holders on the
record date shall be deemed effective unless it shall become effective pursu-
ant to the provisions of this Indenture not later than six months after the
record date.
SECTION 6.2 Proof of Execution by Security-holders. Subject to the
requirements of the Trust Indenture Act of 1939 and Sections 5.1 and 6.11,
proof of the execution of any instrument by a Securityholder or his agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Securities shall be proved by
the Register or by a certificate of the Person designated by the Issuer to
keep the Register and to act as repository in accordance with the provisions
of Section 2.9.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 6.12.
SECTION 6.3 Holders to Be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
Person in whose name any Security shall be registered in the Register for such
series as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other
writing thereon) for the purpose of receiving payment of or on account of the
principal of and, subject to the provisions of this Indenture, interest, if
any, on such Security and for all other purposes; and neither the Issuer nor
the Trustee nor any agent of the Issuer or the Trustee shall be affected by
any notice to the contrary. All such payments so made to any such Person, or
upon his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any demand,
request, notice, direction, consent or waiver under this Indenture, Securities
which are owned by the Issuer or any other obligor on the Securities with
respect to which such determination is being made or by any Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities with respect to
which such determination is being made shall be disregarded and deemed not to
be Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on
any such demand, request, notice, direction, consent or waiver only Securities
which the Trustee actually knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding for purposes of this Section 6.4 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 Issuer or any other obligor upon
the Securities or any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities. In case of a dispute as to such right, the advice
of counsel shall be full protection in respect of any decision made by the
Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officers' Certificate listing
and identifying all Securities, if any, known by the Issuer to be owned or
held by or for the account of any of the above-described persons; and, subject
to the requirements of the Trust Indenture Act of 1939 and Section 5.1, the
Trustee shall, in the absence of manifest error, accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of
any such determination.
<PAGE>
SECTION 6.5 Right of Revocation of Action Taken. At any time prior
to (but not after) the evidencing to the Trustee, as provided in Section 6.1,
of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number or other distinguishing symbol of which is shown by
the evidence to be included among the serial numbers or other distinguishing
symbols of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns
such Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange
or substitution therefor, irrespective of whether or not any notation in
regard thereto is made upon any such Security. Any action taken by the
Holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in
connection with such action shall be conclusively binding upon the Issuer, the
Trustee and the Holders of all the Securities affected by such action.
SECTION 6.6 Securityholders' Meetings; Purposes. A meeting of
Holders of Securities of any series or all series, as the case may be, may be
called at any time and from time to time pursuant to the provisions of this
Article Six for any of the following purposes:
(1) to give any notice to the Issuer or to the Trustee, or to give
any directions to the Trustee, or to consent to the waiving of any
default or Event of Default hereunder and its consequences, or to take
any other action authorized to be taken by Securityholders pursuant to
any of the provisions of Article Four;
(2) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article Five;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 7.2; or
(4) to take any other action authorized to be taken by or on behalf
of the Holders of any specified aggregate principal amount of the
Securities of any series or all series, as the case may be, under any
other provision of this Indenture or under applicable law.
SECTION 6.7 Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Holders of Securities of any series or all series, as
the case may be, to take any action specified in Section 6.6, to be held at
such time and at such place in the Borough of Manhattan, The City of New York,
as the Trustee shall determine. Notice of every meeting of the Holders of
Securities of any series or all series, as the case may be, setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be mailed to Holders of Outstanding Securities
of each series affected at their addresses as they shall appear in the
Register as of a date not more than 15 days prior to the mailing of such
notice. Such notice shall be mailed not less than 20 nor more than 90 days
prior to the date fixed for the meeting.
Any meeting of the Holders of Securities of any series or all
series, as the case may be, shall be valid without notice if the Holders of
all Securities of any series than Outstanding are present in person or by
proxy, or, if notice is waived before or after the meeting by the Holders of
all Securities of any series outstanding, and if the Issuer and the Trustee
are either present by duly authorized representatives or have, before or after
the meeting waived notice.
SECTION 6.8 Call of Meetings by Issuer or Securityholders. In case
at any time the Issuer, pursuant to a Resolution, or the Holders of at least
10% in aggregate principal amount of the Securities then Outstanding of any or
<PAGE>
all series, as the case may be, shall have requested the Trustee to call a
meeting of the Holders of Securities of such series or all series, as the case
may be, by written request setting forth in reasonable detail the action pro-
posed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Issuer or such Securityholders, in the amount specified above, may determine
the time and the place in said Borough of Manhattan for such meeting and may
call such meeting to take any action authorized in Section 6.6, by mailing
notice thereof as provided in Section 6.7.
SECTION 6.9 Qualifications for Voting. To be entitled to vote at
any meeting of Securityholders a Person shall (a) be a Holder of one or more
Securities with respect to which such meeting is being held or (b) be a Person
appointed by an instrument in writing as proxy by a Holder of one or more such
Securities. The only Persons who shall be entitled to be present or to speak
at any meeting of Securityholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Issuer and its counsel.
SECTION 6.10 Quorum; Adjourned Meetings. The Persons entitled to
vote a majority in aggregate principal amount of the Securities of the
relevant series at the time Outstanding shall constitute a quorum for the
transaction of all business specified in Section 6.6. No business shall be
transacted in the absence of a quorum (determined as provided in this Section
6.10). In the absence of a quorum within 30 minutes after the time appointed
for any such meeting, the meeting shall, if convened at the request of the
Holders of Securities (as provided in Section 6.8), be dissolved. In any
other case the meeting shall be adjourned for a period of not less than ten
days as determined by the chairman of the meeting. In the absence of a quorum
at any such adjourned meeting, such adjourned meeting shall be further
adjourned for a period of not less than ten days as determined by the chairman
of the meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 6.7, except that such notice must be mailed not
less than five days prior to the date on which the meeting is scheduled to be
reconvened.
Any Holder of a Security who has executed in person or by proxy and
delivered to the Trustee an instrument in writing complying with the
provisions of Section 6.2 shall be deemed to be present for the purposes of
determining a quorum and be deemed to have voted; provided, that such Holder
of a Security shall be considered as present or voting only with respect to
the matters covered by such instrument in writing.
SECTION 6.11 Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Securityholders, in regard to proof of the
holding of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall determine.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Issuer or by Securityholders as provided in Section 6.8, in which case the
Issuer or the Securityholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by the vote of the Holders
of a majority of the principal amount of the Outstanding Securities present at
the meeting.
Subject to the provisions of Section 6.4, at any meeting each Holder
of Securities with respect to which such meeting is being held or proxy shall
be entitled to one vote for each U.S. $1,000 (or if any Securities are
denominated in a currency other than U.S. dollars or in units of currencies or
in a composite currency, the equivalent of U.S. $1,000 in the applicable
currency, units of currencies or composite currency calculated using the
<PAGE>
market Exchange Rate) principal amount (or in the case of Original Issue
Discount Securities or, in the case of Securities which provide that an amount
other than the face amount thereof will or may be payable upon the maturity
thereof or upon a declaration of acceleration of the maturity thereof, such
principal amount to be determined as provided in the definition of
"Outstanding" in Section 1.1) of such Securities held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any such Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of such Securities held by
him or instruments in writing as aforesaid duly designating him as the Person
to vote on behalf of other such Securityholders. Any meeting of Holders of
Securities with respect to which a meeting was duly called pursuant to the
provisions of Section 6.7 or 6.8 may be adjourned from time to time by the
Holders of a majority of the principal amount of the Outstanding Securities
present, whether or not constituting a quorum, and the meeting may be held as
so adjourned without further notice.
SECTION 6.12 Voting. The vote upon any resolution submitted to any
meeting of Holders of Securities with respect to which such meeting is being
held shall be by written ballots on which shall be subscribed the signatures
of such Holders of Securities or of their representatives by proxy and the
principal amount (in the case of Original Issue Discount Securities or, in the
case of Securities which provide that an amount other than the face amount
thereof will or may be payable upon the maturity thereof or upon a declaration
of acceleration of the maturity thereof, such principal amount to be deter-
mined as provided in the definition of "Outstanding" in Section 1.1) and
number or numbers or other distinguishing symbol or symbols of such Securities
held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary
of the meeting their verified written reports in duplicate of all votes cast
at the meeting. A record in duplicate of the proceedings of each meeting of
Securityholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the notice of
the meeting and showing that said notice was mailed as provided in Section
6.7. The record shall show the principal amount of the Securities (in the
case of Original Issue Discount Securities or, in the case of Securities which
provide that an amount other than the face amount thereof will or may be
payable upon the maturity thereof or upon a declaration of acceleration of the
maturity thereof, such principal amount to be determined as provided in the
definition of "Outstanding" in Section 1.1) voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Issuer and the other to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 6.13 No Delay of Rights by Meeting. Nothing in this
Article Six shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Securityholders of any or all series or any rights
expressly or impliedly conferred hereunder to make such call, any hindrance or
delay in the exercise of any right or rights conferred upon or reserved to the
Trustee or to the Securityholders of any or all such series under any of the
provisions of this Indenture or of the Securities.
SECTION 6.14 Written Consent in Lieu of Meeting. The written
authorization or consent by the Holders of the requisite percentage in
aggregate principal amount of Outstanding Securities of one or more series
herein provided, entitled to vote at any such meeting, evidenced as provided
in Section 6.1 and filed with the Trustee, shall be effective in lieu of a
<PAGE>
meeting of the Holders of Securities of such series, with respect to any
matter provided for in this Article Six.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by, or pursuant to a Resolution,
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act of 1939 as in force at the date of the execution
thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or
assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the Issuer
pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee
shall consider to be for the benefit of the Holders of one or more series
of Securities (and if such covenants, restrictions, conditions or
provisions are to be for the benefit of less than all series of
Securities, stating that such covenants, restrictions, conditions or
provisions are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Issuer;
(d) to add additional Events of Default and to provide with respect
thereto for any particular periods of grace after default (which may be
shorter or longer than that allowed in the case of other defaults) or for
immediate enforcement upon such default or for any limitation of the
remedies available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of Securities
in bearer form (including Securities registrable as to principal only)
with or without interest coupons and to provide for exchangeability of
such Securities with the Securities of the same series or tranche, as the
case may be, issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective
or inconsistent with any other provision contained herein or in any
supplemental indenture; or to change or eliminate any provision or to
make such other provisions in regard to matters or questions arising
under this Indenture or under any supplemental indenture as the Issuer
may deem necessary or desirable and which shall not adversely affect the
interests of the Holders of the Securities at the time Outstanding;
(g) to establish the form or terms of Securities of any series as
permitted by Sections 2.1 and 2.4; 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 to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant
to the requirements of Section 5.9.
<PAGE>
Upon the request of the Issuer, accompanied by a copy of a
Resolution certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, the Trustee
shall join with the Issuer in the execution of any such supplemental
indenture, to make any further appropriate agreements and stipulations which
may be therein contained and to accept the conveyance, transfer, assignment,
mortgage or pledge of any property thereunder, but the Trustee shall not be
obligated to (but may in its discretion) enter into any such supplemental
indenture which adversely affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this
Section may be executed by the Issuer and the Trustee without the consent of
the Holders of any of the Securities at the time Outstanding, notwithstanding
any of the provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Six) of
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected by such supplemental indenture (all such
series voting as a single class) at the time Outstanding, the Issuer, when
authorized by, or pursuant to a Resolution, and the Trustee may, from time to
time and at any time, enter into an indenture or indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act of
1939 as in force at the date of execution thereof) for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights and obligations of the Issuer and the rights of the
Holders of the Securities of all such series; provided, that no such
supplemental indenture shall (a) extend the fixed maturity of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption or
reduce the Overdue Rate thereof or make the principal thereof or interest
thereon payable in any coin or currency other than that provided in the
Security or reduce the amount of the principal of an Original Issue Discount
Security (or a Security that provides that an amount other than the face
amount thereof will or may be payable upon a declaration of acceleration of
the maturity thereof) that would be due and payable upon an acceleration of
the maturity thereof pursuant to Section 4.1 or the amount thereof provable in
bankruptcy pursuant to Section 4.2, or impair, if the Securities provide
therefor, any right of repayment at the option of the Securityholder, or alter
adversely or eliminate the right, if any, of a Holder of a Security to convert
the same into Common Stock at the Conversion Price set forth therein or upon
the terms provided in this Indenture, or impair the right to institute suit
for the enforcement of any such payment on or after the maturity thereof (or,
in case of redemption, on or after the Redemption Date), or for the
enforcement of the conversion of any Security that is convertible at the
option of a Holder thereof into Common Stock without the consent of the Holder
of each Security so affected, (b) reduce the aforesaid percentage of
Securities the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security so
affected, or (c) modify any of the provisions of Article Twelve in a manner
adverse to the Holders of the Securities.
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 Securityholders of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Securityholders of any other series. The preceding sentence shall not,
however, raise any inference as to whether or not a particular series is
affected by any supplemental indenture not referred to in such sentence.
Upon the request of the Issuer, accompanied by a copy of a
Resolution certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the
<PAGE>
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid and other documents, if any, required by Section 6.1, the Trustee
shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture adversely affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders
under this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 7.2, the
Issuer shall mail a notice thereof to the Holders of Securities of each series
affected thereby at their addresses as they shall appear in the Register,
setting forth in general terms the substance of such supplemental indenture.
Any failure of the Issuer to mail such notice, or any defect therein, shall
not, however, in any way impair or affect the validity of any such supple-
mental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, du-
ties and immunities under this Indenture of the Trustee, the Issuer and the
Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 7.4 Certain Documents to Be Given to Trustee. The Trustee,
subject to the requirements of the Trust Indenture Act of 1939 and Section
5.1, may receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article Seven complies with the requirements of this Article Seven.
SECTION 7.5 Notation on Securities. Securities of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article Seven may bear a notation in form
approved by the Trustee for such series as to any matter provided for by such
supplemental indenture or as to any action taken at any such meeting. If the
Issuer or the Trustee shall so determine, new Securities of any series so
modified as to conform, in the opinion of the Trustee and the Issuer, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared and executed by the Issuer, authenticated by the Trustee and
delivered in exchange for the Securities of such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER,
SALE, CONVEYANCE AND LEASE
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall prevent
any consolidation or merger of the Issuer with or into any other entity or
entities (whether or not affiliated with the Issuer), or successive
consolidations or mergers in which the Issuer or its successor or successors
shall be a party or parties, or shall prevent any sale, conveyance or lease of
all or substantially all the property of the Issuer, to any other entity
(whether or not affiliated with the Issuer) authorized to acquire and operate
the same; provided, however, and the Issuer hereby covenants and agrees, that
upon any such consolidation, merger, sale, conveyance or lease, (i) the due
<PAGE>
and punctual payment of the principal of and interest, if any, on all of the
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Issuer, shall be expressly assumed, by supplemental indenture
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the entity (if other than the Issuer) formed by such consolidation, or into
which the Issuer shall have been merged, or by the entity which shall have
acquired or leased such property and (ii) the Issuer or such successor entity,
as the case may be, shall not, immediately after such merger or consolidation,
or such sale, conveyance or lease, be in default in the performance of any
such covenant or condition.
SECTION 8.2 Successor Corporation to Be Substituted. In case of
any consolidation, merger, sale, conveyance or lease referred to in Section
8.1 and upon the assumption by the successor entity, by supplemental inden-
ture, executed and delivered to the Trustee and satisfactory in form to the
Trustee, of the due and punctual payment of the principal of and interest, if
any, on all of the Securities and the due and punctual performance of all of
the covenants and conditions of this Indenture to be performed by the Issuer,
such successor entity shall succeed to and be substituted for the Issuer, with
the same effect as if it had been named herein as the party of the first part.
Such successor entity thereupon may cause to be signed, and may issue either
in its own name or in the name of Newmont Mining Corporation any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
entity instead of the Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Issuer to the Trustee for authentication, and
any Securities which such successor entity thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities so issued
shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Securities had been
issued at the date of the execution hereof. In the event of any such sale or
conveyance, but not any such lease, the Issuer or any successor entity which
shall theretofore have become such in the manner described in this Article
Eight shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be dissolved and liquidated.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form (but not in substance) may be made
in the Securities thereafter to be issued as may be appropriate.
SECTION 8.3 Opinion of Counsel and Officers' Certificate to Be
Given to Trustee. The Trustee, subject to the requirements of the Trust
Indenture Act of 1939 and Section 5.1, may receive an Opinion of Counsel and
Officers' Certificate as conclusive evidence that any such consolidation,
merger, sale, conveyance or lease and any such assumption complies with the
provisions of this Article Eight.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS
SECTION 9.1 Satisfaction and Discharge of Indenture. If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any particular series Outstanding hereunder
(other than Securities which have been mutilated, defaced, destroyed, lost or
stolen and which have been replaced or paid as provided in Section 2.10 or in
lieu of or in substitution for which other Securities shall have been
authenticated and delivered) as and when the same shall have become due and
payable, or (b) the Issuer shall have delivered to the Trustee for
cancellation all Securities of such series theretofore authenticated (other
<PAGE>
than any Securities of such series which shall have been mutilated, defaced,
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.10 or in lieu of or in substitution for which other
Securities shall have been authenticated and delivered) and not theretofore
cancelled, or (c)(i) all the Securities of such series not theretofore
cancelled or delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year
or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii)
the Issuer shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Issuer in accordance with Section 9.4)
sufficient to pay at maturity or upon redemption all Securities of such series
not theretofore delivered to the Trustee for cancellation (other than any
Securities of such series which shall have been mutilated, defaced, destroyed,
lost or stolen which have been replaced or paid as provided in Section 2.10 or
in lieu of or in substitution for which other Securities shall have been
authenticated and delivered), including principal and interest, if any, due or
to become due to such date of maturity or the date fixed for redemption, as
the case may be, and if, in any such case, the Issuer shall also pay or cause
to be paid all other sums payable hereunder by the Issuer with respect to
Securities of such series, then this Indenture shall cease to be of further
effect with respect to Securities of such series (except as to (i) rights of
registration of transfer and exchange, and the Issuer's right of optional
redemption, (ii) substitution of mutilated, defaced, destroyed, lost or stolen
Securities, (iii) rights of Securityholders to receive payments of principal
thereof and interest, if any, thereon, and remaining rights of the
Securityholders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations and immunities of the Trustee hereunder, including its
rights under Section 5.5 and (v) the rights of the Securityholders of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them), and the Trustee, on demand of the
Issuer accompanied by an Officers' Certificate and an Opinion of Counsel and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture with respect
to such series.
SECTION 9.2 Application by Trustee of Funds Deposited for Payment
of Securities. Subject to Section 9.4, all moneys deposited with the Trustee
pursuant to Section 9.1 shall be held in trust and applied by it to the
payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Persons entitled thereto for the
payment or redemption of which such moneys have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest,
if any.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture with respect
to Securities of any series, all moneys then held by any paying agent, other
than the Trustee, under the provisions of this Indenture with respect to such
series of Securities shall, upon demand of the Issuer, be repaid to it or paid
to the Trustee and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest, if any, on
any Security of any series and not applied but remaining unclaimed for two
years after the date upon which such principal or interest, as the case may
be, shall have become due and payable, shall, upon the written request of the
Issuer and unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of such Security
of such series shall, unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property laws, thereafter look
<PAGE>
only to the Issuer for any payment which such Holder may be entitled to col-
lect.
SECTION 9.5 Issuer's Option to Effect Defeasance or Covenant
Defeasance. The Issuer may at its option by or pursuant to a Resolution, at
any time, with respect to the Securities of any series, elect to have either
Section 9.6 or Section 9.7 be applied to the Outstanding Securities of such
series upon compliance with the conditions set forth below.
SECTION 9.6 Defeasance and Discharge. Upon the Issuer's exercise
of its option to utilize the provisions of this Section 9.6 and upon
compliance with Section 9.8, the Issuer shall be deemed to have been
discharged from its obligations with respect to the Outstanding Securities of
such series on the date the conditions set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Issuer shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as
such Securities are concerned (and the Trustee, at the expense of the Issuer,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of such series
to receive, solely from the trust fund described in Section 9.8 and as more
fully set forth in such Section, payments in respect of the principal of and
interest on such Securities when such payments are due, (B) the Issuer's
obligations with respect to such Securities under Sections 2.9, 2.10, 2.12,
3.2 and 3.3 and under Article Eleven, (C) the rights, powers, trusts, duties,
and immunities of the Trustee under Sections 2.10, 2.11, 2.12, 4.3, 5.5 and
9.4, and otherwise the duty of the Trustee to authenticate Securities of such
series issued on registration of transfer or exchange and (D) this Article
Nine. Subject to compliance with this Article Nine, the Issuer may exercise
its option under this Section 9.6 notwithstanding the prior exercise of its
option under Section 9.7 with respect to the Securities of such series.
SECTION 9.7 Covenant Defeasance. Upon the Issuer's exercise of its
option to utilize the provisions of this Section 9.7 and upon compliance with
Section 9.8, the Issuer shall be released from its obligations under Sections
3.4 and 3.5 and Section 4.1(d) with respect to the Outstanding Securities of
such series on and after the date the conditions set forth below are satisfied
(hereinafter, "covenant defeasance"). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of such
series, the Issuer may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section
with respect to it, whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 9.8 Conditions to Defeasance or Covenant Defeasance. The
following shall be the conditions to application of either Section 9.6 or
Section 9.7 to the Outstanding Securities of such series:
(a) The Issuer shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the
requirements of Section 5.7 who shall agree to comply with the provisions
of this Article Nine applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations
which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (C) a
combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to
<PAGE>
pay and discharge, (i) the principal of and each installment of principal
of and interest on the Outstanding Securities of such series on the
stated maturity of such principal or installment of principal or interest
and (ii) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the day on
which such payments are due and payable in accordance with the terms of
this Indenture and of such Securities. For this purpose, "U.S.
Government Obligations" means securities that are (x) direct obligations
of the United States of America for the payment of which its full faith
and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America, which,
in either case, are not callable or redeemable at the option of the
issuer thereof, and shall also include a 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 Obligation
or a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of the
Holder of such 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 Obligation or
the specific payment of principal of or interest on the U.S. Government
Obligation evidenced by such depository receipt.
(b) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to the Securities
of such series shall have occurred and be continuing on the date of such
deposit.
(c) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting interest
for purposes of the Trust Indenture Act of 1939 with respect to any
securities of the Issuer.
(d) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other agreement or instrument to which the Issuer is a party or by
which it is bound.
(e) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.
(f) In the case of an election under Section 9.6, the Issuer shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have
been the case if such defeasance had not occurred.
(g) In the case of an election under Section 9.7, the Issuer shall
have delivered to the Trustee an Opinion of Counsel to the effect that
the Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal income
tax on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not occurred.
<PAGE>
(h) The Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
9.6 or the covenant defeasance under Section 9.7 (as the case may be)
have been complied with.
SECTION 9.9 Deposited Money and U.S. Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
Section 9.4, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee --
collectively, for purposes of this Section 9.9, the "Trustee") pursuant to
Section 9.8 in respect of the Outstanding Securities of such series shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or through
any paying agent (including the Issuer acting as its own paying agent) as the
Trustee may determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal and interest, but such money
need not be segregated from other funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 9.8 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities of such series.
Anything in this Article Nine to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon the Issuer's
written request any money or U.S. Government Obligations held by it as
provided in Section 9.8 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
ARTICLE TEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 10.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity and to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.4 for Securities of such series.
SECTION 10.2 Notice of Redemption; Selection of Securities. In
case the Issuer shall desire to exercise any right to redeem all or any part
of the Securities of any series in accordance with their terms, the Issuer
shall fix a date for redemption and shall notify the Trustee in writing, at
least 45 days before such redemption date. The Issuer, or at the request and
at the expense of the Issuer, the Trustee, shall mail a notice of such
redemption, at least 30 days and not more than 60 days prior to the date fixed
for redemption, to the Holders of Securities of such series so to be redeemed
in whole or in part at their last addresses as they shall appear in the
Register. Any notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice. Failure to give notice by mail, or any defect in the
notice, to the Holder of any Security of a series designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the CUSIP
number of the Securities, if any, the date fixed for redemption, the
redemption price, the Conversion Price, the place or places of conversion and
of payment, that if Securities of the series being redeemed are convertible at
the option of the Holders thereof, unless otherwise provided pursuant to
<PAGE>
Section 2.4 for Securities of such series, Securities called for redemption
may be converted at any time before the close of business three Business Days
prior to the date fixed for redemption and if not converted prior to the close
of business on such date, the right of conversion will be lost, that Holders
who want to convert Securities must satisfy the requirements set forth in the
terms thereof, that payment will be made upon presentation and surrender of
such Securities, that any interest accrued to the date fixed for redemption
will be paid as specified in such notice and that on and after said date any
interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all of the Outstanding Securities of a series are to be
redeemed, the notice of redemption shall specify the number or numbers or
distinguishing symbol or symbols of the Securities to be redeemed. In case
any Security of a series is to be redeemed in part only the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
Prior to the redemption date specified in the notice of redemption
given as provided in this Section, the Issuer will deposit with the Trustee or
with one or more paying agents (or, if the Issuer is acting as its own paying
agent, segregate and hold in trust as required by the Trust Indenture Act of
1939) an amount of money (in the currency or units of currencies or composite
currency in which the Securities so called for redemption are denominated or
an appropriate equivalent thereof) sufficient to redeem on the redemption date
all the Securities of such series or portions thereof so called for redemption
at the appropriate redemption price, together with accrued interest to the
date fixed for redemption. If less than all the Outstanding Securities of a
series are to be redeemed (or less than the full principal amount of each
Security in such series is to be redeemed), the Issuer will deliver to the
Trustee at least 60 days prior to the date fixed for redemption (or such
shorter period if acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of Securities to be redeemed and, if the
Trustee is not acting as the repository of the Register for such series, a
current list of all Outstanding Securities of such series.
If less than all the Outstanding Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part; however, if less than all the Securities of any series with differing
issue dates, interest rates and stated maturities are to be redeemed, the
Issuer in its sole discretion shall select the particular Securities to be
redeemed and shall notify the Trustee in writing thereof at least 45 days
prior to the relevant redemption date. Except as otherwise specified for
Securities of a particular series pursuant to Section 2.4, Securities may be
redeemed in part in amounts equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series 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 of any
series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which
has been or is to be redeemed.
SECTION 10.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as provided in Section 10.2, the
Securities or portions of Securities specified in such notice shall become due
and payable on the date and at the place or places stated in such notice at
the applicable redemption price, together with interest accrued to the date
fixed for redemption, and on and after said date (unless the Issuer shall
default in the payment of such Securities or portions thereof at the
redemption price, together with interest accrued to said date) interest on the
Securities or portions of Securities so called for redemption shall cease to
<PAGE>
accrue and, except as provided in Sections 5.4 and 9.4, such Securities shall
cease from and after the date fixed for redemption to be entitled to any
benefit or security under this Indenture, and the Holders of such Securities
shall have no right in respect of such Securities except the right to receive
the redemption price thereof and unpaid interest to the date fixed for
redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions
thereof shall be paid and redeemed by the Issuer at the applicable redemption
price, together with interest accrued thereon to the date fixed for
redemption; provided, that if the date fixed for redemption is an interest
payment date, the interest due on that date shall be payable to the Holders of
such Securities registered as such on the relevant record date according to
their terms.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal thereof so to be redeemed
shall, until paid or duly provided for, bear interest from the date fixed for
redemption at the Overdue Rate applicable to such series.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the Holder thereof, at the expense of the
Issuer, a new Security or Securities of such series, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Security so presented.
SECTION 10.4 Conversion Arrangement on Call for Redemption. If in
connection with any redemption of Securities of any series with respect to
which the Holders have the right to convert such Security into Common Stock if
any, the Holders thereof do not elect to convert such Securities, and the
Issuer may arrange for the purchase and conversion of such Securities by an
agreement with one or more investment banking firms or other purchasers to
purchase such Securities by paying to the Trustee in trust for the Holders,
not later than the close of business three Business Days prior to the date
fixed for redemption, an amount not less than the applicable redemption price,
together with interest accrued to the date fixed for redemption, of such
Securities. Notwithstanding anything to the contrary contained in this
Article Ten, the obligation of the Issuer to pay the redemption price of such
Securities, together with interest accrued to the date fixed for redemption,
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers. If such an agreement is made, any Securities not
duly surrendered for conversion by the Holders thereof may, at the option of
the Issuer, be deemed, to the fullest extent permitted by law, acquired by
such purchasers from such Holders and (notwithstanding anything to the
contrary contained in Article Eleven) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the date
fixed for redemption, subject to payment by the purchasers as specified above.
The Trustee shall hold and dispose of any such amount paid to it in the same
manner as it would moneys deposited with it by the Issuer for the redemption
of Securities. Without the Trustee's prior written consent, no arrangement
between the Issuer and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Issuer agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out or in connection with any
such arrangement for the purchase and conversion of any Securities between the
Issuer and such purchasers to which the Trustee has not consented in writing,
including the costs and expenses incurred by the Trustee in the defense of any
claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations
under this Indenture.
SECTION 10.5 Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and
certificate number or other distinguishing symbol in a written statement
<PAGE>
signed by an authorized officer of the Issuer and delivered to the Trustee at
least 10 days prior to the date on which Securities are to be selected for
redemption as being owned of record and beneficially by, and not pledged or
hypothecated by, either (a) the Issuer or (b) an entity specifically identi-
fied in such written statement directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer.
SECTION 10.6 Mandatory and Optional Sinking Funds. 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". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Issuer may at
its option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such
series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.11, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
which have been converted or which have been redeemed by the Issuer through
any optional redemption provision contained in the terms of Securities of such
series. Securities so delivered or credited shall be received or credited by
the Trustee at the sinking fund redemption price specified in such Securities,
and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
On or before the sixtieth day next preceding each sinking fund
payment date for any series of Securities, the Issuer will deliver to the
Trustee a certificate of the Issuer (which need not contain the statements
required by the Trust Indenture Act of 1939) signed by an officer of the
Issuer who is one of the officers authorized to sign an Officers' Certificate
(a) specifying the portion, if any, of the mandatory sinking fund payment to
be satisfied by payment of cash and the portion, if any, to be satisfied by
credit of Securities of such series, (b) stating that none of such Securities
has theretofore been so credited, (c) stating that no Event of Default with
respect to such series has occurred (which has not been waived or cured) and
is continuing and (d) stating whether or not the Issuer intends to exercise
its right to make an optional sinking fund payment with respect to such series
and, if so, specifying the amount of such optional sinking fund payment which
the Issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.11 to the Trustee
with such certificate. Such certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become obligated to make all the cash
payments or payments therein referred to, if any (which cash may be deposited
with the Trustee or with one or more paying agents or, if the Issuer is acting
as its own paying agent, segregated and held in trust as required by the Trust
Indenture Act of 1939), on or before the next succeeding sinking fund payment
date. Failure of the Issuer, on or before any such sixtieth day, to deliver
such certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
<PAGE>
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $100,000 or, if payments on Securities of such series are to be made in
a currency other than Dollars or in units or composites of two more
currencies, the equivalent thereof (based upon the Market Exchange Rate on the
sixtieth day preceding the relevant sinking fund payment date or if the Market
Exchange Rate is not available for such date, the immediately preceding date
for which the Market Exchange Rate is available) in the relevant currency or
unit or composite currency (or such other amount as is specified for a
particular series of Securities pursuant to Section 2.4), or a lesser sum if
the Issuer shall so request, with respect to the Securities of any particular
series, such cash shall be applied by the Trustee (or by the Issuer if the
Issuer is acting as its own paying agent) on the sinking fund payment date on
which such payment is made (or, if such payment is made before a sinking fund
payment date, on the next sinking fund payment date following the date of such
payment) to the redemption of such Securities at the sinking fund redemption
price specified in such Securities for operation of the sinking fund together
with accrued interest, if any, to the date fixed for redemption. If such
amount shall be $100,000 or, if payments on Securities of such series are to
be made in a currency other than Dollars or in units or composites of two more
currencies, the equivalent thereof (based upon the Market Exchange Rate on the
sixtieth day preceding the relevant sinking fund payment date or if the Market
Exchange Rate is not available for such date, the immediately preceding date
for which the Market Exchange Rate is available) in the relevant currency or
unit or composite currency (or such other amount as is specified for the
particular series pursuant to Section 2.4), or less and the Issuer makes no
such request then it shall be carried over until a sum in excess of $100,000,
or the equivalent thereof in the relevant currency or unit or composite
currency, is available.
The Trustee shall select, in the manner provided in Section 10.2,
for redemption on such sinking fund payment date, Securities of such series
with respect to which cash payment of the applicable sinking fund redemption
price will be made and shall (if requested in writing by the Issuer) inform
the Issuer of the serial numbers or other distinguishing symbols of the
Securities of such series (or portions thereof) so selected. If the Trustee
shall be required to select Securities of any series for the sinking fund and
is not acting as repository of the Register for such series, at least 60 days
prior to the sinking fund payment date the Issuer shall furnish to the Trustee
a current list of all Outstanding Securities of such series. Securities of
any series which are (a) owned by the Issuer or an entity actually known by
the Trustee to be directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer, as shown by the Register,
and not known to the Trustee to have been pledged or hypothecated by the
Issuer or any such entity or (b) identified in an Officers' Certificate at
least 60 days prior to the sinking fund payment date as being beneficially
owned by, and not pledged or hypothecated by, the Issuer or an entity directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer, shall be excluded from Securities of such series
eligible for selection for redemption. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so notify the Trustee in
writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 10.2, except that the
notice of redemption shall also state that the Securities are being redeemed
by operation of the sinking fund (and with the effect provided in Section
10.3) for the redemption of Securities of such series which, if applicable, is
in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated
by the Trustee (or by the Issuer if the Issuer is acting as its own paying
agent) to the redemption of Securities of such series shall be added to the
next cash sinking fund payment received by the Trustee (or if the Issuer is
acting as its own paying agent, segregated and held in trust as required by
the Trust Indenture Act of 1939) for such series and, together with such
payment (or such amount so segregated), shall be applied in accordance with
<PAGE>
the provisions of this Section 10.6. Any and all sinking fund moneys held by
the Trustee (or if the Issuer is acting as its own paying agent, segregated
and held in trust as required by the Trust Indenture Act of 1939) on the
stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied by the
Trustee (or by the Issuer if the Issuer is acting as its own paying agent),
together with other moneys, if necessary, sufficient for the purpose, to the
payment of the principal of, and interest on, the Securities of such series at
maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash (or if the Issuer is acting as its own paying agent will
segregate and hold in trust as required by the Trust Indenture Act of 1939) or
shall otherwise provide for the payment of all interest accrued to the date
fixed for redemption on Securities (or portions thereof) to be redeemed on
such sinking fund payment date.
Neither the Issuer nor the Trustee shall redeem or cause to be
redeemed any Securities of a series with sinking fund moneys or mail any
notice of redemption of Securities for such series by operation of the sinking
fund during the continuance of a default in payment of interest, if any, on
such Securities or of any Event of Default (other than an Event of Default
occurring as a consequence of this paragraph, with respect to such Securities)
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee (or the Issuer if the Issuer is acting
as its own paying agent) shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer (or the Issuer shall have
segregated) a sum sufficient for such redemption. Except as aforesaid, any
moneys in the sinking fund for such series at the time when any such default
or Event of Default shall occur, and any moneys thereafter paid into the
sinking fund, shall, during the continuance of such default or Event of
Default, be deemed to have been collected under Article Four and held for the
payment of all such Securities. Notwithstanding anything in the foregoing to
the contrary, in case such default or Event of Default shall have been waived
as provided in Section 4.9 or the default or Event of Default cured on or
before the sixtieth day preceding the sinking fund payment date in any year,
such moneys shall thereafter be applied on the next succeeding sinking fund
payment date in accordance with this Section 10.6 to the redemption of such
Securities.
ARTICLE ELEVEN
CONVERSION OF SECURITIES
SECTION 11.1 Conversion of Securities. In connection with
Securities of any series convertible at the option of the Holders thereof,
each such Security (or any portion thereof which is, unless otherwise
specified as contemplated by Section 2.4 for Securities of any series, $1,000
or an integral multiple thereof) shall be convertible into shares of Common
Stock as specified pursuant to Section 2.4 for Securities of such series, in
accordance with its terms and (except as otherwise specified pursuant to
Section 2.4 for Securities of such series) in accordance with this Article
Eleven at any time prior to the maturity of the Securities of such series or
in case such Security shall have been called for redemption, then in respect
of such Security until including, but not after (unless the Company shall
default in payment due upon the redemption thereof) the close of business
three Business Days prior to the date fixed for redemption, unless otherwise
specified as contemplated by Section 2.4 for Securities of such series.
The initial Conversion Price at which a Security of any series is
convertible shall be set forth in or established pursuant to a Resolution or
supplemental indenture contemplated by Section 2.4.
<PAGE>
Any such Security shall be so converted upon surrender to the
Trustee or the Conversion Agent for surrender to the Issuer in accordance with
the instructions on file with the Trustee and the Conversion Agent, at any
time during usual business hours at the office or agency to be maintained by
the Company in accordance with the provisions of Section 3.2, accompanied by a
written notice of election to convert as provided in Section 11.2 and, if so
required by the Issuer, by a written instrument or instruments of transfer in
form satisfactory to the Issuer and the Conversion Agent duly executed by the
Holder or his attorney duly authorized in writing. The Company covenants to
effect such conversion by procuring the issuance of Common Stock and payment
of cash in lieu of fractional shares in exchange for and in consideration of
delivery to it of the Securities. For convenience, the conversion of
principal of any Security or Securities pursuant to this Article Eleven is
hereinafter sometimes referred to as the conversion of such Security or
Securities. All Securities surrendered for conversion shall, if surrendered
to the Issuer or any Conversion Agent, be delivered to the Trustee for
cancellation and cancelled by it, as provided in Section 2.11 (except as
otherwise provided therein). Any Security surrendered for conversion shall
not thereafter be convertible.
SECTION 11.2 Issuance of Shares of Stock on Conversion. As
promptly as practicable after the surrender as herein provided of any Security
or Securities for conversion, the Issuer shall deliver or cause to be
delivered at its office or agency to or upon the written order of the Holder
of the Security or Securities so surrendered a certificate or certificates
representing the number of duly authorized, validly issued, fully paid and
nonassessable shares of Common Stock (the shares being referred to in this
Article Eleven as the "Conversion Shares") into which such Security or
Securities may be converted in accordance with the provisions of this Article
Eleven. Prior to delivery of such certificate or certificates, the Issuer
shall require a written notice, which shall be substantially in the Form of
Election to Convert as provided for in the Security, to be delivered to its
office or agency from the Holder of the Security or Securities so surrendered
stating that the Holder irrevocably elects to convert such Security or
Securities. Such notice shall also state the name or names (with address or
addresses) in which said certificate or certificates are to be issued. Such
conversion shall be deemed to have been made at the close of business on the
date that such Security or Securities shall have been surrendered for
conversion and such notice shall have been received by the Issuer, and the
rights of the Holder of such Security as a Holder shall cease at such time.
The Person or Persons entitled to receive the Conversion Shares upon
conversion of such Security or Securities shall be treated for all purposes as
having become the record holder or holders of such Conversion Shares at such
time and such conversion shall be at the Conversion Price for such series of
Securities in effect at such time; provided, however, that no such surrender
on any date when the stock transfer books of the Issuer shall be closed shall
be effective to constitute the Person or Persons entitled to receive the
Conversion Shares upon such conversion as the record holder or holders of such
Conversion Shares on such date, but such surrender shall be effective to
constitute the Person or Persons entitled to receive such Conversion Shares as
the record holder or holders thereof for all purposes at the close of business
on the next succeeding day on which such stock transfer books are open; such
conversion shall be at the Conversion Price in effect on the date that such
Security or Securities shall have been surrendered for conversion, as if the
stock transfer books of the Issuer had not been closed.
Upon conversion of any Security which is converted in part only, the
Issuer shall execute and the Trustee shall authenticate and make available for
delivery to or on the order of the holder thereof, at the expense of the
Issuer, a new Security or Security of authorized denominations in a principal
amount equal to the unconverted portion of such Security.
If the last day of the exercise of the conversion right shall not be
a Business Day, then such conversion right may be exercised on the next
succeeding Business Day.
<PAGE>
SECTION 11.3 No Adjustment for Interest or Dividends. No payment
or adjustment in respect of interest on the Securities or dividends on the
Conversion Shares shall be made upon the conversion of any Security or
Securities; provided, however, that if a Security or Securities or any portion
thereof shall be converted subsequent to any regular record date and on or
prior to the next succeeding interest payment date, the interest falling due
on such interest payment date shall be payable on such interest payment date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name such
Security is registered at the close of business on such regular record date
and Securities surrendered for conversion during the period from the close of
business on any regular record date to the opening of business on the
corresponding interest payment date must be accompanied by payment of any
amount equal to the interest payable on such interest payment date.
SECTION 11.4 Adjustment of Conversion Price. Except as may
otherwise be established pursuant to Section 2.4 with respect to a particular
series of Securities, the Conversion Price in effect at any time for any
series of Securities that is convertible into Common Stock shall be subject to
adjustment as follows:
(a) If the Issuer shall hereafter pay a dividend or make a
distribution on its Common Stock in shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the date fixed for the determination of stockholders entitled
to receive such dividend or other distribution shall be reduced by
multiplying such Conversion Price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination and the denominator
shall be the sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day
following the date fixed for such determination. The Issuer will not pay
any dividend or make any distribution on shares of Common Stock held in
the treasury of the Issuer.
(b) If the Issuer shall hereafter issue rights or warrants to all
holders of its outstanding shares of Common Stock entitling them (for a
period expiring within 45 days after the date fixed for determination of
stockholders entitled to receive such rights or warrants) to subscribe
for or purchase shares of Common Stock at a price per share less than the
Current Market Price on the date fixed for determination of stockholders
entitled to receive such rights or warrants (other than pursuant to an
automatic dividend reinvestment plan of the Issuer or any substantially
similar plan), the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the date fixed for determination of
stockholders entitled to receive such rights or warrants by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for determination
of stockholders entitled to receive such rights or warrants plus the
number of shares which the aggregate offering price of the total number
of shares so offered for subscription or purchase would purchase at such
Current Market Price, and of which the denominator shall be the number of
shares of Common Stock outstanding on the date fixed for determination of
stockholders entitled to receive such rights or warrants plus the number
of additional shares of Common Stock offered for subscription or
purchase. Such adjustment shall become effective immediately after the
opening of business on the date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares
of Common Stock are not delivered after the expiration of such rights or
warrants, the Conversion Price shall be readjusted to the Conversion
Price which would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made on the basis of delivery of
only the number of shares of Common Stock actually delivered. In the
event that such rights or warrants are not so issued, the Conversion
<PAGE>
Price shall again be adjusted to be the Conversion Price which would then
be in effect if such date fixed for the determination of stockholders
entitled to receive such rights or warrants had not been fixed.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and
conversely, in case outstanding shares of Common Stock shall be combined
into a smaller number of shares of Common Stock, the Conversion Price in
effect at the opening of business on the day following the day upon which
such combination becomes effective shall be proportionately increased,
such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the day
upon which such subdivision or combination becomes effective.
(d) In case the Issuer shall, by dividend or otherwise, distribute
to all holders of its Common Stock evidences of its indebtedness, shares
of any class of capital stock (other than a dividend or distribution to
which paragraph (a) of this Section 11.4 applies), assets (including
securities, but excluding cash dividends paid out of funds legally
available therefor) or rights or warrants to subscribe or purchase any of
its securities (excluding (1) any rights or warrants referred to in
paragraph (b) of this Section 11.4, (2) rights (collectively, the
"Rights") issued under the Rights Agreement dated as of September 23,
1987, as amended, or the Rights Agreement dated as of August 30, 1990, as
amended, in each case between the Issuer and Chemical Bank, as Rights
Agent, (3) any dividend or distribution in connection with the liqui-
dation, dissolution or winding up of the Issuer, whether voluntary or
involuntary, or (4) any dividends or distributions referred to in
paragraph (a) of this Section 11.4) (any of the foregoing evidences of
indebtedness, shares, assets, rights or warrants being hereinafter in
this paragraph called the "Other Securities"), then, in each such case,
unless the Issuer elects to reserve such Other Securities for distribu-
tion to the holders of the Securities upon the conversion of the
Securities so that any such holder converting Securities will receive
upon such conversion, in addition to the shares of the Common Stock to
which such holder is entitled, the amount and kind of such Other
Securities which such holder would have received if such holder had,
immediately prior to the record date for the determination of
stockholders entitled to receive such distribution of the Other Securi-
ties, converted its Securities into Common Stock, the Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the close
of business on the record date for the making of such distribution by a
fraction of which the numerator shall be the Current Market Price of the
Common Stock on such record date less the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive) on such record date, of the portion of the Other Securities
so distributed applicable to one share of Common Stock and the
denominator shall be such Current Market Price per share of the Common
Stock, such reduction to become effective immediately prior to the
opening of business on the day following such record date. In the event
that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then
be in effect if such dividend or distribution had not occurred. If the
Board of Directors (or, to the extent permitted by applicable law, a duly
authorized committee thereof) determines the fair market value of any
distribution for purposes of this paragraph by reference to the actual or
when issued trading market for any securities comprising such distribu-
tion, it must in doing so consider the prices in such market over the
same period used in computing the Current Market Price of the Common
Stock.
(e) The reclassification of Common Stock into securities including
other than Common Stock (other than any reclassification upon a
<PAGE>
consolidation or merger to which Section 11.6 applies) shall be deemed to
involve (i) a distribution of such securities other than Common Stock to
all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such distribution" and
"the date fixed for such determination" within the meaning of paragraph
(d) of this Section 11.4), and (ii) a subdivision or combination, as the
case may be, of the number of shares of Common Stock outstanding immedi-
ately prior to such reclassification into the number of shares of Common
Stock outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such combination
becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of para-
graph (c) of this Section 11.4).
(f) All calculations under this Section 11.4 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may
be.
(g) No adjustment in the Conversion Price shall be required unless
such adjustment would require a change of at least 1% in such price;
provided, however, that any adjustments which by reason of this paragraph
are not required to be made shall be carried forward and taken into
account in any subsequent adjustment.
(h) Anything in this Section 11.4 to the contrary notwithstanding,
the Issuer from time to time may, to the extent permitted by law, reduce
the Conversion Price by any amount for any period of at least 20 days, if
the Board of Directors has made a determination that such reduction would
be in the best interests of the Issuer, which determination shall be
conclusive. The Issuer may, at its option, make such reduction in the
Conversion Price, in addition to any reduction permitted by the immedi-
ately preceding sentence, as the Board of Directors deems advisable to
avoid or diminish any income tax to holders of Common Stock resulting
from any dividend or distribution of stock (or rights to acquire stock)
or from any event treated as such for income tax purposes. Whenever the
Conversion Price is reduced pursuant to this paragraph, the Issuer shall
mail to holders of record of the Securities of any series that is
convertible into Common Stock a notice of the reduction at least 15 days
prior to the date the reduced Conversion Price takes effect, and such
notice shall state the reduced Conversion Price and the period it will be
in effect.
(i) No adjustment in the Conversion Price shall be required for a
change in the par value of the Common Stock.
(j) In the event that at any time as a result of an adjustment made
pursuant to paragraph (d) of this Section 11.4, the holder of any
Securities thereafter surrendered for conversion shall become entitled to
receive any shares of the Issuer other than shares of Common Stock,
thereafter the Conversion Price allocable to such other shares so
receivable upon conversion of any Securities shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to Common Stock
contained in this Section 11.4 as determined by the Board of Directors
(whose determination shall be conclusive).
(k) In any case in which this Section 11.4 provides that an
adjustment to the Conversion Price shall become effective immediately
after a record date for an event, the Issuer may defer until the
occurrence of such event (y) issuing to the holder of any Security
converted after such record date and before the occurrence of such event
the additional shares of Common Stock issuable upon such conversion by
reason of the adjustment required by such event over and above the Common
Stock issuable upon such conversion before giving effect to such
<PAGE>
adjustment and (z) paying to such holder any amount in cash in lieu of
any fractional share of Common Stock pursuant to Section 11.5.
(l) Whenever the Conversion Price of any series is adjusted, as
herein provided, the Issuer shall promptly file with the Trustee and with
the Conversion Agent a certificate of the Treasurer of the Issuer setting
forth the Conversion Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment and a computation
thereof. Such certificate shall be conclusive evidence of the
correctness of such adjustment. Neither the Trustee nor any Conversion
Agent shall be under any duty or responsibility with respect to any such
certificate or any facts or computations set forth therein, except to
exhibit said certificate from time to time to any Holder of Securities
desiring to inspect the same. The Trustee, at the expense of the Issuer,
shall cause notice setting forth the Conversion Price to be mailed,
first-class postage prepaid, to each Holder of Securities of such series
at the address of such Holder as it appears in the Register.
SECTION 11.5 No Fractional Shares To Be Issued. No fractional
Conversion Shares shall be issued upon conversions of Securities. If more
than one Security of any series shall be surrendered for conversion at one
time by the same Holder, the number of full shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities of such series so surrendered. Instead of
a fraction of a Conversion Share which would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Issuer shall pay a cash adjustment in respect of such fraction of a share in
an amount equal to the same fractional interest of the Closing Price of Common
Stock on the Trading Day next preceding the day of conversion.
SECTION 11.6 Preservation of Conversion Rights upon Consolidation,
Merger, Sale or Conveyance. In the event that the Issuer shall be a party to
(i) any consolidation of the Issuer with, or merger of the Issuer into, any
other person, any merger of another person into the Issuer (other than a
consolidation or merger which does not result in a conversion, exchange or
cancellation of outstanding shares of Common Stock of the Issuer) or (ii) any
sale or transfer of all or substantially all of the assets of the Issuer, the
corporation or person formed by such consolidation or resulting from such
merger or which shall have acquired such assets or which acquired the Issuer's
shares, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
Outstanding shall have the right thereafter to convert such Security into,
subject to funds being legally available for such purpose under applicable law
at the time of such conversion, the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by
a holder of the number of shares of Common Stock into which such Security
might have been converted immediately prior to such consolidation, merger,
sale or transfer. Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article Eleven. Neither the Trustee nor any Conversion
Agent shall be under any responsibility to determine the correctness of any
provision contained in any such supplemental indenture relating either to the
kind or amount of shares of stock or other securities or property receivable
by Holders of Securities upon the conversion of their Securities after any
such consolidation, merger, sale or transfer, or to any adjustment to be made
with respect thereto and, subject to the provisions of Section 5.1, may accept
as conclusive evidence of the correctness of any such provisions. The above
provisions of this Section 11.6 shall similarly apply to successive
consolidations, mergers, sales or transfers.
SECTION 11.7 Notice to Holders of Securities Prior to Taking
Certain Types of Action. In case:
(a) the Issuer shall authorize the distribution to all holders of
its Common Stock of evidences of its indebtedness or assets (other than
cash dividends or other distributions paid out of funds legally available
<PAGE>
therefor and the dividends payable in stock for which adjustment is made
pursuant to Section 11.4); or
(b) the Issuer shall authorize the granting to all holders of its
Common Stock of rights or warrants to subscribe for or purchase any
shares of its capital stock of any class or of any other rights (other
than the Rights); or
(c) of any consolidation or merger to which the Issuer is a party
and for which approval of any stockholders of the Issuer is required, or
of the sale or conveyance of all or substantially all of the Issuer's
assets or property to another company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Issuer;
then the Issuer shall cause to be filed with the Trustee and the Conversion
Agent, at least 15 days prior to the applicable record date hereinafter
specified, a notice stating (i) the date on which a record is to be taken for
the purpose of such distribution, rights or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be
entitled to such distribution, rights or warrants are to be determined, or
(ii) the date on which such consolidation, merger, sale, conveyance, dissolu-
tion, liquidation or winding up is expected to become effective, and the date
as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their Common Stock for securities or other property
deliverable upon such consolidation, merger, sale, conveyance, dissolution,
liquidation or winding-up. The failure to give the notice required by this
Section 11.7 or any defect therein shall not affect the legality or validity
of the proceedings described in paragraphs (a), (b), (c) or (d) of this
Section 11.7. Such notice, at the expense of the Issuer, shall be mailed by
the Trustee, first-class postage prepaid, to each Holder of Securities that
are convertible into Common Stock of the Issuer at the address of such Holder
as it appears in the Register.
SECTION 11.8 Covenant to Reserve Shares for Issuance on Conversion
of Securities. The Issuer covenants that it will at all times reserve and
keep available, in the case of Securities convertible into Common Stock, out
of the aggregate of its authorized but unissued shares of Common Stock and its
issued shares of Common Stock held in its treasury, free from pre-emptive
rights, solely for the purpose of issue upon conversion of Securities as
herein provided, such number of shares of Common Stock as shall then be
issuable upon the conversion of all Outstanding Securities. For the purpose
of this Section, the full number of shares of Common Stock issuable upon the
conversion of all Outstanding Securities shall be computed as if at the time
of such computation all Outstanding Securities of a series were held by a
single holder. The Issuer shall from time to time, in accordance with the
laws of the State of Delaware, increase the authorized amount of its Common
Stock if at any time the aggregate of the authorized amount of its Common
Stock remaining unissued and its issued shares of Common Stock held in its
treasury (other than any such shares reserved for issuance in any other
connection) shall not be sufficient to permit the conversion of all Securities
at the time outstanding. The Issuer covenants that all shares of Common Stock
which shall be so issuable shall, when issued, be duly and validly issued
shares of its authorized Common Stock, and shall be fully paid and
nonassessable, free of all liens and charges and not subject to preemptive
rights and that, upon conversion, the appropriate capital stock accounts of
the Issuer will be duly credited.
SECTION 11.9 Compliance with Governmental Requirements. The Issuer
covenants that if any shares of Common Stock required to be reserved for
purposes of conversion of Securities hereunder require registration with or
approval of any governmental authority under any United States Federal or
state law, or any United States national securities exchange, before such
shares may be issued upon conversion, the Issuer will use its best efforts to
cause such shares to be duly registered or approved, as the case may be.
<PAGE>
SECTION 11.10 Payment of Taxes upon Certificates for Shares Issued
upon Conversion. The issuance of certificates for shares of Common Stock upon
the conversion of Securities shall be made without charge to the converting
Holders for any tax in respect of the issuance of such certificates, and such
certificates shall be issued in the respective names of, or in such names as
may be directed by, the Holders of the Securities converted; provided,
however, that the Issuer shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of
any such certificate in a name other than that of the Holder of the Security
converted, and neither the Issuer nor the Conversion Agent shall be required
to issue or deliver such certificates unless or until the person or persons
requesting the issuance thereof shall have paid to the Issuer the amount of
such tax or shall have established to the satisfaction of the Issuer that such
tax has been paid.
SECTION 11.11 Trustee's Duties with Respect to Conversion
Provisions. The Trustee, subject to the provisions of Section 5.1, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder to determine whether any facts exist which may require any ad-
justment of the conversion rate, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making the
same. Neither the Trustee nor any Conversion Agent shall be accountable with
respect to the registration under securities laws, listing, validity or value
(or the kind or amount) of any shares of Conversion Stock, or of any other
securities or property, which may at any time be issued or delivered upon the
conversion of any Security; and neither the Trustee nor any Conversion Agent
makes any representation with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Issuer to make
any cash payment or to issue, transfer or deliver any shares of stock or stock
certificates or other securities or property upon the surrender of any
Security for the purpose of conversion; and the Trustee, subject to the
provisions of Section 5.1, and any Conversion Agent shall not be responsible
for any failure of the Issuer to comply with any of the covenants of the
Issuer contained in this Article Eleven. Each Conversion Agent (other than
the Issuer or an affiliate of the Issuer) shall have the same protection under
this Article Eleven as the Trustee.
ARTICLE TWELVE
SUBORDINATION
SECTION 12.1 Securities Subordinate to Senior Indebtedness.
The Issuer covenants and agrees, and the Trustee and each Holder of
a Security, by its acceptance thereof, likewise covenant and agree, that all
Securities shall be issued subject to the provisions of this Article Twelve;
and each person holding any Security, whether upon original issue or upon
transfer, assignment or exchange thereof, accepts and agrees that all payments
of principal of and premium, if any, and interest, if any, on each and all of
the Securities shall to the extent and in the manner hereinafter set forth in
this Article Twelve be subordinated in right of payment to the prior payment
in full of all Senior Indebtedness whether outstanding on the date hereof or
hereafter created, incurred, assumed or guaranteed.
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, etc.
(a) Upon any payment or distribution of assets or securities of the
Issuer of any kind or character, whether in cash, property or securities, upon
any dissolution or winding up or total or partial liquidation or
reorganization of the Issuer, whether voluntary or involuntary, or in
bankruptcy, insolvency, reorganization, receivership or other proceedings, or
any assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Issuer, all principal, premium, if any, and interest, if
any, due upon all Senior Indebtedness shall first be paid in full, or
<PAGE>
provision shall be made for such payment, in cash or cash equivalents, before
the Holders or the Trustee on behalf of the Holders shall be entitled to
receive any payment by the Issuer on account of principal of or premium, if
any, or interest, if any, on the Securities, or any payment to acquire any of
the Securities for cash, property or securities, or any distribution with
respect to the Securities of any cash, property or securities. Before any
payment may be made by, or on behalf of, the Issuer on any of the Securities
upon any dissolution or winding up, or total or partial liquidation or
reorganization of the Issuer, whether voluntary or involuntary, or in
bankruptcy, insolvency, reorganization, receivership or other proceedings, or
any assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Issuer, any payment or distribution of assets or securities
of the Issuer of any kind or character, whether in cash, property or
securities, to which the Holders or the Trustee on behalf of the Holders would
be entitled, except for the provisions of this Article Twelve, shall be made
by the Issuer or by any receiver, trustee in bankruptcy, liquidating trustee,
agent or other similar person making such payment or distribution, or by the
Holders or the Trustee if received by them or it, directly to the holders of
Senior Indebtedness (pro rata to such holders on the basis of the respective
amounts of Senior Indebtedness held by such holders) or their Representatives,
to the extent necessary to pay all such Senior Indebtedness in full, in cash
or cash equivalents after giving effect to any concurrent payment,
distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(b) In the event that, notwithstanding the foregoing provision
prohibiting such payment or distribution, any payment or distribution of
assets or securities of the Issuer of any kind or character, whether in cash,
property or securities, shall be received by the Trustee or any Holder at a
time when such payment or distribution is prohibited by Clause (a) above
before all Senior Indebtedness is paid in full, in cash or cash equivalents,
or payment thereof provided for, and such fact shall have been made known to
such Holder or Trustee, as the case may be, such payment or distribution shall
be received and held in trust for the benefit of, and shall be paid over or
delivered to, any trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other person making payment or distribution of
assets of the Issuer for application to the payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness has been paid in full, in
cash or cash equivalents, or payment thereof provided for, after giving effect
to any concurrent payment, distribution or provision therefor to or for the
holders of such Senior Indebtedness.
(c) The consolidation or amalgamation of the Issuer with, or the
merger of the Issuer with or into, another corporation or the liquidation or
dissolution of the Issuer following the sale, conveyance, transfer, lease or
other disposition of all or substantially all of its property and assets to
another corporation upon the terms and conditions provided in Article Eight
shall not be deemed a dissolution, winding up, liquidation or reorganization
for the purposes of this Section 12.2 if such other corporation shall, as a
part of such consolidation, merger, sale, conveyance, transfer, lease or other
disposition, comply with the conditions stated in Article Eight.
SECTION 12.3 Default on Senior Indebtedness.
(a) No payment or distribution by or on behalf of the Issuer,
whether pursuant to the terms of the Securities or upon acceleration or
otherwise, shall be made on account of principal of or premium, if any, or
interest on the Securities, whether upon stated maturity, redemption or
acceleration or otherwise, or an account of the purchase or other acquisition
of the Securities if, at the time of such payment, there shall have occurred
and be continuing (i) a default in the payment of all or any portion of
principal of, premium, if any, or interest, if any, on any Senior Indebtedness
when due and, the Trustee has received written notice thereof from the
Representative of the holders of such Senior Indebtedness or (ii) a default
with respect to any Senior Indebtedness pursuant to which the maturity thereof
may be accelerated (without further notice and after the expiration of any
<PAGE>
applicable grace periods) and the Trustee has received written notice of such
default from the Representative of the holders of such Senior Indebtedness
(the "Payment Notice"), until, in the case of a default described in clause
(i) above, the date, if any, on which the Trustee receives written notice from
such Representative that such default is cured or waived or has ceased to
exist, or the related Senior Indebtedness is discharged or, in the case of a
default described in clause (ii) above, until the earlier of (x) 179 days
after the date on which a Payment Notice shall have been given and (y) the
date, if any, on which the Trustee receives written notice from the
Representative who delivered the Payment Notice that such default is cured or
waived or has ceased to exist or the related Senior Indebtedness is discharged
(the "Payment Blockage Period"). No more than one Payment Notice is permitted
for any one default on Senior Indebtedness (which shall not bar subsequent
Payment Notices for other such defaults); provided, however, that all defaults
on Senior Indebtedness occurring within a 30-day period shall be treated as
one default on such Senior Indebtedness. Notwithstanding the foregoing, no
more than one Payment Blockage Period may be commenced with respect to the
Securities during any 360-day period.
(b) A failure to make any payment with respect to the Securities as
a result of this Section 12.2 will not limit the right of the Holders of the
Securities to accelerate the maturity thereof as a result of such payment
default.
SECTION 12.4 Payment Permitted if No Default.
Nothing contained in this Article Twelve or elsewhere in this
Indenture shall prevent (i) the Issuer, except under the conditions described
in Section 12.2 or 12.3 of this Indenture, from making payments of principal
of, premium, if any, and interest, if any, on the Securities, or from
depositing with the Trustee any money for such payments, or (ii) the
application by the Trustee of any money deposited with it for the purpose of
making such payment of principal of, premium, if any, and interest, if any, on
the Securities to the Holders entitled thereto, if, at the time such applica-
tion by the Trustee, it did not have actual knowledge that such payment would
have been prohibited by the provisions of this Article Twelve.
SECTION 12.5 Subrogation to Rights of Holders of Senior
Indebtedness.
(a) Subject to the payment in full of all Senior Indebtedness, in
cash or cash equivalents, the Holders of the Securities shall be subrogated to
the rights of the holders of such Senior Indebtedness to receive payments and
distributions of cash, property and securities applicable to the Senior
Indebtedness until the principal of and premium, if any, and interest, if any,
on the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of Senior Indebtedness of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article Twelve, and no
payments pursuant to the provisions of this Article Twelve to the holders of
Senior Indebtedness by Holders or the Trustee, shall, as among the Issuer, its
creditors other than holders of Senior Indebtedness, and the Holders, be
deemed to be a payment or distribution by the Issuer to or on account of the
Senior Indebtedness.
(b) If any payment or distribution to which the Holders would
otherwise have been entitled but for the provisions of this Article Twelve
shall have been applied, pursuant to the provisions of this Article Twelve, to
the payment of all amounts payable under Senior Indebtedness, then, and in
such case, the Holders shall be entitled to receive from the holders of such
Senior Indebtedness any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount required to make payment in full
of amounts payable under such Senior Indebtedness.
SECTION 12.6 Provisions Solely to Define Relative Rights.
<PAGE>
The provisions of this Article Twelve are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Indebtedness on the other
hand. Nothing contained in this Article Twelve or elsewhere in this Indenture
or in the Securities is intended to or shall (a) impair, as among the Issuer,
its creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Issuer, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of and premium, if any,
and interest, if any, on the Securities as and when the same shall become due
and payable in accordance with their terms; or (b) affect the relative rights
against the Issuer of the Holders of the Securities and creditors of the
Issuer other than the holders of Senior Indebtedness; or (c) prevent the
Trustee or the Holder of any Security from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Twelve of the holders of Senior
Indebtedness (1) in any dissolution, winding up, total or partial liquidation
or reorganization of the Issuer, whether voluntary or involuntary, or
bankruptcy, insolvency, receivership or other proceeding, or assignment for
the benefit of creditors or other marshalling of assets and liabilities of the
Issuer referred to in Section 12.2, to receive, pursuant to and in accordance
with such Section, cash, property and securities otherwise payable or deliver-
able to the Trustee or such Holder, or (2) under the conditions specified in
Section 12.3, to prevent any payment prohibited by such Section.
SECTION 12.7 Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Twelve
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 12.8 No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness
or any agent or representative therefor to enforce subordination as provided
in this Article Twelve shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Issuer or by any act or
failure to act, in good faith, by any such holder or its agent or
representative, or by any non-compliance by the Issuer with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder or any agent or representative therefor may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time
to time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Twelve
Article or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness or any instrument evidencing the same
or any agreement under which Senior Indebtedness is outstanding; (b) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Indebtedness; (c) release any person liable in any
manner for the payment or collection of Senior Indebtedness; and (d) exercise
or refrain from exercising any rights or remedies against the Issuer and any
other person.
SECTION 12.9 Notice to Trustee.
The Issuer shall give prompt written notice to the Trustee of any
dissolution, winding up, liquidation, reorganization, bankruptcy, receivership
or other proceeding which would prohibit the making of any payment to or by
the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article Twelve or any other provision of this Indenture, the Trustee
<PAGE>
shall not be charged with knowledge of the existence of any facts which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until the Trustee shall have received written notice
thereof from the Representative of the holders of such Senior Indebtedness;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 5.1, shall be entitled in all respects to assume
that no such facts exist; provided, however, that if the Trustee shall not
have received the notice provided for in this Section at least three Business
Days prior to the date upon which by the terms hereof any money may become
payable for any purpose (including, without limitation, the payment of the
principal of and premium, if any or interest, if any, on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
Subject to the provisions of Section 5.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a Representative of holders of Senior Indebtedness
to establish that such notice has been given by a Representative. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Twelve, the Trustee may request that such person furnish evidence to
the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such person, the extent to which such person is entitled
to participate in such payment or distribution and any other facts pertinent
to the rights of such person under this Article Twelve, and if such evidence
is not furnished, the Trustee may defer any such payment pending judicial
determination as to the right of such person to receive such payment.
SECTION 12.10 Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Issuer referred to
in this Article Twelve, the Trustee, subject to the provisions of Section 5.1,
and the Holders of the Securities shall be entitled to rely upon any order or
decree entered by a court of competent jurisdiction in which any proceedings
of the nature referred to in Section 12.2 are pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for
the purpose of ascertaining the persons entitled to participate in such
payment or distribution, the holders of Senior Indebtedness and other
indebtedness of the Issuer, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto
or to this Article Twelve.
SECTION 12.11 Rights of Trustee as a Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Twelve with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 5.5.
SECTION 12.12 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Issuer and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
<PAGE>
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee.
SECTION 12.13 Not to Prevent Events of Default. The failure to
make a payment on account of principal of or premium, if any, or interest, if
any, on the Securities by reason of any provision of this Article Twelve will
not be construed as suspending the rights of the Holders to accelerate the
maturity of the Securities pursuant to Article Four.
SECTION 12.14 Securities Senior to Subordinated Indebtedness. The
Indebtedness represented by the Securities will be senior and prior in right
of payment to all Subordinated Indebtedness, to the extent and in the manner
provided in such Subordinated Indebtedness.
SECTION 12.15 Certain Conversions Deemed Payment. For the Purpose
of this Article Twelve only, (1) the issuance and delivery of junior
securities upon conversion of Securities in accordance with Article Eleven
shall not be deemed to constitute a payment or distribution on account of the
principal of or premium, if any, or interest, if any, on Securities or on
account of the purchase or other acquisition of Securities, and (2) the
payment, issuance or delivery of cash, property or securities (other than
junior securities) upon conversion of a Security shall be deemed to constitute
payment on account of principal of such Security. For the purposes of this
Section, the term "junior securities" means (a) shares of any stock of any
class of the Issuer and (b) securities of the Issuer which are subordinated in
right of payment to all Senior Indebtedness which may be outstanding at the
time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article Twelve. Nothing contained in this Article Twelve or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as among the Issuer, its creditors other than holders of Senior
Indebtedness and the Holders of the Securities, the right, which is absolute
and unconditional, of the Holder of any Security to convert such Security in
accordance with Article Eleven.
SECTION 12.16 Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to
the Holders of Senior Indebtedness and the Trustee undertakes to perform or to
observe only such of its covenants or obligations as are specifically set
forth in this Article Twelve and no implied covenants or obligations with
respect to Holders of Senior Indebtedness shall be read into this Indenture
against the Trustee.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
SECTION 13.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the
Holders thereof and as part of the consideration for the issue of the
Securities.
SECTION 13.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Except as provided in Article Twelve, nothing in
this Indenture or in the Securities, expressed or implied, shall give or be
<PAGE>
construed to give to any Person, other than the parties hereto and their
successors and assigns and the Holders of the Securities, any legal or
equitable right, remedy or claim under this Indenture or under any covenant,
condition or provision herein contained, all such covenants and provisions
being for the sole benefit of the parties hereto and their successors and of
the Holders of the Securities.
SECTION 13.3 Successors and Assigns of Issuer Bound by Indenture.
All the covenants, stipulations, promises and agreements in this Indenture
contained by the Issuer shall bind its successors and assigns, whether or not
so expressed.
SECTION 13.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail, in a post office letter box
(except as otherwise specifically provided herein) addressed (until another
address of the Issuer is furnished by the Issuer to the Trustee) to Newmont
Mining Corporation, 1700 Lincoln Street, Denver, Colorado 80203, Attention:
Treasurer. Any notice, direction, request or demand by the Issuer or any
Securityholder to or upon the Trustee shall be deemed to have been suffi-
ciently given or made, for all purposes, if given or made in writing at its
Corporate Trust Office.
Where this Indenture provides for notice to Securityholders, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Securityholder entitled thereto, at his last address as it appears in the
Register. In any case where notice to Securityholders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Securityholder shall affect the sufficiency of such
notice with respect to other Securityholders. 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 Secur-
ityholders 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. Notwithstanding anything to the contrary elsewhere in this Indenture
as to the giving of notice, any other form of written notice is sufficient, if
received.
In case, by reason of the suspension of or irregularities in regular
mail service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then notwithstanding anything to the contrary
elsewhere in this Indenture as to the giving of notice, any manner of giving
such notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice.
SECTION 13.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture shall include (a) a statement that the
<PAGE>
Person making such certificate or opinion has read such covenant or condition,
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based, (c) a statement that, in the opinion of such
Person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been complied with and (d) a statement as to whether or not,
in the opinion of such Person, such condition or covenant has been complied
with.
Any certificate, statement or opinion of an officer of the Issuer
may be based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are
erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters or information which is in the
possession of the Issuer, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuer, unless such counsel
knows that the certificate, statement or opinion or representations with
respect to the matters upon which his certificate, statement or opinion may be
based as aforesaid are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or
of counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as
the case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 13.6 Official Acts by Successor Entity. Any act or
proceeding by any provision of this Indenture authorized or required to be
done or performed by any board, committee or officer of the Issuer shall and
may be done and performed with like force and effect by the like board, com-
mittee or officer of any entity that shall at the time be the lawful sole
successor of the Issuer.
SECTION 13.7 Payments Due on Saturdays, Sundays and Legal Holidays.
Except as may be provided pursuant to Section 2.4 with respect to any series
of tranche, if the date of maturity of interest on or principal of the Securi-
ties of any series or the date fixed for redemption or repayment of any such
Security shall not be a Business Day, then payment of such interest, if any,
or principal need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the date
of maturity or the date fixed for redemption or repayment, and no interest
shall accrue for the period from and after such date.
SECTION 13.8 NEW YORK LAW TO GOVERN. THIS INDENTURE AND EACH
SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW
YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SUCH STATE, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT AS MAY
OTHERWISE BE REQUIRED BY MANDATORY PROVISIONS OF LAW.
SECTION 13.9 Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 13.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience of reference only, are
not to be considered a part hereof and shall not affect the construction
hereof.
<PAGE>
SECTION 13.11 Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act of 1939 that is required under such Act to be a part of and govern this
Indenture, the latter provisions shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act of
1939 that may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may
be.
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 , .
NEWMONT MINING CORPORATION
By
Name:
Title:
[CORPORATE SEAL]
Attest:
By
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By
Name:
Title:
[CORPORATE SEAL]
Attest:
By
Name:
Title:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of , 1994, before me personally came
, to me personally known, who, being by me duly sworn, did depose
and say that he resides at ; that he is a
of The Bank of New York, one of the corporations described in
and which executed the above instrument; that he knows the corporate seal of
said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
[NOTARIAL SEAL]
<PAGE>
Notary Public
STATE OF COLORADO )
) ss.:
COUNTY OF )
On this day of , 1994, before me personally came
, to me personally known, who, being by me duly sworn, did depose
and say that he resides at ; that he
is of Newmont Mining Corporation, one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
Notary Public
[FORM OF DEPOSIT AGREEMENT]
NEWMONT MINING CORPORATION
AND
, As Depositary
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
<PAGE>
DEPOSIT AGREEMENT
Dated as of
Note: This form includes certain alternative bracketed language to be
included in this Agreement depending on whether Receipts will be issued in
definitive form or global form through DTC. Under this form, holders of
Depositary Receipts will not be entitled to receive shares of stock or
money and other property, if any, represented by the Depositary Shares.
See Section 2.07.
<TABLE>
TABLE OF CONTENTS
Page
<S> <C>
ARTICLE I
DEFINITIONS
ARTICLE II
Form of Receipts, [Book-Entry System,] Deposit of
Stock, Execution and Delivery, Transfer, Surrender
[,Conversion] [and Redemption of Receipts]; Transfer
and Paying Agents
SECTION 2.01. Form and Transfer of Receipts [; Book-Entry System] . . . . . . . . . . . . . 3
SECTION 2.02. Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof . . . 5
SECTION 2.03. Registration of Transfer of Receipts . . . . . . . . . . . . . . . . . . . . . 6
[SECTION 2.04. Redemption of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7]
[SECTION 2.05. Conversion at Option of Holder . . . . . . . . . . . . . . . . . . . . . . . . 9]
SECTION 2.06. Combination and Split-ups of Receipts . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.07. Absence of Withdrawal Rights . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.08. Limitations on Execution and Delivery, Transfer, Split-up, Combination,
Surrender and Exchange of Receipts . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.09. Lost Receipts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.10. Cancellation and Destruction of Surrendered Receipts . . . . . . . . . . . . . 12
SECTION 2.11. Transfer and Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . 12
<PAGE>
ARTICLE III
Certain Obligations of Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information . . . . . . . . . . . . . . 13
SECTION 3.02. Payment of Taxes or Other Governmental Charges . . . . . . . . . . . . . . . . 13
SECTION 3.03. Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.04. Warranty as to Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE IV
The Stock; Notices
SECTION 4.01. Cash Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or Privileges . . . . . . . 15
SECTION 4.03. Subscription Rights, Preferences or Privileges . . . . . . . . . . . . . . . . 15
SECTION 4.04. Notice of Dividends, Fixing of Record Date for Holders of Receipts . . . . . . 16
SECTION 4.05. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 4.06. Changes Affecting Stock and Reclassifications, Recapitalizations, etc. . . . . 17
SECTION 4.07. Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.08. Lists of Receipt Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE V
The Depositary, the Depositary's Agents, the Transfer Agent, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary;
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.02. Prevention or Delay in Performance by the Depositary, the Depositary's
Agents, the Registrar or the Company . . . . . . . . . . . . . . . . . . . . . 19
SECTION 5.03. Obligation of the Depositary, the Depositary's Agents, the Registrar and
the Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 5.04. Resignation and Removal of the Depositary; Appointment of Successor
Depositary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 5.05. Corporate Notices and Reports . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.06. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 5.07. Fees, Charges and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
<PAGE>
SECTION 6.02. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.02. Exclusive Benefit of Parties . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.03. Invalidity of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.04. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 7.05. Depositary's Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 7.06. Holders of Receipts Are Parties . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 7.07. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 7.08. Inspection of Deposit Agreement . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 7.09. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
</TABLE>
DEPOSIT AGREEMENT dated as of among NEWMONT MINING
CORPORATION, a Delaware corporation, , a
corporation, and the holders from time to time of the Receipts described
herein.
WHEREAS, it is desired to provide as hereinafter set forth in
this Deposit Agreement, for the deposit of the Stock with the Depositary,
for the purposes set forth in this Deposit Agreement and for the issuance
hereunder of Receipts evidencing Depositary Shares in respect of the Stock
so deposited; and
WHEREAS, the Receipts are to be substantially in the form of
Exhibit A annexed hereto, with appropriate insertions, modification and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties
hereto agree as follows:
ARTICLE I
Definitions
The following definitions shall for all purposes, unless
otherwise indicated, apply to the respective terms used in this Deposit
Agreement:
"Business Day" means any day that is not a Saturday or Sunday and
that is not a day on which banking institutions are generally authorized or
obligated by law to close in The City of New York.
"Certificate of Designations" shall mean the Certificate of
Designations establishing and setting forth the rights, preferences,
privileges and limitations of the Stock dated .
<PAGE>
"Certificate of Incorporation" shall mean the Restated Cer-
tificate of Incorporation, as amended and restated from time to time, of
the Company.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the Company's Common Stock, par value
$1.60 per share.
"Company" shall mean Newmont Mining Corporation, a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended
or supplemented from time to time.
"Depositary" shall mean , or any successor as
Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each
representing [insert fractional amount] of a share of Stock and evidenced
by a Receipt.
"Depositary's Agents" shall mean the agents appointed by the
Depositary pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary at
which at any particular time its business in respect of matters governed by
the Deposit Agreement shall be administered, which at the time of the
execution of the Deposit Agreement is located at .
["DTC" shall mean The Depository Trust Company.]
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
["Global Receipt" shall mean the global Receipt or Receipts
registered in the name of Cede & Co., as nominee of The Depository Trust
Company, evidencing some or all Depositary Shares, as provided by Section
2.01 of this Deposit Agreement.]
"holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for
such purpose.
"Receipt" shall mean one of the Depositary Receipts,
substantially in the form set forth as Exhibit A hereto, issued hereunder,
whether in definitive or temporary form and evidencing the number of
Depositary Shares held of record by the holder of such Depositary Shares.
[Where the context requires, the term "Receipt" shall also refer to the
Global Receipt.]
"Registrar" shall mean the Depositary or such other bank or trust
company which shall be appointed to register ownership and transfers of
Receipts as herein provided.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Stock" shall mean shares of the Company's [insert designation]
Preferred Stock, $5.00 par value per share.
ARTICLE II
<PAGE>
Form of Receipts, [Book-Entry System,]
Deposit of Stock, Execution and Delivery,
Transfer, Surrender [,Conversion] [and
Redemption of Receipts]; Transfer and Paying Agents
SECTION 2.01. Form and Transfer of Receipts [; Book-Entry
System]. [The Company and the Depositary have applied to DTC for
acceptance of the Depositary Shares for its book-entry settlement system.
So long as the Depositary Shares are eligible for book-entry
settlement with DTC, unless otherwise required by law, such Depositary
Shares shall be represented by a Global Receipt, substantially in the form
attached hereto as Exhibit A, subject to modifications as are, or will be,
agreed to by the Company and the Depositary not inconsistent with this
Deposit Agreement, registered in the name of a nominee of DTC (initially
expected to be Cede & Co.). The Depositary, or such other entity as is
agreed with DTC, may hold the Global Receipt as custodian for DTC.
Ownership of beneficial interests in the Global Receipt shall be shown on,
and the transfer of such ownership shall be effected only through, records
maintained by (i) DTC or its nominee (with respect to participants'
interests) or (ii) institutions that have accounts with DTC.
If, at any time when Depositary Shares are represented by the
Global Receipt, DTC ceases to make its book-entry settlement system
available for such Depositary Shares, the Company shall consult with the
Depositary regarding making other arrangements for book-entry settlement.]
[Receipts shall be typewritten, in the case of the Global
Receipt, and otherwise] [Definitive Receipts shall be engraved or printed
or lithographed or typewritten, or in such other form as may be agreed upon
by the Company and the Depositary, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order
of the Company delivered in compliance with Section 2.02, shall execute and
deliver temporary Receipts that are printed, lithographed, typewritten,
mimeographed or otherwise substantially of the tenor of the definitive
Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of
such Receipts. If temporary Receipts are issued, the Company and the
Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the
temporary Receipts shall be exchangeable for definitive Receipts upon
surrender of the temporary Receipts at the Depositary's Office without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary
Shares as are represented by the surrendered temporary Receipt or Receipts.
Such exchange shall be made at the Company's expense and without any charge
therefor. Until so exchanged, the temporary Receipts shall in all respects
be entitled to the same benefits under this Deposit Agreement, and with
respect to the Stock, as definitive Receipts.]
Receipts shall be executed by the Depositary by the manual
signature of a duly authorized officer of the Depositary; provided,
however, that such signature may be a facsimile if a Registrar (other than
the Depositary) shall have countersigned the Receipts by manual signature
of a duly authorized officer of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose unless it shall have been executed as provided
in the preceding sentence. The Depositary shall record on its books each
<PAGE>
Receipt executed as provided above and delivered as hereinafter provided.
Receipts bearing the signature of anyone who was at any time a duly
authorized officer of the Depositary or a Registrar, as the case may be,
shall bind the Depositary or Registrar, as the case may be, notwithstanding
that such officer has ceased to hold such office prior to the delivery of
such Receipts.
Receipts shall be in denominations of any even number of whole
Depositary Shares.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary
or required to comply with any applicable law or any regulation thereunder
or with the rules and regulations of any securities exchange upon which the
Stock, the Depositary Shares or the Receipts may be listed or to conform
with any usage with respect thereto, or to indicate any special limitations
or restrictions to which any particular Receipts are subject.
[The Global Receipt shall bear such legend or legends as may be
required by DTC in order for it to accept the Depositary Shares for its
book-entry settlement system.]
Title to Depositary Shares evidenced by a Receipt that is
properly endorsed or accompanied by a properly executed instrument of
transfer in the form of the Transfer Notice appearing on the Receipts of
transfer shall be transferable by delivery with the same effect as in the
case of a negotiable instrument; provided, however, the Depositary may,
notwithstanding any notice to the contrary, treat the holder thereof at
such time as the absolute owner thereof for the purpose of determining the
person entitled to distributions of dividends or other distributions or to
any notice provided for in this Deposit Agreement and for all other pur-
poses.
SECTION 2.02. Deposit of Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Deposit Agreement, the Company may deposit [, on the date of original
issuance,] shares of the Stock under this Deposit Agreement by delivery to
the Depositary of a certificate or certificates for the Stock to be
deposited properly endorsed or accompanied, if required by the Depositary,
by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary. [Deposits of Stock under this Section 2.02
will be made in no more than two separate deposits.] Each deposit shall be
made together with a written order of the Company directing the Depositary
[to execute and deliver to DTC or its custodian, a Global Receipt
evidencing the number of Depositary Shares specified in such order, [or, in
the case of the second permitted deposit, pursuant to the exercise of the
over-allotment option in accordance with the Underwriting Agreement and
related Terms Agreement between the Company and the Underwriters named
therein with respect to the Depositary Shares (the "Additional Depositary
Shares"), to increase the number of Depositary Shares evidenced by the
Global Receipt in the amount of the additional Depositary Shares so resold
and to be held through DTC]] [to execute and deliver to, or upon the writ-
ten order of, the person or persons stated in such order a Receipt or
Receipts for the number of Depositary Shares specified in such order].
[Each such deposit shall also be made with delivery of instruction to DTC
specifying the person or persons whose DTC participant account should be
credited with such Depositary Shares.]
Deposited Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary
shall determine.
<PAGE>
Upon receipt by the Depositary of a certificate or certificates
for Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Stock on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall [execute and deliver to DTC or
its custodian the Global Receipt evidencing the number of Depositary Shares
specified in the Company order referred to above as having been sold in
connection with such Deposit [or, in the case of the Additional Depositary
Shares, adjust its records, and instruct DTC to adjust its records, so as
to increase the number of the Depositary Shares represented by the Global
Receipt by the number of additional Depositary Shares specified in such
Company order]] [execute and deliver, to or upon the order of the person or
persons named in the written order delivered to the Depositary referred to
in the first paragraph of this Section, a Receipt or Receipts for the
number of Depositary Shares representing the Stock so deposited and
registered in such name or names as may be requested by such person or per-
sons]. The Depositary shall execute and deliver such Receipt or Receipts
at the Depositary's Office or such other offices, if any, as the Depositary
may designate. Delivery at other offices shall be at the risk and expense
of the person requesting such delivery.
SECTION 2.03. Registration of Transfer of Receipts. Subject to
the terms and conditions of this Deposit Agreement, the Depositary shall
register on its books from time to time transfers of Receipts upon any
surrender thereof by the holder in person or by duly authorized attorney,
properly endorsed or accompanied by a properly executed instrument of
transfer in the form of the Transfer Notice appearing on Receipts.
Thereupon the Depositary shall execute a new Receipt or Receipts evidencing
the same aggregate number of Depositary Shares as those evidenced by the
Receipt or Receipts surrendered and deliver such new Receipt or Receipts to
or upon the order of the person entitled thereto.
[SECTION 2.04. Redemption of Stock. Whenever the Company shall
elect to redeem shares of Stock in accordance with the Certificate of
Designations and the Certificate of Incorporation, it shall (unless other-
wise agreed in writing with the Depositary) give the Depositary in its
capacity as Depositary not less than five Business Days' prior notice of
the proposed date of the mailing of a notice of redemption of Stock and the
simultaneous redemption of the Depositary Shares representing the Stock to
be redeemed, and of the number of shares of Stock to be redeemed. The
Depositary shall, as directed by the Company in writing, mail, first class
postage prepaid, notice of the redemption of Stock and the simultaneous
redemption of the Depositary Shares representing the Stock to be redeemed,
not less than 30 and not more than 90 days prior to the date fixed for
redemption of such Stock and Depositary Shares, to the record holders of
the Receipts evidencing the Depositary Shares to be so redeemed, at the
addresses of such holders as the same appear on the records of the
Depositary. Notwithstanding the foregoing, neither failure to mail or
publish any such notice to one or more such holders nor any defect in any
notice shall affect the sufficiency of the proceedings for redemption with
respect to other holders. The Company shall provide the Depositary with
such notice, and each such notice shall state: the redemption date; the
number of Depositary Shares to be redeemed; if fewer than all the
Depositary Shares held by any holder are to be redeemed, the number or
proportion of such Depositary Shares held by such holder to be so redeemed;
the redemption price payable upon redemption; the place or places where
Receipts evidencing Depositary Shares to be redeemed are to be surrendered
for redemption; [that the Receipts called for redemption may be converted
at any time before the close of business on the [10th] day preceding the
date fixed for redemption or if such day is not a Business Day, the next
preceding Business Day, unless the Company defaults in the payment of the
redemption price,] whether the Company is depositing with a bank or trust
<PAGE>
company on or before the redemption date the cash payable by the Company,
and the proposed date of such deposit; and the amount of accrued and unpaid
dividends payable per share of Stock to be redeemed to and including such
redemption date, and that dividends in respect of the Stock represented by
the Depositary Shares to be redeemed will cease to accrue on such
redemption date (unless the Company shall default in delivering cash at the
time and place specified in such notice). On the date of any such
redemption, the Depositary shall surrender the certificate or certificates
held by the Depositary evidencing the number of shares of Stock to be
redeemed in the manner specified in the notice of redemption of Stock
provided by the Company pursuant to the Certificate of Designations. The
Depositary shall, thereafter, redeem the number of Depositary Shares
representing such redeemed Stock upon the surrender of Receipts evidencing
such Depositary Shares in the manner provided in the notice sent to record
holders of Receipts. In case fewer than all the outstanding Depositary
Shares are to be redeemed, the Depositary Shares to be redeemed shall be
selected by the Depositary by lot or on a pro rata basis or other equitable
means at the direction of the Company.
Notice having been mailed and published by the Depositary as
aforesaid, from and after the redemption date (unless the Company shall
have defaulted on the payment of the redemption price for the shares of
Stock to be redeemed by it), the Depositary Shares called for redemption
shall be deemed no longer to be outstanding and all rights of the holders
of Receipts evidencing such Depositary Shares (except the right to receive
the cash payable upon redemption upon surrender of such Receipts) shall, to
the extent of such Depositary Shares, cease and terminate. Upon surrender
in accordance with said notice of the Receipts evidencing such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall
so require), such Depositary Shares shall be redeemed for cash at a rate
for each Depositary Share equal to [insert fractional amount] of the
applicable rate set forth in the Certificate of Designations for each share
of Stock. The foregoing shall be subject further to the terms and condi-
tions of the Certificate of Designations.
If fewer than all of the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will [decrease the number of
Depositary Shares evidenced by such Global Receipt in the amount of the
Depositary Shares so redeemed,] [deliver to the holder of such Receipt upon
its surrender to the Depositary a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for redemption,]
together with payment of the redemption price and all accrued and unpaid
dividends to and including the date fixed for redemption payable in respect
of the Depositary Shares called for redemption.
The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the opening of business 15
days next preceding any selection of Depositary Shares and Stock to be
redeemed and ending at the close of business on the day of the mailing of
notice of redemption of Depositary Shares or (b) to transfer or exchange
for another Receipt any Receipt evidencing Depositary Shares called or
being called for redemption, in whole or in part, except as provided in the
preceding paragraph of this Section 2.04.]
[SECTION 2.05. Conversion at Option of Holder. Whenever a
record holder of Receipts shall [notify the Depositary of its election to
convert all or a portion of the Depositary Shares evidenced by such Global
Receipt into Common Stock] [duly deliver, in person or by a duly authorized
attorney, such Receipts (properly endorsed or assigned for transfer, as the
Depositary shall require) to the Depositary at the Depositary's Office],
and deliver written notice of such record holder's election to convert the
Depositary Shares evidenced by such Receipts into Common Stock (provided
that any request for conversion of Receipts evidencing Depositary Shares
<PAGE>
that have been called for redemption will not be honored if received by the
Depositary after the close of business on the 10th day preceding the date
fixed for redemption or if such day is not a Business Day, the next
preceding Business Day, unless the Company defaults in the payment of the
redemption price), the Depositary shall promptly notify the Company of such
record holder's election and [shall deliver to the Company certificates
evidencing such Stock as are represented by the Depositary Shares evidenced
by such Receipts delivered by such record holder for conversion] [shall
reduce the number of Depositary Shares evidenced by such Global Receipt by
the number of Depositary Shares so converted]. In the event of a
conversion during the period after the close of business on any record date
for the payment of dividends on the Stock to the opening of business on the
corresponding dividend payment date, the holder of Receipts requesting such
conversion shall accompany its request therefor to the Depositary with
payment in an amount equal to the dividend payable on such Stock on such
dividend payment date. From and after the close of business on any Busi-
ness Day on which a record holder duly delivers the foregoing documents to
the Depositary, such Depositary Shares shall be deemed converted into
Common Stock at a conversion rate per Depositary Share equal to [insert
fractional amount] of the conversion rate for each share of Stock as set
forth in the Certificate of Designations, which conversion rate will be
communicated to the Depositary, as holder of record of the Stock, from time
to time by the Company in writing.
From and after the conversion date (unless the Company shall have
failed to convert the shares of Stock to be converted by it upon the
surrender of the certificate or certificates therefor by the Depositary as
described in the preceding paragraph), the Depositary Shares subject to
conversion shall be deemed no longer to be outstanding and all rights of
the holders of Receipts evidencing such Depositary Shares (except the right
to receive the shares of Common Stock issuable upon conversion upon
surrender of such Receipts) shall, to the extent of such Depositary Shares,
cease and terminate.
To the extent that Depositary Shares are converted into shares of
Common Stock and all of such shares of Common Stock cannot be distributed
to the record holders of Receipts converted without creating fractional
interests in such shares, the Depositary will, at the direction of the
Company, make payment in lieu of such fractional interests in United States
dollars in an amount determined pursuant to the Certificate of Designations
and, subject to Sections 3.01 and 3.02, distribute or make available for
distribution such cash payment to the record holders that would otherwise
receive fractional interests in such shares of Common Stock.
Any notices received by the Depositary, as holder of the Stock,
pursuant to the provisions of the Certificate of Designations relating to
the conversion rights of the holders of the Stock, shall be promptly mailed
by the Depositary, first class postage prepaid, to the record holders of
the Receipts, at the addresses of such holders as the same appear on the
records of the Depositary.]
SECTION 2.06. Combination and Split-ups of Receipts. Upon
surrender of a Receipt or Receipts at the Depositary's Office or such other
office as the Depositary may designate for the purpose of effecting a
split-up or combination of Receipts, subject to the terms and conditions of
this Deposit Agreement, the Depositary shall execute and deliver a new
Receipt or Receipts in the authorized denominations requested evidencing
the same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered, provided, however, that the Depositary shall not
issue any Receipt evidencing a fractional Depositary Share or an uneven
number of Depositary Shares.
<PAGE>
SECTION 2.07. Absence of Withdrawal Rights. Holders of
Depositary Receipts are not entitled to receive the shares of Stock or
money and other property, if any, represented by the Depositary Shares
evidenced by such Receipts.
SECTION 2.08. Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange of Receipts. As a condition
precedent to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of any Receipt or the delivery
of any distribution thereon, the Depositary, any of the Depositary's Agents
or the Company may require any or all of the following: (i) payment to it
of a sum sufficient for the payment (or, in the event that the Depositary
or the Company shall have made such payment, the reimbursement to it) of
any tax or other governmental charge with respect thereto [(including any
such tax or charge with respect to the Common Stock or other securities or
property of the Company being issued upon conversion or redemption)]; (ii)
production of proof satisfactory to it as to the identity and genuineness
of any signature; (iii) production of a Transfer Notice in the form
appearing on the Receipts, together with the other documentation required
by such Transfer Notice; and (iv) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the provisions of this Deposit Agreement.
The registration of transfer, split-up, combination, surrender or
exchange of outstanding Receipts may be suspended (i) during any period
when the register of stockholders of the Company is closed, (ii) if any
such action is deemed necessary or advisable by the Depositary, any of the
Depositary's Agents or the Company at any time or from time to time because
of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement, or (iii) with
the approval of the Company, for any other reason. Without limitation of
the foregoing, the Depositary shall not knowingly accept for deposit under
this Deposit Agreement any shares of Stock that are required to be
registered under the Securities Act unless a registration statement under
the Securities Act is in effect as to such shares of Stock.
SECTION 2.09. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary shall execute and
deliver a Receipt of like form and tenor in exchange and substitution for
such mutilated Receipt or in lieu of and in substitution for such
destroyed, lost or stolen Receipt unless the Depositary has notice that
such Receipt has been acquired by a bona fide purchaser; provided, however,
that the holder thereof provides the Depositary with (i) evidence
satisfactory to the Depositary and the Company of such destruction, loss or
theft of such Receipt, of the authenticity thereof and of his ownership
thereof, (ii) reasonable indemnification satisfactory to the Depositary and
the Company or the payment of any charges incurred by the Depositary or the
Company in obtaining insurance in lieu of such indemnification and (iii)
payment of any expense (including fees, charges and expenses of the Deposi-
tary) in connection with such execution and delivery.
SECTION 2.10. Cancellation and Destruction of Surrendered
Receipts. All Receipts surrendered to the Depositary or any Depositary's
Agent shall be cancelled by the Depositary. Except as prohibited by
applicable law or regulation, the Depositary is authorized to destroy such
Receipts so cancelled and promptly deliver a certificate of destruction to
the Company.
SECTION 2.11. Transfer and Paying Agents. The transfer and
paying agent functions hereunder with respect to the Receipts shall
initially be performed by the Depositary. The Company shall have the
right, at its option at any time, to assume the obligations for the
<PAGE>
performance of such functions hereunder, or appoint a successor for such
purposes.
ARTICLE III
Certain Obligations of
Holders of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any holder of a Receipt may be required from time to time to file such
proof of residence, or other matters or other information, to execute such
certificates and to make such representations and warranties as the
Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold the delivery, or delay the
registration of transfer [, redemption] [conversion] or exchange, of any
Receipt or the distribution of any dividend or other distribution or the
sale of any rights or of the proceeds thereof until such proof or other
information is filed or such certificates are executed or such
representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
If any tax or other governmental charge shall become payable by or on
behalf of the Depositary with respect to (i) any Receipt, (ii) the
Depositary Shares evidenced by such Receipt, (iii) the Stock (or fractional
interest therein) or other property represented by such Depositary Shares,
or (iv) any transaction referred to in Section 4.06, such tax (including
transfer, issuance or acquisition taxes, if any) or governmental charge
shall be payable by the holder of such Receipt, who shall pay the amount
thereof to the Depositary. Until such payment is made, registration of
transfer of any Receipt or any split-up or combination thereof may be
refused, any dividend or other distribution may be withheld and any part or
all of the Stock or other property [(including Common Stock received in
connection with a conversion of Stock)] represented by the Depositary
Shares evidenced by such Receipt may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior
to such sale). Any dividend or other distribution so withheld and the
proceeds of any such sale may be applied to any payment of such tax or
other governmental charge, the holder of such Receipt remaining liable for
any deficiency.
SECTION 3.03. Withholding. The Depositary shall act as the tax
withholding agent for any payments, distributions and exchanges made with
respect to the Depositary Shares and Receipts, and the Stock, Common Stock
or other securities or assets represented thereby (collectively, the
"Securities"). The Depositary shall be responsible with respect to the
Securities for the timely (i) collection and deposit of any required
withholding or backup withholding tax, and (ii) filing of any information
returns or other documents with federal (and other applicable) taxing
authorities.
SECTION 3.04. Warranty as to Stock. The Company hereby
represents and warrants that the Stock, when issued, will be duly
authorized, validly issued, fully paid and nonassessable. Such
representation and warranty shall survive the deposit of the Stock and the
issuance of Receipts.
ARTICLE IV
The Stock; Notices
<PAGE>
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to holders
of Receipts on the record date fixed pursuant to Section 4.04 such amounts
of such dividend or distribution as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company
or the Depositary shall be required to withhold and shall withhold from any
cash dividend or other cash distribution in respect of the Stock an amount
on account of taxes, the amount made available for distribution or dis-
tributed in respect of Depositary Shares shall be reduced accordingly;
provided further, that if such withholding is required only as to a part of
the Stock or certain Depositary Shares, but not all of the Stock or Depos-
itary Shares generally, such reduction of the amount made available for
distribution or distributed in respect of the Depositary Shares shall only
affect the Depositary Shares as to which such withholding is required. The
Depositary shall distribute or make available for distribution, as the case
may be, only such amount, however, as can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent, and
any balance not so distributable shall be returned to the Company.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences
or Privileges. Whenever the Depositary shall receive any distribution
other than cash, rights, preferences or privileges upon Stock, the
Depositary shall, subject to Sections 3.01 and 3.02, distribute to holders
of Receipts on the record date fixed pursuant to Section 4.04 such amounts
of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Company, after consultation with
the Depositary, such distribution cannot be made proportionately among such
holders, or if for any other reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes) the
Depositary deems, after consultation with the Company, such distribution
not to be feasible, the Depositary may, with the approval of the Company,
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 property thus received, or any part thereof, at such
place or places and upon such terms as it may deem proper. The net
proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to such holders of Receipts as provided by Section 4.01 in the
case of a distribution received in cash.
SECTION 4.03. Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause to be offered to the
Depositary, as the person in whose name the Stock is registered on the
books of the Company, any rights, preferences or privileges to subscribe
for or to purchase any securities or any rights, preferences or privileges
of any other nature, such rights, preferences or privileges shall in each
such instance be made available by the Depositary to the record holders of
Receipts in such manner as the Company shall instruct (including by the
issue to such record holders of warrants representing such rights, prefer-
ences or privileges); provided, however, that (a) if at the time of issue
or offer of any such rights, preferences or privileges the Company
determines and instructs the Depositary that it is not lawful or feasible
to make such rights, preferences or privileges available to some or all
holders of Receipts (by the issue of warrants or otherwise) or (b) if and
to the extent instructed by holders of Receipts who do not desire to
exercise such rights, preferences or privileges, the Depositary shall then,
in each case, and if applicable laws or the terms of such rights,
preferences or privileges so permit, sell such rights, preferences or
<PAGE>
privileges of such holders at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any
such sale shall be distributed by the Depositary to the record holders of
Receipts entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash.
If registration under the Securities Act of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold such securities, the Company
shall promptly file a registration statement pursuant to the Securities Act
with respect to such rights, preferences or privileges and securities and
use its best efforts and take all steps available to it to cause such
registration statement to become effective sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders
to exercise such rights, preferences or privileges. In no event shall the
Depositary make available to the holders of Receipts any right, preference
or privilege to subscribe for or to purchase any securities unless and
until such registration statement shall have become effective or unless the
offering and sale of such securities to such holders are exempt from
registration under the provisions of the Securities Act.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required
in order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees with the Depositary that the
Company will use its reasonable best efforts to take such action or obtain
such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such holders
to exercise such rights, preferences or privileges.
SECTION 4.04. Notice of Dividends, Fixing of Record Date for
Holders of Receipts. Whenever (i) any cash dividend or other cash
distribution shall become payable, or any distribution other than cash
shall be made, or any rights, preferences or privileges shall at any time
be offered, with respect to the Stock, or (ii) the Depositary shall receive
notice of any matter submitted to the vote of the holders of Stock or with
respect to which holders of Stock are entitled to notice, or any election
on the part of the Company to call for the redemption of, any shares of
Stock, the Depositary, upon instruction by the Company, shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of
the holders of Receipts (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the
sale thereof, or (y) who shall be entitled to give instructions for the
exercise of voting rights with respect to such matter to be voted on or to
receive notice with respect to such matter to be voted on or of such
exchange or redemption.
SECTION 4.05. Voting Rights. Upon receipt of notice of any
matter submitted to the vote of the holders of Stock, the Depositary shall,
as soon as practicable thereafter, mail to the record holders of Receipts a
notice, which shall contain (i) such information as is contained in the
notice received by the Depositary, (ii) a statement that the holders of
Receipts at the close of business on a specified record date fixed pursuant
to Section 4.04 will be entitled, subject to any applicable provision of
law, the Certificate of Incorporation or the Certificate of Designations,
to instruct the Depositary as to the exercise of the voting rights
pertaining to the Stock represented by their respective Depositary Shares
and (iii) a brief statement as to the manner in which such instructions may
be given. Upon the written request of a holder of a Receipt on such record
date, the Depositary shall endeavor, insofar as practicable, to vote or
cause to be voted the Stock represented by the Depositary Shares evidenced
by such Receipt in accordance with the instructions set forth in such
<PAGE>
request. The Company hereby agrees to take all reasonable action that may
be deemed necessary by the Depositary in order to enable the Depositary to
vote such Stock or cause such Stock to be voted. In the absence of
specific instructions from the holder of a Receipt, the Depositary will
abstain from voting to the extent of the Stock represented by the
Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Stock and Reclassifications,
Recapitalizations, etc. Upon any split-up, consolidation or any other
reclassification of Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation affecting the Company or to which it
is a party or sale of all or substantially all of the Company's assets, the
Depositary shall treat any shares of stock or other securities or property
(including cash) that shall be received by the Depositary in exchange for
or upon conversion of or in respect of the Stock as new deposited property
under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of holders thereof in the
new deposited property so received in exchange for or upon conversion or in
respect of such Stock. In any such case the Depositary may, in its
discretion, with the approval of the Company, execute and deliver
additional Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited property.
SECTION 4.07. Reports. The Company or, at the option of the
Company, the Depositary shall forward to the holders of Receipts any
reports and communications received from the Company that are received by
the Depositary as the holder of Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request
from time to time by the Company, the Depositary shall furnish to it a
list, as of a recent date, of the names, addresses and holdings of
Depositary Shares of all persons in whose names Receipts are registered on
the books of the Depositary. At the expense of the Company, the Company
shall have the right to inspect transfer and registration records of the
Depositary, any Depositary's Agent or the Registrar, take copies thereof
and require the Depositary, any Depositary's Agent or the Registrar to
supply copies of such portions of such records as the Company may request.
ARTICLE V
The Depositary, the Depositary's Agents,
the Transfer Agent, the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary; Registrar. Upon execution of this Deposit
Agreement in accordance with its terms, the Depositary shall maintain (i)
at the Depositary's Office facilities for the execution and delivery,
registration, registration of transfer, surrender and exchange, split-up,
[and] combination[, conversion] [and redemption] of Receipts and (ii) at
the offices of the Depositary's Agents, if any, facilities for the
delivery, registration, registration of transfer, surrender and exchange,
split-up, [and] combination[, conversion] [and redemption] of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for
the registration and registration of transfer of Receipts, which books
shall be open during regular business hours for inspection by the holders
of Receipts; provided that (a) any such holder requesting to exercise such
right shall certify to the Depositary that such inspection shall be for a
proper purpose reasonably related to such person's interest as an owner of
<PAGE>
Depositary Shares evidenced by the Receipts and (b) the Company shall have
given its consent to such inspection, which consent shall not be
unreasonably withheld.
The Depositary may close such books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares
evidenced thereby. If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall be listed
on the New York Stock Exchange, the Depositary will appoint a Registrar
(acceptable to the Company) for registration of such Receipts or Depositary
Shares in accordance with any requirements of such Exchange. Such
Registrar (which may be the Depositary if so permitted by the requirements
of such Exchange) may be removed and a substitute registrar appointed by
the Depositary upon the request or with the approval of the Company. If
the Receipts, such Depositary Shares or such Stock are listed on one or
more other stock exchanges, the Depositary will, at the request of the
Company, arrange such facilities for the delivery, registration,
registration of transfer, surrender and exchange of such Receipts, such
Depositary Shares or such Stock as may be required by law or applicable
stock exchange regulation.
SECTION 5.02. Prevention or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither
the Depositary nor any Depositary's Agent nor the Registrar nor the Company
shall incur any liability to any holder of any Receipt, if by reason of any
provision of any present or future law or regulation thereunder of the
United States of America or of any other governmental authority or, in the
case of the Depositary, the Registrar or any Depositary's Agent, by reason
of any provision, present or future, of the Certificate of Incorporation or
the Certificate of Designations or, in the case of the Depositary, the
Registrar, any Depositary's Agent or the Company, by reason of any act of
God or war or other circumstances beyond the control of the relevant party,
the Depositary, any Depositary's Agent, the Registrar or the Company shall
be prevented or forbidden from doing or performing any act or thing that
the terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Depositary's Agent, the Registrar or the Company
incur any liability to any holder of a Receipt (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act
or thing that the terms of this Deposit Agreement provide shall or may be
done or performed, or (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement except, in
the case of the Depositary, any Depositary's Agent or the Registrar, if any
such exercise or failure to exercise discretion is caused by its negligence
or bad faith.
SECTION 5.03. Obligation of the Depositary, the Depositary's
Agents, the Registrar and the Company. The Company assumes no obligation
and shall be subject to no liability under this Deposit Agreement or the
Receipts to holders or other persons, except to perform in good faith such
obligations as are specifically set forth and undertaken by it to perform
in this Deposit Agreement. Each of the Depositary, the Depositary's Agents
and the Registrar assumes no obligation and shall be subject to no
liability under this Deposit Agreement or the Receipts to holders or other
persons, except to perform such obligations as are specifically set forth
and undertaken by it to perform in this Deposit Agreement without
negligence or bad faith.
None of the Depositary, any Depositary's Agent, any Registrar,
any transfer agent nor the Company shall be under any obligation to appear
<PAGE>
in, prosecute or defend any action, suit or other proceeding in respect of
the Stock, the Depositary Shares or the Receipts that in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability shall be furnished as often as may be
required.
None of the Depositary, any Depositary's Agent, any Registrar,
any transfer agent nor the Company shall be liable for any action or any
failure to act by it in reliance upon the advice of legal counsel or
accountants, or information from any person presenting Stock for deposit,
any holder of a Receipt or any other person believed by it in good faith to
be competent to give such advice or information. The Depositary and the
Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or
parties.
The Depositary shall not be responsible for any failure to carry
out any instruction to vote any of the shares of Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is
in good faith. The Depositary, the Registrar and any Depositary's Agent
may own and deal in any class of securities of the Company and its
affiliates and in Receipts or Depositary Shares. The Depositary or any
Registrar or transfer agent may also act as transfer agent or registrar of
any of the securities of the Company and its affiliates.
The Depositary undertakes not to issue any Receipt other than to
evidence the Depositary Shares representing a fraction of the shares of
Stock on deposit with the Depositary.
The Depositary assumes no responsibility for the correctness of
the description that appears in the Receipts, which is a statement of the
Company summarizing certain provisions of this Deposit Agreement.
Notwithstanding any other provision herein or in the Receipts, neither the
Depositary (or its officers, directors, employees or agents) nor any
Depositary's Agent nor the Registrar makes any representation or warranty
or has any responsibility as to the validity, genuineness or sufficiency of
any Stock at any time deposited with the Depositary hereunder or of the
Depositary Shares or any instruments referred to therein or herein, or, as
to the validity or sufficiency of this Deposit Agreement, as to the value
of the Depositary Shares or as to any right, title or interest of the
record holders of Receipts in and to the Depositary Shares or as to the
correctness of any statement made therein or herein; except that the
Depositary hereby represents and warrants as follows: (i) the Depositary
has been duly organized and is validly existing and in good standing under
the laws of the State of , with full power, authority and legal
right under such law to execute, deliver and carry out the terms of this
Deposit Agreement; (ii) this Deposit Agreement has been duly authorized,
executed and delivered by the Depositary; and (iii) this Deposit Agreement
constitutes a valid and binding obligation of the Depositary, enforceable
against the Depositary in accordance with its terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law). The Depositary shall not be accountable for the use or
application by the Company of the Depositary Shares or the Receipts or the
proceeds thereof.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
<PAGE>
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign
as Depositary hereunder by delivering written notice of its election to do
so to the Company, such resignation to take effect upon the appointment of
a successor Depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by
notice of such removal delivered to the Depositary, such removal to take
effect upon the appointment of a successor Depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign
or be removed, the Company shall, within 60 days after the delivery of the
notice of resignation or removal, as the case may be, appoint a successor
Depositary, which shall be a bank or trust company having its principal
office in the United States of America and having a combined capital and
surplus of at least $50,000,000. If no successor Depositary shall have
been so appointed and have accepted appointment within 60 days after
delivery of such notice, the resigning or removed Depositary may petition
any court of competent jurisdiction for the appointment of a successor
Depositary. Every successor Depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment hereunder, and thereupon such successor Depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor and for all purposes shall be the
Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and upon the written request of the Company, shall
execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder, shall duly assign, transfer and
deliver all right, title and interest in the Stock and any moneys or
property held hereunder to such successor, and shall deliver to such
successor a list of the holders of all outstanding Receipts and such
records, books and other information in its possession relating thereto.
Any successor Depositary shall promptly mail notice of its appointment to
the holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without
the execution or filing of any document or any further act, and notice
thereof shall not be required hereunder. Such successor depositary may
execute the Receipts either in the name of the predecessor depositary or in
the name of the successor depositary.
SECTION 5.05. Corporate Notices and Reports. The Depositary
shall deliver on the Company's behalf to the holders of Receipts, all
notices and reports (including without limitation financial statements)
required by law or by the rules of any national securities exchange upon
which the Stock, the Depositary Shares or the Receipts are listed, to be
furnished to the holders of Receipts. The Company shall reimburse the
Depositary for its expenses in connection with the delivery of such
information and shall provide the Depositary with copies of such
information in the quantities the Depositary from time to time requests.
SECTION 5.06. Indemnification. The Company agrees to indemnify
the Depositary, any Depositary's Agent and any Registrar against, and hold
each of them harmless from, any liability, costs and expenses (including
reasonable fees and expenses of counsel) that may arise out of or in
connection with its acting as Depositary, Depositary's Agent or Registrar,
respectively, under this Deposit Agreement and the Receipts, except for any
liability arising out of negligence, bad faith or willful misconduct on the
part of any such person or persons.
<PAGE>
Any person seeking indemnification hereunder (an "indemnified
person") shall notify the Company in writing of the commencement of any
action or claim in respect of which indemnification may be sought promptly
after such indemnified person becomes aware of such commencement (provided
that the failure to make such notification shall not affect the
Depositary's rights (or those of the Depositary's Agent and any Registrar)
under this Section 5.06) and shall consult in good faith with the Company
as to the conduct of the defense of such action or claim, which shall be
reasonable in the circumstances. No indemnified person shall compromise or
settle any such action or claim without the consent of the Company, which
consent shall not be unreasonably withheld.
SECTION 5.07. Fees, Charges and Expenses. No fees, charges and
expenses of the Depositary or any Depositary's Agent hereunder or of any
Registrar shall be payable by any person other than the Company, except for
any taxes and other governmental charges and except as provided in this
Deposit Agreement. If, at the request of a holder of a Receipt, the
Depositary incurs fees, charges or expenses for which it is not otherwise
liable hereunder, such holder or other person will be liable for such fees,
charges and expenses. All other fees, charges and expenses of the Depos-
itary and any Depositary's Agent hereunder and of any Registrar (including,
in each case, reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid from
time to time upon consultation and agreement between the Depositary and the
Company as to the amount and nature of such fees, charges and expenses.
ARTICLE VI
Amendment and Termination
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Deposit Agreement may at any time and from time to time
be amended by agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable; provided, however, that
no such amendment which shall materially and adversely alter the rights of
the holders of Receipts shall be effective unless such amendment shall have
been approved by the holders of at least a majority of the Depositary
Shares then outstanding. Every holder of an outstanding Receipt at the
time any such amendment becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be bound
by the Deposit Agreement as amended thereby.
SECTION 6.02. Termination. This Deposit Agreement may be
terminated by the Company or the Depositary only after [(i) all outstanding
Depositary Shares shall have been redeemed pursuant to Section 2.04 and all
shares of Common Stock, cash and other property shall have been distributed
to holders of Depositary Shares, (ii)] there shall have been made a final
distribution in respect of the Stock in connection with any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and such
distribution shall have been distributed to the holders of Depositary
Shares pursuant to Section 4.01 or 4.02, as applicable[, or (iii) each
share of Stock shall have been converted into shares of Common Stock] and
all shares of Common Stock, cash and other property shall have been
distributed to holders of Depositary Shares.
Upon the termination of this Deposit Agreement, the Company shall
be discharged from all obligations under this Deposit Agreement except for
its obligations to the Depositary, any Depositary's Agent and any Registrar
under Sections 5.06 and 5.07.
<PAGE>
ARTICLE VII
Miscellaneous
SECTION 7.01. Counterparts. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto
on separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Deposit
Agreement is for the exclusive benefit of the parties hereto, and their
respective successors hereunder, and shall not be deemed to give any legal
or equitable right, remedy or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more
of the provisions contained in this Deposit Agreement or in the Receipts
should be or become invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION 7.04. Notices. Any notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or by
facsimile transmission confirmed by letter, addressed to the Company at
1700 Lincoln Street, Denver, Colorado 80203, Attention: Secretary, or at
any other place to which the Company may have transferred its principal
executive office.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by facsimile transmission
confirmed by letter, addressed to the Depositary at
, or at any other address of which the Depositary
shall have notified the Company in writing.
Any and all notices to be given to any holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by mail, or by
telegram or facsimile transmission confirmed by letter, addressed to such
holder at the address of such holder as it appears on the books of the
Depositary, or if such holder shall have filed with the Depositary a
written request that notices intended for such holder be mailed to some
other address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or facsimile
transmission shall be deemed to be effected at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case
of a telegram or facsimile transmission) is deposited, postage prepaid, in
a post office letter box. The Depositary or the Company may, however,
without liability, act upon any telegram or facsimile transmission received
by it from the other or from any holder of a Receipt, notwithstanding that
such telegram or facsimile transmission shall not subsequently be confirmed
by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time
to time, with the prior consent of the Company, appoint Depositary's Agents
to act in any respect for the Depositary for the purposes of this Deposit
Agreement and may at any time appoint additional Depositary's Agents and
vary or terminate the appointment of such Depositary's Agents. The
Depositary will notify the Company of any such action and shall remain
<PAGE>
responsible for the performance of its obligations hereunder as if no
Depositary Agent were appointed.
The Company hereby also appoints the Depositary as Registrar and
transfer agent in respect of the Receipts and the Depositary hereby accepts
such appointments.
SECTION 7.06. Holders of Receipts Are Parties. Notwithstanding
that holders of Receipts have not executed and delivered this Deposit
Agreement or any counterpart hereof, the holders of Receipts from time to
time shall be deemed to be parties to this Deposit Agreement and shall be
bound by all of the terms and conditions, and be entitled to all of the
benefits, hereof and of the Receipts by acceptance of delivery of Receipts.
SECTION 7.07. Governing Law. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the laws of
the State of New York.
SECTION 7.08. Inspection of Deposit Agreement. Copies of this
Deposit Agreement and the Certificate of Designations shall be filed with
the Depositary and the Depositary's Agents and shall be open to inspection
during business hours at the Depositary's Office and the respective offices
of the Depositary's Agents, if any, by any holder of a Receipt.
SECTION 7.09. Headings. The headings of articles and sections
in this Deposit Agreement and in the form of the Receipt set forth in
Exhibit A hereto have been inserted for convenience only and are not to be
regarded as a part of this Deposit Agreement or the Receipts or to have any
bearing upon the meaning or interpretation of any provision contained
herein or in the Receipts.
IN WITNESS WHEREOF, Newmont Mining Corporation and
have duly executed this Deposit Agreement as of the day
and year first above set forth and all holders of Receipts shall become
parties hereto by and upon acceptance by them of delivery of Receipts
issued in accordance with the terms hereof.
NEWMONT MINING CORPORATION
By:
Title:
, as Depositary
By: Title:
EXHIBIT A
[FORM OF DEPOSITARY RECEIPT]
<PAGE>
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE DEPOSITARY OR THE AGENT AUTHORIZED BY THE DEPOSITARY FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
DEPOSITARY RECEIPT
FOR
DEPOSITARY SHARES
EACH REPRESENTING [INSERT FRACTIONAL AMOUNT]
OF ONE SHARE OF
[DESIGNATION] PREFERRED STOCK
OF
NEWMONT MINING CORPORATION
(Incorporated under the Laws of the State of Delaware)
No. Depositary Shares
CUSIP #
(the "Depositary") hereby certifies that [CEDE &
CO.] is the registered owner of Depositary Shares (the
"Depositary Shares") (such number of Depositary Shares represented hereby
subject to adjustment on the records of the Depositary as described in the
Deposit Agreement referred to herein), each Depositary Share representing
[insert fractional amount] of one share of [Insert Designation] Preferred
Stock, $5.00 par value (the "Stock"), of Newmont Mining Corporation, a
corporation duly organized and existing under the laws of the State of
Delaware (the "Company"), deposited with the Depositary and the same
proportionate interest in any and all other property received by the Depos-
itary in respect of such shares of Stock and held by the Depositary under
the Deposit Agreement (as defined below). Subject to the terms of the
Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Stock
represented thereby, including the dividend[, conversion], voting, liquida-
tion and other rights contained in the Certificate of Designations
establishing the rights, preferences, privileges and limitations of the
Stock (the "Certificate of Designations"), copies of which are on file at
the office of the Depositary at which at any particular time its business
in respect of matters governed by the Deposit Agreement shall be adminis-
tered, which at the time of the execution of the Deposit Agreement is
located at the Depositary's corporate trust office in
(the "Depositary's Office").
This Depositary Receipt ("Receipt") shall not be entitled to any
benefits under the Deposit Agreement or be valid or obligatory for any
purpose unless this Receipt shall have been executed manually or, if a
Registrar for the Receipts (other than the Depositary) shall have been
appointed, by facsimile by the Depositary by the signature of a duly
authorized officer and, if executed by facsimile signature of the
<PAGE>
Depositary, shall have been countersigned manually by such Registrar by the
signature of a duly authorized officer.
THE DEPOSITARY ASSUMES NO RESPONSIBILITY FOR THE CORRECTNESS OF THE
DESCRIPTION SET FORTH IN THIS RECEIPT, WHICH IS A STATEMENT OF THE COMPANY
SUMMARIZING CERTAIN PROVISIONS OF THE DEPOSIT AGREEMENT. UNLESS EXPRESSLY
SET FORTH IN THE DEPOSIT AGREEMENT, THE DEPOSITARY MAKES NO WARRANTIES OR
REPRESENTATIONS AS TO THE VALIDITY, GENUINENESS OR SUFFICIENCY OF ANY STOCK
AT ANY TIME DEPOSITED WITH THE DEPOSITARY UNDER THE DEPOSIT AGREEMENT OR OF
THE DEPOSITARY SHARES, AS TO THE VALIDITY OR SUFFICIENCY OF THE DEPOSIT
AGREEMENT, AS TO THE VALUE OF THE DEPOSITARY SHARES OR AS TO ANY RIGHT,
TITLE OR INTEREST OF THE RECORD HOLDERS OF THE DEPOSITARY RECEIPTS IN AND
TO THE DEPOSITARY SHARES.
The Company will furnish to the holder of this Receipt without
charge, upon request addressed to its executive office, a full statement of
the designations, relative rights, preferences and limitations of the
shares of each authorized class, and of each class of preferred stock
authorized to be issued, so far as the same may have been fixed, and a
statement of the authority of the Board of Directors of the Company to
designate and fix the relative rights, preferences and limitations of other
classes.
This Receipt is continued on the reverse hereof and the
additional provisions therein set forth for all purposes have the same
effect as if set forth at this place.
Dated:
, Depositary,
Transfer Agent and Registrar
By:
Authorized Signature
Further Conditions and Agreements Forming Part of this Receipt Appear on
the Reverse Side.
EXHIBIT A
[FORM OF REVERSE
OF DEPOSITARY RECEIPT]
1. The Deposit Agreement. Depositary Receipts (the "Receipts"),
of which this Receipt is one, are made available upon the terms and
conditions set forth in the Deposit Agreement, dated as of
(the "Deposit Agreement"), among the Company, the Depositary and all
holders from time to time of Receipts. The Deposit Agreement (copies of
which are on file at the Depositary's Office, which at the time of the
execution of the Deposit Agreement is located at ,
and at the office of any agent of the Depositary) sets forth the rights of
holders of Receipts and the rights and duties of the Depositary. The
statements made on the face and the reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are subject to the
<PAGE>
detailed provisions thereof, to which reference is hereby made. In the
event of any conflict between the provisions of this Receipt and the
provisions of the Deposit Agreement, the provisions of the Deposit
Agreement will govern.
2. Definitions. Unless otherwise expressly herein provided, all
defined terms used herein shall have the meanings ascribed thereto in the
Deposit Agreement.
[3. Redemption of Stock. Whenever the Company shall elect to
redeem shares of Stock in accordance with the Certificate of Designations
and the Certificate of Incorporation, it shall (unless otherwise agreed in
writing with the Depositary) give the Depositary in its capacity as
Depositary not less than five Business Days' prior notice of the proposed
date of the mailing of a notice of redemption of Stock and the simultaneous
redemption of the Depositary Shares representing the Stock to be redeemed
and of the number of such shares of Stock held by the Depositary to be
redeemed. The Depositary shall, as directed by the Company in writing,
mail, first class postage prepaid, notice of the redemption of Stock and
the simultaneous redemption of Depositary Shares representing the Stock to
be redeemed, not less than 30 and not more than 90 days prior to the date
fixed for redemption of such Stock and Depositary Shares, to the record
holders of the Receipts evidencing the Depositary Shares to be so redeemed,
at the addresses of such holders as the same appear on the records of the
Depositary. On the date of any such redemption, the Depositary shall
surrender the certificate or certificates held by the Depositary evidencing
the number of shares of Stock to be redeemed in the manner specified in the
notice of redemption of Stock provided by the Company pursuant to the
Certificate of Designations. The Depositary shall, thereafter, redeem the
number of Depositary Shares representing such redeemed Stock upon the
surrender of Receipts evidencing such Depositary Shares in the manner
provided in the notice sent to record holders of Receipts. In case fewer
than all the outstanding Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed shall be selected by the Depositary by lot
or pro rata or in such equitable manner as the Company shall direct.
Notice having been mailed and published by the Depositary as aforesaid,
from and after the redemption date (unless the Company shall have defaulted
on the payment of the redemption price for the shares of Stock to be re-
deemed by it), the Depositary Shares called for redemption shall be deemed
no longer to be outstanding and all rights of the holders of Receipts
evidencing such Depositary Shares (except the right to receive the cash
payable upon redemption upon surrender of such Receipts) shall, to the
extent of such Depositary Shares, cease and terminate. Upon surrender in
accordance with said notice of the Receipts evidencing such Depositary
Shares (properly endorsed or assigned for transfer, if the Depositary shall
so require), such Depositary Shares shall be redeemed for cash at a rate
per Depositary Share equal to [insert fractional amount] of the applicable
rate set forth in the Certificate of Designations for each share of Stock
represented by such Depositary Shares. The foregoing is subject further to
the terms and conditions of the Certificate of Designations. If fewer than
all of the Depositary Shares evidenced by this Receipt are called for
redemption, the Depositary will [decrease the number of Depositary Shares
evidenced hereby in the amount of the Depositary Shares so redeemed]
[deliver to the holder of such Receipt upon its surrender to the Depositary
a new Receipt evidencing the Depositary Shares evidenced by such prior
Receipt and not called for redemption,] and will make payment of the
redemption price and all accrued and unpaid dividends to and including the
date fixed for redemption payable in respect of the Depositary Shares
called for redemption.]
[4. Conversion at Option of Holder. Whenever a record holder of
Receipts shall [notify the Depositary of its election to convert all or a
portion of the Depositary Shares evidenced hereby into Common Stock] [duly
<PAGE>
deliver, in person or by a duly authorized attorney, such Receipts (prop-
erly endorsed or assigned for transfer, as the Depositary shall require) to
the Depositary at the Depositary's Office,] and deliver written notice of
such record holder's election to convert the Depositary Shares evidenced
hereby into Common Stock (provided that any request for conversion of
Receipts evidencing Depositary Shares that have been called for redemption
will not be honored if received by the Depositary after the close of busi-
ness on the 10th day preceding the date fixed for redemption or if such day
is not a Business Day, the next preceding Business Day, unless the Company
defaults in the payment of the redemption price), the Depositary shall
promptly notify the Company of such record holder's election, and [shall
deliver to the Company certificates evidencing such Stock as are
represented by the Depositary Shares evidenced by such Receipts delivered
by such record holder for conversion] [shall reduce the number of
Depositary Shares evidenced hereby by the number of Depositary Shares so
converted]. In the event of a conversion during the period after the close
of business on any record date for the payment of dividends on the Stock to
the opening of business on the corresponding dividend payment date, the
holder of Receipts requesting such conversion shall accompany its request
therefor to the Depositary with payment in an amount equal to the dividend
payable on such Stock on such dividend payment date. From and after the
close of business on any Business Day on which a record holder duly deliv-
ers the foregoing documents to the Depositary, such Depositary Shares shall
be deemed converted into Common Stock at a conversion rate per Depositary
Share equal to [insert fractional amount] of the conversion rate for each
share of Stock as set forth in the Certificate of Designations, which
conversion rate will be communicated to the Depositary, as holder of record
of the Stock, from time to time by the Company in writing.
From and after the conversion date (unless the Company shall have
failed to convert the shares of Stock to be converted by it upon the
surrender of the certificate or certificates therefor by the Depositary as
described in the preceding paragraph), the Depositary Shares subject to
conversion shall be deemed no longer to be outstanding and all rights of
the holders of Receipts evidencing such Depositary Shares (except the right
to receive the cash, securities or shares of Common Stock payable upon
conversion upon surrender of such Receipts) shall, to the extent of such
Depositary Shares, cease and terminate.
To the extent that Depositary Shares are converted into shares of
Common Stock and all of such shares of Common Stock cannot be distributed
to the record holders of Receipts converted without creating fractional
interests in such shares, the Depositary will make payment in lieu of such
fractional interests in United States dollars in any amount determined
pursuant to the Certificate of Designations and, subject to Sections 3.01
and 3.02 of the Deposit Agreement, distribute or make available for
distribution such cash payment to the record holders that would otherwise
receive fractional interests in such shares of Common Stock.]
5. Absence of Withdrawal Rights. Holders of Depositary Receipts
are not entitled to receive the shares of Stock or money and other
property, if any, represented by the Depositary Shares evidenced by such
Receipts.
6. Transfers, Split-ups, Combinations. Subject to Paragraphs 7,
8, and 9 below, this Receipt is transferable on the books of the Depositary
upon surrender of this Receipt to the Depositary at the Depositary's
Office, or at such other offices as the Depositary may designate, with the
Form of Transfer Notice hereon properly completed and executed, and upon
such transfer the Depositary shall sign and deliver a Receipt or Receipts
to or upon the order of the person entitled thereto, all as provided in and
subject to the Deposit Agreement. This Receipt may be split into other
Receipts or combined with other Receipts into one Receipt evidencing the
<PAGE>
same aggregate number of Depositary Shares evidenced by the Receipt or
Receipts surrendered; provided, however, that the Depositary shall not
issue any Receipt evidencing a fractional Depositary Share or an uneven
number of Depositary Shares.
7. Conditions to Signing and Delivery, Transfer, etc. of
Receipts. Prior to the execution and delivery, registration of transfer,
split-up, combination, surrender or exchange of this Receipt or the
delivery of any distribution hereon, the Depositary, any of the
Depositary's Agents or the Company may require any or all of the following:
(i) payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any tax or other governmental charge with respect
thereto [(including any such tax or charge with respect to Stock being
deposited or withdrawn or with respect to Common Stock or other securities
or property of the Company being issued upon conversion or redemption)];
(ii) production of proof satisfactory to it as to the identity and
genuineness of any signature; (iii) production of a Transfer Notice in the
form appearing on this Receipt, together with the other documentation
required by such Transfer Notice; and (iv) compliance with such reasonable
regulations, if any, as the Depositary or the Company may establish not
inconsistent with the Deposit Agreement. Any holder of this Receipt may be
required to file such proof or information, to execute such certificates
and to make such representations and warranties as the Depositary or the
Company may reasonably deem necessary or proper. The Depositary or the
Company may withhold or delay the delivery of this Receipt, the
registration of transfer, [redemption] [, conversion] or exchange of this
Receipt or the distribution of any dividend or other distribution or the
sale of any rights or of the proceeds thereof until such proof or other
information is filed, such certificates are executed or such representa-
tions and warranties are made.
8. Suspension of Delivery, Transfer, etc. The registration of
transfer, split-up, combination, surrender or exchange of this Receipt may
be suspended (i) during any period when the register of stockholders of the
Company is closed, (ii) if any such action is deemed necessary or advisable
by the Depositary, any of the Depositary's Agents or the Company at any
time or from time to time because of any requirement of law or of any
government or governmental body or commission, or under any provision of
the Deposit Agreement, or (iii) with the approval of the Company, for any
other reason. [The Depositary shall not be required (a) to issue, transfer
or exchange any Receipts for a period beginning at the opening of business
15 days next preceding any selection of Depositary Shares and Stock to be
redeemed and ending at the close of business on the day of the mailing of
notice of redemption of Depositary Shares or (b) to transfer or exchange
for another Receipt any Receipt evidencing Depositary Shares called or
being called for redemption, in whole or in part, except as provided in the
last sentence of Paragraph 3.]
9. Payment of Taxes or Other Governmental Charges. If any tax
or other governmental charge shall become payable by or on behalf of the
Depositary with respect to (i) this Receipt, (ii) the Depositary Shares
evidenced by this Receipt, (iii) the Stock (or fractional interest therein)
or other property represented by such Depositary Shares, or (iv) any
transaction referred to in Section 4.06 of the Deposit Agreement, such tax
(including transfer, issuance or acquisition taxes, if any) or governmental
charge shall be payable by the holder of this Receipt, who shall pay the
amount thereof to the Depositary. Until such payment is made, registration
of transfer of this Receipt or any split-up or combination hereof may be
refused, any dividend or other distribution may be withheld and any part or
all of the Stock or other property [(including Common Stock received in
connection with a conversion of Stock)] represented by the Depositary
Shares evidenced by this Receipt may be sold for the account of the holder
<PAGE>
hereof (after attempting by reasonable means to notify such holder prior to
such sale). Any dividend or other distribution so withheld and the
proceeds of any such sale may be applied to any payment of such tax or
other governmental charge, the holder of this Receipt remaining liable for
any deficiency.
10. Amendment. The forms of the Receipts and any provision of
the Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they
may deem necessary or desirable; provided, however, that no such amendment
that shall materially and adversely alter the rights of the holders of
Receipts shall be effective as to outstanding Receipts unless such
amendment shall have been approved by the holders of at least a majority of
the Depositary Shares outstanding. Every holder of an outstanding Receipt
at the time any such amendment so becomes effective shall be deemed, by
continuing to hold such Receipt, to consent and agree to such amendment and
to be bound by such Receipt and the Deposit Agreement as amended thereby.
11. Fees, Charges and Expenses. The Company will pay all fees,
charges and expenses of the Depositary, except for taxes (including
transfer taxes, if any) and other governmental charges and such charges as
are expressly provided in the Deposit Agreement to be at the expense of
holders of Receipts or other persons.
12. Title to Receipts. It is a condition of this Receipt, and
every successive holder hereof by accepting or holding the same consents
and agrees, that title to this Receipt (and to the Depositary Shares
evidenced hereby), when properly endorsed or accompanied by a properly
executed instrument of transfer in the form of the Transfer Notice
appearing on this Receipt, is transferable by delivery with the same effect
as in the case of a negotiable instrument; provided, however, that the
Depositary may, notwithstanding any notice to the contrary, treat the
record holder hereof at such time as the absolute owner hereof for the
purpose of determining the person entitled to distribution of dividends or
other distributions or to any notice provided for in the Deposit Agreement
and for all other purposes.
13. Dividends and Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Stock, the
Depositary shall, subject to the provisions of the Deposit Agreement,
distribute to record holders of Receipts such amounts of such sums as are,
as nearly as practicable, in proportion to the respective numbers of
Depositary Shares evidenced by the Receipts held by such holders; provided,
however, that in case the Company or the Depositary shall be required by
law to withhold and does withhold from any cash dividend or other cash
distribution in respect of the Stock an amount on account of taxes, the
amount made available for distribution or distributed in respect of
Depositary Shares shall be reduced accordingly; provided further, that if
such withholding is required only with respect to a certain number of
shares of the Stock or certain Depositary Shares, but not all of the Stock
or Depositary Shares generally, such reduction of the amount made available
for distribution or distributed in respect of the Depositary Shares shall
only affect the Depositary Shares as to which such withholding is required.
The Depositary shall distribute or make available for distribution, as the
case may be, only such amount, however, as can be distributed without
attributing to any record holder of Receipts a fraction of one cent and any
balance not so distributable shall be returned to the Company. In the
event of a distribution other than cash or as otherwise provided in
Paragraph 14, the Depositary will distribute property received by it to the
record holders of Receipts, as nearly as practicable, in proportion to the
respective number of Depositary Shares evidenced by the Receipts held by
such holders, in any manner that the Depositary and the Company may deem
equitable and practicable for accomplishing such distribution, unless, in
<PAGE>
the opinion of the Company after consultation with the Depositary, such
distribution cannot be made proportionately among such record holders, or
if for any other reason (including any tax withholding or securities law
requirement), the Depositary deems, after consultation with the Company,
such distribution not to be lawful or feasible, in which case the
Depositary may, with the approval of the Company, adopt such method as it
deems equitable and practical for purposes of effecting such distribution,
including the sale of such property and distribution of the net proceeds
from such sale to such holders.
14. Subscription Rights, Preferences or Privileges. If the
Company shall at any time offer or cause to be offered to the Depositary,
as the person in whose name the Stock is registered on the books of the
Company, any rights, preferences or privileges to subscribe for or to
purchase any securities or any rights, preferences or privileges of any
other nature, such rights, preferences or privileges shall in each such
instance, subject to the provisions of the Deposit Agreement, be made
available by the Depositary to the record holders of Receipts in such
manner as the Company shall instruct.
15. Notice of Dividends, Fixing of Record Date. Whenever (i)
any cash dividend or other cash distribution shall become payable, or any
distribution other than cash shall be made, or any rights, preferences or
privileges shall at any time be offered, with respect to the Stock, or (ii)
the Depositary shall receive notice of any matter submitted to the vote of
the holders of Stock or with respect to which holders of Stock are entitled
to notice, or any election on the part of the Company to call for
redemption any shares of Stock, the Depositary shall in each such instance
fix a record date (which shall be the same date as the record date fixed by
the Company with respect to the Stock) for the determination of the holders
of Receipts (x) who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the
sale thereof, or (y) who shall be entitled to give instructions for the
exercise of voting rights with respect to the matter to be voted on or to
receive notice with respect to the matter to be voted on or to receive
notice of such redemption.
16. Voting Rights. Upon receipt of notice of any matter
submitted to the vote of the holders of Stock, the Depositary shall, as
soon as practicable thereafter, mail to the record holders of Receipts a
notice, which shall contain (i) such information as is contained in the
notice received by the Depositary, (ii) a statement that the holders of
Receipts at the Close of business on a specified record date determined as
provided in Paragraph 15 will be entitled, subject to any applicable
provision of law, the Certificate of Incorporation or the Certificate of
Designations, to instruct the Depositary as to the exercise of the voting
rights pertaining to the Stock represented by their respective Depositary
Shares, and (iii) a brief statement as to the manner in which such in-
structions may be given. Upon the written request of a holder of this
Receipt on such record date the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the Stock represented by the
Depositary Shares evidenced by this Receipt in accordance with the
instructions set forth in such request. The Company hereby agrees to take
all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Stock or cause such Stock to be
voted. In the absence of specific instructions from the holder of this
Receipt, the Depositary will abstain from voting to the extent of the Stock
represented by the Depositary Shares evidenced by this Receipt.
17. Reports, Inspection of Transfer Books. The Depositary shall
make available for inspection by holders of Receipts at the Depositary's
Office and at such other places as it may from time to time deem advisable
during normal business hours any reports and communications received from
<PAGE>
the Company that are received by the Depositary as the holder of Stock.
The Depositary, acting as transfer agent and Registrar, shall keep books at
the Depositary's Office for the registration and transfer of Receipts,
which books at all reasonable times will be open for inspection by the
record holders of Receipts; provided that any such holder requesting to
exercise such right shall certify to the Depositary that such inspection
shall be for a proper purpose reasonably related to such person's interest
as an owner of Depositary Shares.
18. Liability of the Depositary, the Depositary's Agents, the
Registrar and the Company. Neither the Depositary nor any Depositary's
Agent nor the Registrar nor the Company shall incur any liability to any
holder of this Receipt, if by reason of any provision of any present or
future law or regulation thereunder of any governmental authority or, in
the case of the Depositary, the Registrar or any Depositary's Agent, by
reason of any provision present or future, of the Certificate of
Incorporation or the Certificate of Designations or, in the case of the
Depositary, the Registrar, any Depositary's Agent or the Company, by reason
of any act of God or war or other circumstances beyond the control of the
relevant party, the Depositary, any Depositary's Agent, the Registrar or
the Company shall be prevented or forbidden from doing or performing any
act or thing that the terms of the Deposit Agreement provide shall be done
or performed; nor shall the Depositary, any Depositary's Agent, the
Registrar or the Company incur any liability to any holder of this Receipt
(i) by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing that the terms of the Deposit Agreement
provide shall or may be done or performed or (ii) by reason of any exercise
of, or failure to exercise, any discretion provided for in the Deposit
Agreement except, in the case of the Depositary, any Depositary's Agent or
the Registrar, if such exercise or failure to exercise discretion is caused
by its negligence or bad faith.
19. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company. The Company assumes no obligation and shall be
subject to no liability under the Deposit Agreement or this Receipt to the
holder hereof or other persons, except to perform in good faith such
obligations as are specifically set forth and undertaken by it to perform
in the Deposit Agreement. Each of the Depositary, the Depositary's Agents
and the Registrar assumes no obligation and shall be subject to no
liability under the Deposit Agreement or this Receipt to the holder hereof
or other persons, except to perform such obligations as are specifically
set forth and undertaken by it to perform in the Deposit Agreement without
negligence or bad faith.
None of the Depositary, any Depositary's Agent, any Registrar,
any transfer agent nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding with respect
to the Securities in its opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expense and liability be
furnished as often as may be required.
None of the Depositary, any Depositary's Agent, any Registrar,
any transfer agent nor the Company will be liable for any action or failure
to act by it in reliance upon the advice of or information from legal
counsel, accountants, any holder of this Receipt or any other person
believed by it in good faith to be competent to give such advice or
information. The Depositary and the Company may each rely and shall each
be protected in acting upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or presented
by the proper party or parties.
20. Termination of Deposit Agreement. The Deposit Agreement may
be terminated by the Company or the Depositary only after [(i) all
<PAGE>
outstanding Depositary Shares shall have been redeemed pursuant to Section
2.04 thereof and all shares of Common Stock, cash and other property shall
have been distributed to holders of Depositary Shares, (ii)] there shall
have been made a final distribution in respect of the Stock in connection
with any voluntary or involuntary liquidation, dissolution or winding-up of
the Company and such distribution shall have been distributed to the
holders of Depositary Shares pursuant to Section 4.01 or 4.02, as
applicable[, or (iii) each share of Stock shall have been converted into
shares of Common Stock] and all shares of Common Stock, cash and other
property shall have been distributed to holders of Depositary Shares.
21. Governing Law. The Deposit Agreement and this Receipt and
all rights thereunder and hereunder and provisions thereof and hereof shall
be governed by, and construed in accordance with, the laws of the State of
New York.
EXHIBIT B
CONVERSION NOTICE
[INCLUDE IF CONVERTIBLE]
To NEWMONT MINING CORPORATION
The undersigned owner of the Depositary Shares evidenced by this
Receipt hereby irrevocably exercises the option to convert the shares of
[Insert Designation] Convertible Preferred Stock, $5.00 par value, of
Newmont Mining Corporation represented by such Depositary Shares or the
number of full shares represented by the number of Depositary Shares set
forth below, into shares of Common Stock of Newmont Mining Corporation in
accordance with the terms of the Restated Certificate of Incorporation, as
amended, and the statement of designations, preferences and relative rights
of the aforementioned Convertible Preferred Stock, and directs that the
shares issuable and deliverable upon the conversion, together with any
check in payment for fractional shares be issued in the name of and
delivered to the undersigned unless a different name has been indicated
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay any transfer taxes payable with
respect thereto.
Dated:
Fill in for registration of shares:
<TABLE>
(Name) (Signature)
<S> <C>
Portion to be converted, if
less than all:
Depositary Shares
(Street Address)
<PAGE>
(City, State and Zip Code) Social Security or Other
(Please Print name and address) Identification Number
</TABLE>
EXHIBIT C
FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto the within Receipt and all rights and
interests represented by the Depositary Shares evidenced thereby, and
hereby irrevocably constitutes and appoints
his attorney, to transfer the same on the books of the within-named
Depositary, with full power of substitution in the premises.
<TABLE>
<S> <C>
Dated: Signature:
NOTE: The signature to this assignment must corres-
pond with the name as written upon the face
of the Receipt in every particular, without
alteration or enlargement, or any change
whatever.
</TABLE>
[FORM OF WARRANT AGREEMENT]
WARRANT AGREEMENT
between
NEWMONT MINING CORPORATION,
Company
and
<PAGE>
,
as Warrant Agent
Dated as of
<TABLE>
TABLE OF CONTENTS
Page
<S> <C>
ARTICLE I
FORM, EXECUTION, DELIVERY
AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Form of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Execution of Warrant Certificates . . . . . . . . . . . . . . . . . . . 2
SECTION 1.03. Countersignature and Delivery . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.04. Temporary Warrant Certificates . . . . . . . . . . . . . . . . . . . . 3
SECTION 1.05. Registration; Registration of
Transfers and Exchanges . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.06. Lost, Stolen, Destroyed,
Defaced or Mutilated
Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 1.07. Offices for Exercise, etc. . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE II
EXERCISE OF WARRANTS, WARRANT
EXERCISE PRICE AND DURATION
SECTION 2.01. Warrant Exercise Price, Exercise
and Delivery of Warrants . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.02. Duration of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANTS
SECTION 3.01. Enforcement of Rights . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE IV
CANCELLATION OF WARRANT CERTIFICATES,
PAYMENT OF TAXES[, CALL AND REDEMPTION
<PAGE>
OF WARRANTS BY THE COMPANY]
SECTION 4.01. Cancellation of Warrants . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.02. Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 4.03. Call of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE V
ADJUSTMENTS
SECTION 5.01. Adjustment of Warrant
Exercise Price and Number
of Shares; Notices . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.02. Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 5.03. Registration of the Shares Under
the Securities Act
and Other Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VI
CONCERNING THE WARRANT AGENT
SECTION 6.01. Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.02. Conditions of Warrant Agent's
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 6.03. Resignation and Appointment of
Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 7.02. Notices and Demands to the
Company and Warrant Agent . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 7.03. Addresses for Notices to
Parties and for Transmission of Documents . . . . . . . . . . . . . . 28
SECTION 7.04. Notices to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 7.05. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 7.06. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 7.07. Obtaining of Governmental
Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 7.08. Persons Having Rights under
Warrant Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 7.09. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 7.10. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 7.11. Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . 29
</TABLE>
WARRANT AGREEMENT
WARRANT AGREEMENT dated as of , between Newmont
Mining Corporation, a Delaware corporation (the "Company"), and
, a incorporated and existing under the
laws of (herein, with any successor Warrant Agent, the
"Warrant Agent").
WITNESSETH THAT:
<PAGE>
WHEREAS, the Company has duly authorized the issuance of
warrants (each a "Warrant," and collectively, the "Warrants"),
evidenced by warrant certificates (the "Warrant Certificates"), and each of
which entitles the holder thereof, at its option, to purchase, subject to
adjustment, from the Company, one share of common stock, par value $1.60
per share, of the Company (the "Common Stock");
[WHEREAS, Warrants shall be initially issued in connection with
the issuance of (the "Initial Securities") but shall be
separately transferable;]
WHEREAS, the Company desires that the Warrant Agent act on its
behalf in connection with the issuance, exchange, replacement, cancellation
and exercise of the Warrants.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto agree as follows:
ARTICLE I
FORM, EXECUTION, DELIVERY
AND REGISTRATION OF WARRANT CERTIFICATES
SECTION 1.01. Form of Warrant Certificates. The Warrant Cer-
tificates shall be in registered form only, substantially in the form set
forth in Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Agreement. Each Warrant Certificate may have imprinted or otherwise
reproduced thereon such letters, numbers or other marks of identification
and such legends or endorsements as may be required to comply with any
applicable law, rule or regulation or with the rules of any securities
exchange or as may, consistent with the provisions of this Agreement, be
determined by the officers executing any such Warrant Certificate, as
evidenced by their execution of the Warrant Certificate.
The definitive Warrant Certificates shall be printed,
lithographed or engraved in steel engraved borders or may be produced in
any other manner, all as determined by the officers executing such Warrant
Certificates, as evidenced by their execution of such Warrant Certificates.
SECTION 1.02. Execution of Warrant Certificates. The Warrant
Certificates shall be executed on behalf of the Company by both (a) the
chairman of its Board of Directors, the vice chairman of its Board of
Directors, its president or any vice president and (b) its treasurer, its
controller or its secretary, under its corporate seal which may, but need
not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the
Company may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Warrant Certificates.
Typographical and other minor errors or defects in any such reproduction of
the seal or any such signature shall not affect the validity or
enforceability of any Warrant Certificate that has been duly countersigned
and delivered by the Warrant Agent.
In case any officer of the Company who shall have signed any of
the Warrant Certificates shall cease to be such officer before the Warrant
Certificate so signed shall be countersigned and delivered by the Warrant
Agent or disposed of by the Company, such Warrant Certificate nevertheless
may be countersigned and delivered or disposed of as though the person who
signed such Warrant Certificate had not ceased to be such officer of the
Company; and any Warrant Certificate may be signed on behalf of the Company
<PAGE>
by such persons as, at the actual date of the execution of such Warrant
Certificate, shall be the proper officers of the Company, although at the
date of the execution and delivery of this Agreement any such person was
not such an officer.
SECTION 1.03. Countersignature and Delivery. Warrant
Certificates shall be manually countersigned and dated the date of
countersignature by the Warrant Agent and shall not be valid for any
purpose unless so countersigned. The Warrant Certificates shall be
numbered and shall be registered in the Warrant Register (as defined in
Section 1.05).
The Warrant Agent is authorized, upon receipt from the Company at
any time and from time to time of the Warrant Certificates, duly executed
as provided in Section 1.02, to countersign the Warrant Certificates and
deliver them to or upon the order of the Company, which order shall be
signed by both (a) the chairman of its Board of Directors, its vice
chairman of its Board of Directors, its president or any vice president and
(b) its treasurer, its controller, its secretary or any assistant
secretary, without any further action by the Company. Such
countersignature shall be by a duly authorized signatory of the Warrant
Agent (although it shall not be necessary for the same signatory to sign
all Warrant Certificates) and shall be conclusive evidence that the Warrant
Certificate so countersigned has been duly delivered hereunder.
In case any authorized signatory of the Warrant Agent who shall
have countersigned any of the Warrant Certificates shall cease to be such
authorized signatory before the Warrant Certificate shall be disposed of by
the Company, such Warrant Certificate nevertheless may be delivered or
disposed of as though the person who countersigns such Warrant Certificate
had not ceased to be such authorized signatory of the Warrant Agent; and
any Warrant Certificate may be countersigned on behalf of the Warrant Agent
by such persons as, at the actual time of the countersignature of such
Warrant Certificate, shall be the duly authorized signatories of the
Warrant Agent, although at the time of the execution and delivery of this
Agreement any such person is not such an authorized signatory.
The Warrant Agent's countersignature on all Warrant Certificates
shall be in substantially the form set forth in Exhibit A hereto.
SECTION 1.04. Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute,
and the Warrant Agent shall countersign and deliver, temporary Warrant
Certificates, which are printed, lithographed, typewritten or otherwise
produced, substantially of the tenor of the definitive Warrant Certificates
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing
such Warrant Certificates may determine, as evidenced by their execution of
such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the
temporary Warrant Certificates shall be exchangeable for definitive Warrant
Certificates upon surrender of the temporary Warrant Certificates at any
office or agency maintained by the Company for that purpose pursuant to
Section 1.07. Subject to the provisions of Section 1.05, such exchange
shall be without charge to the holder. Upon surrender for cancellation of
any one or more temporary Warrant Certificates, the Company shall execute,
and the Warrant Agent shall countersign and deliver in exchange therefor,
definitive Warrant Certificates representing in the aggregate a like number
of Warrants. Until so exchanged the holder of a temporary Warrant
<PAGE>
Certificate shall in all respects be entitled to the same benefits under
this Agreement as a holder of a definitive Warrant Certificate.
SECTION 1.05. Registration; Registration of Transfers and
Exchanges. The Warrant Agent will keep, at the office or agency maintained
by the Warrant Agent for such purpose, a register or registers in which,
subject to such reasonable regulations as it may prescribe, the Warrant
Agent shall provide for the registration of, and registration of transfer
and exchange of, Warrant Certificates as in this Article I provided. Each
person designated by the Company from time to time as a person authorized
to register the transfer and exchange of the Warrant Certificates is here-
inafter called, individually and collectively the "Registrar." The Company
hereby initially appoints the Warrant Agent as Registrar. Upon written
notice to the Warrant Agent and any acting Registrar, the Company may
appoint a successor Registrar for such purposes.
The Company will at all times designate one person (who may be
the Company and who need not be a Registrar) to act as repository of a
master list of names and addresses of the holders of the Warrants (the
"Warrant Register"). The Warrant Agent will act as such repository unless
and until some other person is, by written notice from the Company to the
Warrant Agent, designated by the Company to act as such. The Company shall
cause each Registrar to furnish to such repository, on a current basis,
such information as to all registrations of transfer and exchanges effected
by such Registrar, as may be necessary to enable such repository to
maintain the Warrant Register on as current a basis as is practicable.
The Company, the Warrant Agent, the Registrar and any agent of
the Company, the Warrant Agent or the Registrar may deem and treat the
person in whose name any Warrant Certificate shall be registered in the
Warrant Register as the absolute owner of such Warrant Certificate (not-
withstanding any notation of ownership or other writing thereon) for the
purpose of any exercise thereof or any distribution to the holder thereof
and for all other purposes; and neither the Company nor the Warrant Agent
nor the Registrar nor any agent of the Company, the Warrant Agent or the
Registrar shall be affected by any notice to the contrary.
Upon due presentation for registration of transfer of any Warrant
Certificate at any such office or agency to be maintained for the purpose
as provided in Section 1.07, the Company shall execute and the Warrant
Agent shall countersign and deliver (or cause to be delivered) in the name
of the transferee or transferees a new Warrant Certificate or Warrant
Certificates in authorized denominations for a like aggregate number of
Warrants bearing numbers or other distinguishing symbols not
contemporaneously outstanding.
Any Warrant Certificate or Warrant Certificates may be exchanged
for a Warrant Certificate or Warrant Certificates in other authorized
denominations, representing in the aggregate a like number of Warrants. A
Warrant Certificate or Warrant Certificates to be exchanged shall be
surrendered at any office or agency to be maintained by the Company for the
purpose as provided in Section 1.07, and the Company shall execute and the
Warrant Agent shall countersign and deliver (or cause to be delivered) in
exchange therefor the Warrant Certificate or Warrant Certificates bearing
numbers or other distinguishing symbols not contemporaneously outstanding.
All Warrants presented for registration of transfer or exchange
shall (if so required by the Company, the Warrant Agent or the Registrar)
be duly endorsed by the registered holder or holders thereof or by the duly
appointed legal representative thereof or by a duly authorized attorney,
such signature to be guaranteed by a commercial bank or trust company, by a
broker or dealer which is a member of the National Association of
Securities Dealers, Inc. (the "NASD") or by any member of a national secu-
<PAGE>
rities exchange, and shall be accompanied by a written instrument or
instruments of transfer or exchange, in form satisfactory to the Company,
the Warrant Agent and the Registrar.
No service charge shall be made for any transfer or exchange of
Warrant Certificates, but the Company may require payment from the holders
of such Warrant Certificates of a sum sufficient to cover any stamp or
other governmental charge or tax that may be imposed in connection with any
such transfer or exchange.
SECTION 1.06. Lost, Stolen, Destroyed, Defaced or Mutilated
Warrant Certificates. Upon receipt by the Company and the Warrant Agent of
evidence satisfactory to them of the loss, theft, destruction, defacement,
or mutilation of any Warrant Certificate and of indemnity satisfactory to
them and, in the case of mutilation or defacement, upon surrender thereof
to the Warrant Agent for cancellation, then the Company may in its discre-
tion execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen,
destroyed, defaced or mutilated Warrant Certificate, a new Warrant
Certificate having the same tenor and for a like number of Warrants,
bearing a number or other distinguishing symbol not contemporaneously
outstanding. Upon the issuance of any new Warrant Certificate under this
Section 1.06, the Company may require the payment from the holder of such
Warrant Certificate of a sum sufficient to cover any tax, stamp tax or
other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Warrant Agent and
the Registrar) in connection therewith. Every substitute Warrant
Certificate executed and delivered pursuant to this Section in lieu of any
lost, stolen or destroyed Warrant Certificate shall constitute an
additional contractual obligation of the Company, whether or not the lost,
stolen or destroyed Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of (but shall be subject to
all the limitations of rights set forth in) this Agreement equally and
proportionately with any and all other Warrant Certificates duly executed
and delivered hereunder. To the extent permitted by law, the provisions of
this Section 1.06 are exclusive with respect to the replacement of lost,
stolen, destroyed, defaced or mutilated Warrant Certificates and shall pre-
clude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement of lost, stolen, destroyed, defaced or mutilated Warrant
Certificates.
SECTION 1.07. Offices for Exercise, etc. So long as any of the
Warrants remain outstanding, the Company will designate and maintain in
[the Borough of Manhattan, The City of New York]: (a) an office or agency
where the Warrant Certificates may be presented for exercise, (b) an office
or agency where the Warrant Certificates may be presented for registration
of transfer and for exchange (including the exchange of temporary Warrant
Certificates for definitive Warrant Certificates pursuant to Section 1.04)
and (c) an office or agency where notices and demands to or upon the
Company in respect of the Warrants or of this Agreement may be served. The
Company may from time to time change or rescind such designation, as it may
deem desirable or expedient, provided, however, that an office or agency
shall at all times be maintained in [the Borough of Manhattan, The City of
New York], as provided in the first sentence of this Section. In addition
to such office or offices or agency or agencies, the Company may from time
to time designate and maintain one or more additional offices or agencies
within or outside [the Borough of Manhattan, The City of New York], where
Warrant Certificates may be presented for exercise or for registration of
transfer or for exchange, and the Company may from time to time change or
rescind such designation, as it may deem desirable or expedient. The
Company will give to the Warrant Agent written notice of the location of
any such office or agency and of any change of location thereof. The
<PAGE>
Company hereby designates the office of the Warrant Agent at
, as the initial office to be maintained by it
for each such purpose. In case the Company shall fail to maintain any such
office or agency or shall fail to give such notice of the location or of
any change in the location thereof, presentations and demands may be made
and notices may be served at the corporate trust office of the Warrant
Agent in , and the Company appoints
the Warrant Agent as its agent to receive all such presentations,
surrenders, notices and demands.
ARTICLE II
EXERCISE OF WARRANTS, WARRANT
EXERCISE PRICE AND DURATION
SECTION 2.01. Warrant Exercise Price, Exercise and Delivery of
Warrants. (a) Subject to the provisions of this Agreement, the holder of
each Warrant shall have the right to purchase from the Company (and the
Company shall issue and sell to such holder of the Warrant), on any
business day on or after the date of issuance and on or prior to 5:00 p.m.,
New York City time, on (the "Expiration Date"), one fully paid
and nonassessable share of Common Stock (such share of Common Stock
purchasable upon exercise of a Warrant being hereinafter referred to as a
"Share" and collectively as the "Shares" and, where appropriate, such terms
shall also mean the other securities purchasable upon exercise of the
Warrants as provided in Article V) at the exercise price (the "Warrant
Exercise Price") at the time in effect hereunder.
The Warrant Exercise Price shall initially be [insert exercise
price].(1) The Warrant Exercise Price, the number of Shares and the kind
of securities purchasable upon exercise of a Warrant shall be subject to
adjustment as provided in Article V. Warrants may be exercised by (i)
surrendering at any office or agency maintained for that purpose by the
Company pursuant to Section 1.07 (each a "Warrant Exercise Office") the
Warrant Certificate evidencing such Warrants with the form of Election to
Exercise, set forth on the reverse side of the Warrant Certificate duly
completed and signed by the registered holder or holders thereof or by the
duly appointed legal representative thereof or by a duly authorized
attorney, such signature to be guaranteed by a commercial bank or trust
company, by a broker or dealer which is a member of the NASD or by a member
of a national securities exchange if such guarantee is required by the
terms of the Warrant Certificate and (ii) paying in full the Warrant
Exercise Price for each such Warrant exercised and any other amounts
required to be paid pursuant to Section 4.02, in cash or by certified or
official bank check. Upon such surrender of a Warrant Certificate and
payment and collection of the Warrant Exercise Price and any other required
amounts as provided above at any Warrant Exercise Office (other than any
Warrant Exercise Office that also is an office of the Warrant Agent or of
the Company), such Warrant Certificate and required amounts shall be
promptly delivered to the Warrant Agent.
[FN]
(1) This Agreement provides that the Warrant Exercise Price may be paid in
cash only, which may be lawful currency of the United States of
America or such foreign currency as the Company may designate. If the
Warrant Exercise Price can be paid by delivery of Initial Securities,
this Agreement must be modified accordingly.
(b) Upon receipt of a Warrant Certificate and payment of the
Warrant Exercise Price and any other required amounts, as provided above,
the Warrant Agent shall: (i) cause an amount equal to the Warrant Exercise
Price and any other required amounts to be paid to the Company by crediting
the same to the account of the Company at in
(or to such other account in the name of such other
<PAGE>
office or bank as the Company may direct by written notice to the Warrant
Agent signed by its chairman of the Board of Directors, the vice chairman
of the Board of Directors, its president, its treasurer, its controller,
any vice president, its secretary, or any other officer or official of the
Company reasonably believed by the Warrant Agent to be authorized to give
such notice); (ii) advise the Company immediately by telephone of the
amount so deposited to the Company's account and promptly confirm such
telephonic advice in writing; and (iii) as soon as practicable, advise the
Company of the number of Warrants exercised in accordance with the terms
and conditions of this Agreement and the Warrant Certificates, the
instructions of each exercising holder of the Warrant Certificates with
respect to delivery of the Shares to which such holder is entitled upon
such exercise, and such other information as the Company shall reasonably
request.
(c) Subject to Section 5.02 governing fractional Shares, as soon
as practicable after the exercise of any Warrant or Warrants, the Company
shall issue or cause to be issued to or upon the written order of the
registered holder of the Warrant Certificate evidencing such exercised
Warrant or Warrants, a certificate or certificates evidencing the Share or
Shares to which such holder is entitled, in fully registered form,
registered in such name or names as may be directed by such holder pursuant
to the Election to Exercise, as set forth on the reverse of the Warrant
Certificate. Such certificate or certificates evidencing the Share or
Shares shall be deemed to have been issued and any persons who are
designated to be named therein shall be deemed to have become the holder of
record of such Share or Shares as of the close of business on the date of
the surrender at any Warrant Exercise Office of such Warrant Certificate
with the Election to Exercise thereon duly executed and payment of the
Warrant Exercise Price and any other required amounts as aforesaid (the
"Exercise Date").
(d) The Warrants evidenced by a Warrant Certificate shall be
exercisable, at the election of the registered holder thereof, either as an
entirety or from time to time in part only. In the event that less than
all of the Warrants evidenced by a Warrant Certificate surrendered upon the
exercise of Warrants are exercised at any time prior to the Expiration
Date, a new Warrant Certificate or Certificates shall be issued for the
remaining number of Warrants evidenced by the Warrant Certificate so
surrendered, and the Warrant Agent is hereby authorized to countersign the
required new Warrant Certificate or Certificates pursuant to the provisions
of this Section 2.01 and of Section 1.05.
SECTION 2.02. Duration of Warrants. The Warrants shall expire
on the close of business on the Expiration Date. Each Warrant not
exercised on or prior to the Expiration Date shall become void, and all
rights of the holder under the Warrant Certificate evidencing such Warrant
and under this Agreement shall cease.
ARTICLE III
OTHER PROVISIONS RELATING TO
RIGHTS OF HOLDERS OF WARRANTS
SECTION 3.01. Enforcement of Rights. (a) Notwithstanding any
of the provisions of this Agreement, any holder of any Warrant Certificate,
without the consent of the Warrant Agent, the holder of any Share or the
holder of any other Warrant Certificate, may, in and for his own behalf,
enforce, and may institute and maintain any suit, action or proceeding
against the Company suitable to enforce his right [to receive the
redemption price, if any, of or] to exercise the Warrant or Warrants
<PAGE>
evidenced by his Warrant Certificate in the manner provided in such Warrant
Certificate and in this Agreement.
(b) The Warrants or Warrant Certificates shall not entitle the
holders thereof to any of the rights of a holder of Shares, including,
without limitation, the right to vote or to receive any dividends or other
payments or to consent or to receive notice as shareholders in respect of
the meetings of shareholders or for the election of directors of the
Company or any other matter, or any rights whatsoever as shareholders of
the Company.
ARTICLE IV
CANCELLATION OF WARRANT CERTIFICATES,
PAYMENT OF TAXES[, CALL AND REDEMPTION OF
WARRANTS BY THE COMPANY](2)
[FN]
(2) Section 4.03 may not be applicable to the particular Warrants being
issued and, if so, such Section and this reference should be deleted.
Even if applicable Section 4.03 may need to be modified so as to
reflect the terms of the particular warrants being issued.
SECTION 4.01. Cancellation of Warrants. In the event the
Company shall purchase or otherwise acquire Warrants, such Warrants may
thereupon be delivered to the Warrant Agent and if so delivered shall be
cancelled by it and retired. The Warrant Agent shall cancel all Warrants
properly surrendered for exchange, substitution, transfer, [redemption] or
exercise. The Warrant Agent shall destroy cancelled Warrant Certificates
held by it (unless otherwise instructed by the Company) and deliver a
certificate of destruction to the Company.
SECTION 4.02. Payment of Taxes. The Company will pay all
documentary stamp taxes attributable to the initial issuance of Warrants;
provided, however, that the Company shall not be required to pay any tax or
other governmental charge which may be payable in respect of any transfer
of any Warrant Certificates.
The Company will pay any tax that may be payable in respect of
the issuance or delivery of Shares on exercise of Warrants. The Company
shall not be required to pay any tax or other governmental charge which may
be payable in respect of any transfer involved in the issuance and delivery
of Shares in a name other than that in which the Warrants so exercised were
registered, and no such issuance or delivery shall be made unless and until
the person requesting such issue has paid to the Company the amount of any
such tax or other governmental charge, or has established to the
satisfaction of the Company that such tax or other governmental charge has
been paid.
SECTION 4.03. Call of Warrants. [(a)] The Company shall have
the right to call and repurchase [any or all] Warrants at the price of
per Warrant (the "Call Price") [at any time] [on or after ]
[if the Closing Price (as defined in Section 5.01(g)) of the Company's
Common Stock on each Trading Day (as defined in Section 5.01(g)) during the
period of [ten] consecutive Trading Days preceding the date on which the
Company gives notice to the Warrant Agent of its election to call the
Warrants shall have equalled or exceeded $ per share (the "Minimum
Closing Price")]. [If the Warrant Exercise Price is adjusted pursuant to
Section 5.01, the Minimum Closing Price shall be adjusted by multiplying
the Minimum Closing Price in effect prior to such adjustment by a fraction,
of which the numerator shall be the Warrant Exercise Price as adjusted and
the denominator shall be the Warrant Exercise Price in effect immediately
prior to such adjustment. The Warrant Agent shall not be responsible for
<PAGE>
the calculation of any adjustment to be made pursuant to this Section 4.03
and may rely conclusively on any such adjustment contained in any
instruction of the Company.] [Selection of Warrants to be repurchased, in
the event of a repurchase of less than all of the Warrants, will be made by
the Warrant Agent in such manner as it deems, in its discretion, to be fair
and appropriate.] [In the event of a repurchase of less than all of the
Warrants, the Warrants evidenced by a Warrant Certificate surrendered upon
such repurchase of Warrants at any time prior to the Expiration Date for
the Warrants, a new Warrant Certificate or Certificates shall be issued for
the remaining number of Warrants evidenced by the Warrant Certificate so
surrendered, and the Warrant Agent is hereby authorized to countersign the
required new Warrant Certificate or Certificates pursuant to the provisions
of Section 1.05.]
Notice of a call for repurchase specifying the call date, shall
be mailed to the registered holders of the Warrants to be repurchased not
more than [60] days nor less than [30] days before the call date. Any
Warrant so called for repurchase may be exercised until [5:00] p.m., New
York City time, on the [fifth business day preceding] the call date so
specified in such notice of repurchase.
The Company shall not be required (i) to issue, transfer,
exchange or permit to be exercised any Warrants for a period of [fifteen]
days next preceding any selection of Warrants to be repurchased or
thereafter until after the mailing of the notice of repurchase, or (ii) to
transfer or exchange any Warrants called or being called for repurchase.
[(b)] [Insert any other circumstances in which Warrants may be
redeemed.]
ARTICLE V
ADJUSTMENTS
SECTION 5.01. Adjustment of Warrant Exercise Price and Number of
Shares; Notices. The Warrant Exercise Price and the number of Shares
purchasable upon the exercise of each Warrant are subject to adjustment
from time to time as provided in this Section 5.01.
(a) In case the Company shall pay or make a dividend or other
distribution on its Common Stock in shares of Common Stock, the Warrant
Exercise Price in effect at the opening of business on the day following
the date fixed for the determination of stockholders entitled to receive
such dividend or other distribution shall be reduced by multiplying such
Warrant Exercise Price by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination and the denominator shall be the sum
of such number of shares and the total number of shares constituting such
dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the date
fixed for such determination. For the purposes of this paragraph, the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company.
(b) In case the Company shall issue rights, options or warrants
(whether or not immediately exercisable) to all holders of its Common Stock
entitling them (for a period expiring within 45 days after the date fixed
for determination of stockholders entitled to receive such rights, options
or warrants) to subscribe for or purchase shares of Common Stock at a price
per share which is less than the current market price per share (determined
as provided in paragraph (g) below) of the Common Stock on the date fixed
for the determination of stockholders entitled to receive such rights or
<PAGE>
warrants (other than pursuant to an automatic dividend reinvestment plan of
the Company or any substantially similar plan), the Warrant Exercise Price
in effect at the opening of business on the day following the date fixed
for such determination shall be reduced by multiplying such Warrant
Exercise Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such
current market price and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for
such determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective immediately
after the opening of business on the day following the date fixed for such
determination. In the event that such rights or warrants are not so
issued, the Warrant Exercise Price shall again be adjusted to be the
Warrant Exercise Price which would then be in effect if such date fixed for
the determination of stockholders entitled to receive such rights or
warrants had not been fixed. For the purposes of this paragraph, the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company. In case part or all of such
subscription or purchase price shall be in a form other than cash, the
value of such consideration shall be as determined in good faith by the
Board of Directors of the Company or any authorized committee thereof.
(c) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Warrant
Exercise Price in effect at the opening of business on the day following
the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, in case outstanding shares of
Common Stock shall each be combined into a smaller number of shares of
Common Stock, the Warrant Exercise Price in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase,
as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or
combination becomes effective.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its indebtedness
or assets (including securities but excluding (1) any rights or warrants
referred to in paragraph (b) of this Section, (2) rights (collectively, the
"Rights") issued under the Rights Agreement dated as of September 23, 1987,
as amended, or the Rights Agreement dated as of August 30, 1990, as
amended, in each case between the Company and Chemical Bank, as Rights
Agent, (3) any dividend or distribution in connection with the liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary,
and (4) any dividend or distribution referred to in paragraph (a) of this
Section), the Warrant Exercise Price shall be adjusted so that the same
shall equal the price determined by multiplying the Warrant Exercise Price
in effect immediately prior to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution by
a fraction of which the numerator shall be the current market price per
share (determined as provided in paragraph (g) of this Section) of the
Common Stock on the date fixed for such determination less the then fair
market value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive) of the portion of the assets or
evidences of indebtedness so distributed applicable to one share of Common
Stock and the denominator shall be such current market price per share of
the Common Stock, such adjustment to become effective immediately prior to
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution. In
the event that such dividend or distribution is not so paid or made, the
<PAGE>
Warrant Exercise Price shall again be adjusted to be the Warrant Exercise
Price which would then be in effect if such dividend or distribution had
not occurred. If the Board of Directors (or, to the extent permitted by
applicable law, a duly authorized committee thereof) determines the fair
market value of any distribution for purposes of this paragraph by
reference to the actual or when issued trading market for any securities
comprising such distribution, it must in doing so consider the prices in
such market over the same period used in computing the current market price
per share (determined as provided in paragraph (g) of this Section).
(e) The reclassification of Common Stock into securities
including other than Common Stock (other than any reclassification upon a
consolidation or merger to which paragraph (m) applies) shall be deemed to
involve (i) a distribution of such securities other than Common Stock to
all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such distribution" and
"the date fixed for such determination" within the meaning of paragraph (d)
of this Section 5.01), and (ii) a subdivision or combination, as the case
may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes
effective", as the case may be, and "the day upon which such subdivision or
combination becomes effective" within the meaning of paragraph (c) of this
Section 5.01).
(f) Upon each adjustment of the Warrant Exercise Price pursuant
to this Section 5.01, each Warrant outstanding immediately prior to such
adjustment shall thereafter constitute the right to purchase, at the
adjusted Warrant Exercise Price per share, an adjusted number of Shares
determined (to the nearest one-hundredth of a the Share) by multiplying the
number of Shares purchasable upon exercise of a Warrant immediately prior
to such adjustment by a fraction, the numerator of which shall be the
Warrant Exercise Price in effect immediately prior to such adjustment and
the denominator of which shall be the Warrant Exercise Price in effect
immediately after such adjustment.
(g) For the purpose of any computation under paragraph (b) or
(d) of this Section, the current market price per share of Common Stock on
any date shall be deemed to be the average of the Closing Prices for 15
consecutive Trading Days selected by the Company commencing not less than
20 nor more than 30 Trading Days before the day in question. As used
herein, the term "Closing Price" shall mean the reported last sale price
regular way or, in case no such sale takes place on such day, the average
of the reported closing bid and asked prices regular way, in either case as
reported on the New York Stock Exchange Composite Tape or, if such price or
prices, as applicable, are not so reported, the reported last sales price
regular way or, in case no such sale takes place on such day, the average
of the reported closing bid and asked prices regular way, in either case on
the principal national securities exchange on which the Common Stock is
listed or admitted to trading or, if not listed or admitted to trading on
any national securities exchange, on the National Association of Securities
Dealers Automated Quotations National Market System or, if the Common Stock
is not listed or admitted to trading on any national securities exchange or
quoted on such National Market System, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the Company for
that purpose. The term "Trading Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday, other than any day on which securities are
not traded on such exchange or in such market.
<PAGE>
(h) No adjustment under this Section 5.01 in the Warrant
Exercise Price (and, therefore, no adjustment in the number of Shares
purchasable upon the exercise of Warrants) shall be required unless such
adjustment would require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by reason of this
paragraph are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this
Section 5.01 shall be made to the nearest cent or to the nearest one-
hundredth of a Share, as the case may be.
(i) Whenever the Warrant Exercise Price and the number of Shares
purchasable upon the exercise of a Warrant are adjusted as herein provided,
the Company shall as soon as practicable, but in no event later than [30]
calendar days thereafter:
(i) compute the adjusted Warrant Exercise Price in accordance
with this Section 5.01 and shall prepare a certificate signed by the
principal accounting officer of the Company or any other officer or
official of the Company reasonably acceptable to the Warrant Agent
setting forth the adjusted Warrant Exercise Price and the adjusted
number of Shares purchasable upon the exercise of Warrants and showing
in reasonable detail the facts upon which such adjustments are based,
and such certificate shall forthwith be filed with the Warrant Agent
or Agents; and
(ii) cause to be given to each of the registered holders of the
Warrant Certificates at such holder's address appearing in the Warrant
Register, written notice of such adjusted Warrant Exercise Price and
number of Shares. Such notice shall set forth the adjusted Warrant
Exercise Price and the adjusted number of such Shares. Where
appropriate, any such notice may be given in advance and included as
part of any other notice required to be mailed under the other
provisions of this Section 5.01.
The failure to give the notice required in this paragraph or any
defect therein shall not affect the legality or validity of the event
causing the adjustment of the Warrant Exercise Price and the number of
Shares purchasable upon the exercise of the Warrant or the vote thereon or
any other action taken in connection therewith.
(j) In case:
(i) the Company shall declare a dividend (or any other
distribution) (other than a cash dividend or any distribution paid out
of funds legally available therefor and the dividends payable in stock
for which adjustment is made pursuant to this Section 5.01) on its
Common Stock;
(ii) the Company shall authorize the granting to the holders of
its Common Stock of rights or warrants to subscribe for or purchase
any shares of Common Stock (or securities convertible into shares of
Common Stock);
(iii) there shall occur any consolidation or merger to which the
Company is a party and for which approval of any stockholders of the
Company is required, or any sale or transfer of all or substantially
all of the assets of the Company; or
(iv) the Company shall be (voluntarily or involuntarily)
dissolved, liquidated or wound up;
then the Company, if notice of such event is being mailed to the holders of
the Common Stock, shall cause to be filed with the Warrant Agent and shall
<PAGE>
cause to be mailed to the holders of record of the Warrants, at least 15
days prior to the date fixed as a record date or the date of closing the
transfer books for the determination of stockholders entitled to such
dividend, distribution, rights, or warrants, or for the determination of
stockholders entitled to vote on such proposed consolidation, merger, sale,
transfer, dissolution, liquidation or winding up, a copy of the notice
being mailed to the holders of the Common Stock. The failure to give the
notice required in this paragraph or any defect therein shall not affect
the legality or validity of any dividend, distribution, right, warrant,
consolidation, merger, sale, transfer, dissolution, liquidation or winding
up or the vote thereon or any other action taken in connection therewith.
(k) The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common
Stock or Common Stock held in the treasury of the Company, for the purpose
of effecting the exercise of Warrants, the full number of shares of Common
Stock then deliverable upon the exercise of all Warrants then outstanding.
(l) The term "Common Stock" shall include any stock (whether
voting common stock or nonvoting common stock) of any class of the Company
which has no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which is not subject to redemption by the
Company. The term "common stock," when used in respect of any person other
than the Company, shall mean a class of stock (which may be voting or
nonvoting) of such person which has no preference in respect of dividends
or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of such person and which is not
subject to redemption by such person.
(m) In case of any consolidation of the Company with any other
person, or any merger of the Company into any other person or any merger of
another person into the Company or any sale or transfer of all or
substantially all of the assets of the Company, in which all of the Common
Stock is reclassified, converted or changed solely into, or exchanged
solely for, common stock of another person, each Warrant then outstanding
shall thereafter, at the then Warrant Exercise Price and upon the other
terms and conditions specified in this Agreement, be exercisable for the
number of shares of such common stock into which the number of Shares for
which such Warrant could be exercised, had they been outstanding, would
have been reclassified, converted or changed into or exchanged for. Prior
to or simultaneously with effecting any such consolidation, merger, sale or
transfer, the person formed by such consolidation or the successor
resulting from such merger or which acquires such assets, as the case may
be, shall execute and deliver to the Warrant Agent a supplemental warrant
agreement containing provisions to the effect set forth in the previous
sentence and providing for adjustments which, for events subsequent to the
effective date of such supplemental warrant agreement, shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Section 5.01 and containing an agreement to be bound by the provisions of
this Agreement.
(n) The above adjustments shall be made, to the extent
applicable, successively whenever any event described above shall occur.
(o) Except as provided in this Section 5.01, no adjustment in
respect of any dividends on the Shares shall be made during the term of a
Warrant or upon the exercise of a Warrant.
(p) Irrespective of any adjustments in the Warrant Exercise
Price or the number or kind of shares purchasable upon the exercise of the
Warrants, Warrant Certificates theretofore or thereafter issued may
continue to express the same Warrant Exercise Price per share and number
<PAGE>
and kind of shares as are stated on the Warrant Certificates initially
issuable pursuant to this Agreement.
SECTION 5.02. Fractional Shares. The Company will not be
required to issue fractional Shares upon exercise of the Warrants or
distribute Share certificates that evidence fractional Shares. In lieu of
fractional Shares, there shall be paid to the registered holders of Warrant
Certificates at the time such Warrant Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the Closing Price
per share on the business day preceding the Exercise Date. If any holder
surrenders for exercise more than one Warrant Certificate, the number of
shares deliverable to such holder may, at the option of the Company, be
computed on the basis of the aggregate amount of all the Warrants exercised
by such holder.
SECTION 5.03. Registration of the Shares Under the Securities
Act and Other Laws. A registration statement providing for the
registration of the Shares under the Securities Act (as hereinafter
defined) has become effective. The Company shall furnish to the Warrant
Agent sufficient copies of a prospectus (the "Prospectus") which on the
Exercise Date meets the requirements of Section 10 of the Securities Act.
The Warrant Agent agrees that upon the exercise of any Warrant by the
holder thereof, the Warrant Agent will deliver or cause to be delivered to
such holder, prior to or concurrently with the delivery of the Shares
issued upon such exercise, a copy of the Prospectus. The Company will also
cause the Shares to be registered or qualified (or exempted from such
registration or qualification) under the securities or blue sky laws of
such jurisdictions as is necessary to permit any holder to exercise the
Warrants held by it; provided, however, that the Company shall not be
required for any such purpose to (a) qualify generally to do business as a
foreign corporation in any jurisdiction wherein it would not otherwise be
required to qualify, (b) subject itself to taxation in any such
jurisdiction or (c) consent to general service of process in any such
jurisdiction. "Securities Act" shall mean the Securities Act of 1933, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
ARTICLE VI
CONCERNING THE WARRANT AGENT
SECTION 6.01. Warrant Agent. The Company hereby appoints
as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates, upon the terms and subject to the
conditions herein and in the Warrant Certificates set forth, and
hereby accepts such appointment. The Warrant Agent
shall have the powers and authority granted to and conferred upon it in the
Warrant Certificates and hereby. All of the terms and provisions with
respect to such powers and authority contained in the Warrant Certificates
are subject to and governed by the terms and provisions hereof.
SECTION 6.02. Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth upon the terms and
conditions hereof and in the Warrant Certificates, including the following,
to all of which the Company agrees and to all of which the rights hereunder
of the holders from time to time of the Warrant Certificates shall be
subject:
(a) The Warrant Agent shall be entitled to compensation to be
agreed upon with the Company for all services rendered by it and the
Company agrees promptly to pay such compensation and to reimburse the
Warrant Agent for its reasonable out-of-pocket expenses (including
<PAGE>
reasonable fees and expenses of counsel) incurred without negligence,
bad faith or breach of this Agreement on its part in connection with
the services rendered by it hereunder. The Company also agrees to
indemnify the Warrant Agent for, and to hold it harmless against any
loss, liability or expense incurred without negligence, bad faith or
breach of this Agreement on the part of the Warrant Agent, arising out
of or in connection with its acting as such Warrant Agent hereunder.
The obligations of the Company under this Section 6.02 shall survive
the exercise and the expiration of the Warrant Certificates and the
resignation and removal of the Warrant Agent.
(b) In acting under this Warrant Agreement and in connection
with the Warrant Certificates, the Warrant Agent is acting solely as
agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the owners or
holders of the Warrant Certificates.
(c) The Warrant Agent may consult with counsel and any advice or
written opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with such
advice or opinion.
(d) The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken
or thing suffered by it in reliance upon any Warrant Certificate,
notice, direction, consent, certificate, affidavit, opinion of
counsel, instruction, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by
the proper parties.
(e) The Warrant Agent, and its officers, directors and
employees, may become the owners of, or acquire any interest in,
Warrant Certificates, Shares or other obligations of the Company with
the same rights that it or they would have if it were not the Warrant
Agent hereunder, and, to the extent permitted by applicable law, it or
they may engage or be interested in any financial or other transaction
with the Company and may act on, or as depository, trustee or agent
for, any committee or body of holders of Shares or other obligations
of the Company as freely as if it were not the Warrant Agent
hereunder. Nothing in this Warrant Agreement shall be deemed to
prevent the Warrant Agent from acting in any other capacity for the
Company.
(f) The Warrant Agent shall not be under any liability for
interest on, and shall not be required to invest, any monies at any
time received by it pursuant to any of the provisions of this
Agreement or of the Warrant Certificates.
(g) The Warrant Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Warrant Agent)
or in respect of the validity or execution of any Warrant Certificate
(except its countersignature thereof).
(h) The recitals contained herein and in the Warrant
Certificates (except as to the Warrant Agent's countersignature
thereon) shall be taken as the statements of the Company and the
Warrant Agent assumes no responsibility for the correctness of the
same. The Warrant Agent does not make any representation as to the
validity or sufficiency of this Agreement or the Warrant Certificates,
except for its due execution and delivery of this Agreement; provided,
however, that the Warrant Agent shall not be relieved of its duty to
<PAGE>
countersign the Warrant Certificates as authorized by this Agreement.
The Warrant Agent shall not be accountable for the use or application
by the Company of the proceeds of the exercise of any Warrant.
(i) The Warrant Agent shall be obligated to perform such duties
as are herein and in the Warrant Certificates specifically set forth
and no implied duties or obligations shall be read into this Agreement
or the Warrant Certificates against the Warrant Agent. The Warrant
Agent shall be under no obligation to institute any action, suit or
legal proceeding or to take any other action likely to involve expense
unless the Company or one or more registered holders of Warrant
Certificates shall furnish the Warrant Agent with reasonable security
and indemnity for any costs or expenses which may be incurred. The
Warrant Agent shall not be accountable or under any duty or respon-
sibility for the use by the Company of any of the Warrant Certificates
countersigned by the Warrant Agent and delivered by it to the Company
pursuant to this Agreement. The Warrant Agent shall have no duty or
responsibility in case of any default by the Company in the
performance of its covenants or agreements contained in the Warrant
Certificates or in the case of the receipt of any written demand from
a holder of a Warrant Certificate with respect to such default,
including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceedings
at law or otherwise or, except as provided in Section 7.02, to make
any demand upon the Company.
(j) Unless otherwise specifically provided herein, any order,
certificate, notice, request, direction or other communication from
the Company made or given under any provision of this Agreement shall
be sufficient if signed by its chairman of the Board of Directors, its
vice chairman of the Board of Directors, its president, its treasurer,
any assistant treasurer, its controller, any vice president or its
secretary.
(k) The Warrant Agent shall have no responsibility in respect of
any adjustment in the Shares pursuant to Article V hereof other than
its responsibility to cause notice thereof to be given pursuant to
Section 5.01.
(l) The Company agrees that it will perform, execute,
acknowledge and deliver, or caused to be performed, executed,
acknowledged and delivered, all such further and other acts,
instruments and assurances as may reasonably be required by the
Warrant Agent for the carrying out or performing by the Warrant Agent
of the provisions of this Agreement.
(m) The Warrant Agent is hereby authorized and directed to
accept written instructions with respect to the performance of its
duties hereunder from any one of the chairman of the Board of
Directors, its vice chairman of the Board of Directors, the president,
the treasurer, any assistant treasurer, the controller, any vice
president, or the secretary of the Company or any other officer or
official of the Company reasonably believed to be authorized to give
such instructions and to apply to such officers or officials for
advice or instructions in connection with its duties, and it shall not
be liable for any action taken or suffered to be taken by it in good
faith in accordance with instructions of any such officer or official.
(n) Whenever in the performance of its duties under this
Agreement the Warrant Agent shall deem it necessary or desirable that
any fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless
<PAGE>
other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a cer-
tificate signed by any one of the chairman of the Board of Directors,
the vice chairman of the Board of Directors, the president, the
treasurer, any assistant treasurer, the controller, any vice president
or the secretary, of the Company or any other officer or official of
the Company reasonably believed to be authorized to give such
instructions and delivered to the Warrant Agent; and such certificate
shall be full authorization to the Warrant Agent for any action taken
or suffered in good faith by it under the provisions of this Agreement
in reliance upon such certificate.
SECTION 6.03. Resignation and Appointment of Successor. (a)
The Company agrees, for the benefit of the holders from time to time of the
Warrant Certificates, that there shall at all times be a Warrant Agent
hereunder until all the Warrants have been exercised [or redeemed] or are
no longer exercisable.
(b) The Warrant Agent may at any time resign as Warrant Agent by
giving written notice to the Company of such intention on its part,
specifying the date on which it desires for its resignation to be
effective, provided that such date shall be at least 90 days after the date
on which such notice is given unless the Company agrees to accept less
notice. Upon receiving such notice of resignation, the Company shall
promptly appoint a successor Warrant Agent, qualified as provided in
Section 6.03(d), by written instrument in duplicate signed on behalf of the
Company, one copy of which shall be delivered to the resigning Warrant
Agent and one copy to the successor Warrant Agent. As provided in Section
6.03(d), such resignation shall become effective upon the acceptance of the
appointment by the successor Warrant Agent. The Company may, at any time
and for any reason, remove the Warrant Agent and appoint a successor
Warrant Agent by written instrument in duplicate, specifying such removal
and the date on which it is intended to become effective, signed on behalf
of the Company, one copy of which shall be delivered to the Warrant Agent
being removed and one copy to the successor Warrant Agent. As soon as
practicable after appointment of the successor Warrant Agent, the Company
shall cause written notice of the change in the Warrant Agent to be given
to each of the registered holders of the Warrants in the manner provided
for in Section 7.04.
(c) Upon resignation or removal of the Warrant Agent, if the
Company shall fail to appoint a successor Warrant Agent within a period of
30 days after receipt of such notice of resignation or removal, then the
holder of any Warrant Certificate may apply to a court of competent juris-
diction for the appointment of a successor to the Warrant Agent. Pending
appointment of a successor to the Warrant Agent, either by the Company or
by such a court, the duties of the Warrant Agent shall be carried out by
the Company.
(d) Any successor Warrant Agent, whether appointed by the
Company or by a court, shall be a bank or trust company in good standing,
incorporated under the laws of the United States of America or any State
thereof and having, at the time of its appointment, a combined capital
surplus of at least $50 million. Such successor Warrant Agent shall exe-
cute and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder and all the provisions of this
Agreement, and thereupon such successor Warrant Agent, without any further
act, deed or conveyance, shall become vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like effect as if
originally named as Warrant Agent hereunder, and such predecessor, upon
payment of any amounts then due it pursuant to Section 6.02(a), shall
thereupon become obligated to transfer, deliver and pay over, and such
successor Warrant Agent shall be entitled to receive, all moneys,
<PAGE>
securities, records or other property on deposit with or held by such
predecessor as Warrant Agent hereunder.
(e) Any corporation or bank into which the Warrant Agent
hereunder may be merged or converted, or any corporation or bank with which
the Warrant Agent may be consolidated, or any corporation or bank resulting
from any merger, conversion or consolidation to which the Warrant Agent
shall be a party, or any corporation or bank to which the Warrant Agent
shall sell or otherwise transfer all or substantially all of its corporate
trust business, shall be the successor to the Warrant Agent under this
Agreement (provided that such corporation or bank shall be qualified as
aforesaid) without the execution or filing of any document or any further
act on the part of any of the parties hereto.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Amendment. This Agreement and the terms of the
Warrants may be amended by the Company and the Warrant Agent, without the
consent of the holder of any Warrant Certificate, for the purpose of curing
any ambiguity, or of curing, correcting or supplementing any defective or
inconsistent provision contained herein or therein, or to effect any
assumptions of the Company's obligations hereunder and thereunder by a
successor corporation under the circumstances described in Section 5.01(m),
or in any other manner which the Company may deem necessary or desirable
and which shall not adversely affect in any material respect the interests
of the holders of the Warrant Certificates.
The Company and the Warrant Agent may modify this Agreement and
the terms of the Warrants of, with the consent of the holders of not less
than a majority in number of the then outstanding Warrants for the purpose
of adding any provision to or changing in any manner or eliminating any of
the provisions of this Agreement or modifying in any manner the rights of
the holders of the outstanding Warrants; provided, however, that no such
modification that increases the Warrant Exercise Price, changes the
Expiration Date, or otherwise materially and adversely affects the exercise
rights of the holders of the Warrants [or terms on which the Warrants may
be redeemed] or reduces the percentage required for modification, may be
made without the consent of the holder of each outstanding Warrant.
Any such modification or amendment will be conclusive and binding
on all present and future holders of Warrant Certificates whether or not
they have consented to such modification or amendment or waiver and whether
or not notation of such modification or amendment is made upon such Warrant
Certificates. Any instrument given by or on behalf of any holder of a
Warrant Certificate in connection with any consent to any modification or
amendment will be irrevocable and will be conclusive and binding on all
subsequent holders of such Warrant Certificate.
No failure or delay by any party in exercising any right or
remedy hereunder shall operate as a waiver thereof, and a waiver of a
particular right or remedy on one occasion shall not be deemed a waiver of
any other right or remedy or a waiver of the same right or remedy on any
subsequent occasion.
SECTION 7.02. Notices and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed
to the Company by the holder of a Warrant Certificate pursuant to the
provisions of the Warrant Certificates, the Warrant Agent shall promptly
forward such notice or demand to the Company.
<PAGE>
SECTION 7.03. Addresses for Notices to Parties and for
Transmission of Documents. All notices hereunder to the parties hereto
shall be deemed to have been given when sent by certified or registered
mail, postage prepaid, or by facsimile, addressed to any party hereto as
follows:
If to the Company:
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
Attention: [Secretary]
Telephone: (303) 863-7414
Fax: (303) 837-6133
If to the Warrant Agent:
Attention:
Telephone:
Fax:
or at any other address of which either of the foregoing shall have
notified the other in writing.
SECTION 7.04. Notices to Holders. Notices to holders of
Warrants shall be mailed to such holders at the addresses of such holders
as they appear in the Warrant Register. Any such notice shall be
sufficiently given if sent by first-class mail, postage prepaid.
SECTION 7.05. Successors. All the covenants and provisions of
this Agreement by or for the benefit of any holder shall bind and inure to
the benefit of their respective successors and assigns hereunder.
SECTION 7.06. Governing Law. The validity, interpretation and
performance of this Agreement and each Warrant Certificate issued hereunder
and of the respective terms and provisions thereof shall be governed by the
laws of the State of New York.
SECTION 7.07. Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws, which may be or become requisite in connection with
the issuance, sale, transfer, and delivery of the Warrant Certificates, the
exercise of the Warrants or the issuance, sale, transfer and delivery of
the Shares issued upon exercise of the Warrants.
SECTION 7.08. Persons Having Rights under Warrant Agreement.
Nothing in this Agreement expressed or implied and nothing that may be
inferred from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation other than
the Company, the Warrant Agent and the holders of the Warrant Certificates
any right, remedy or claim under or by reason of this Agreement or of any
covenant, condition, stipulation, promise or agreement hereof; and all
covenants, conditions, stipulations, promises and agreements in this
Agreement contained shall be for the sole and exclusive benefit of the
Company and the Warrant Agent and their successors and of the holders of
the Warrant Certificates.
<PAGE>
SECTION 7.09. Headings. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of any of the
provisions hereof.
SECTION 7.10. Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be
an original; but such counterparts shall together constitute but one and
the same instrument.
SECTION 7.11. Inspection of Agreement. A copy of this Agreement
shall be available at all reasonable times at the principal corporate trust
office of the Warrant Agent, for inspection by the holder of any Warrant
Certificate. The Warrant Agent may require such holder to submit his
Warrant Certificate for inspection by it.
IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above written.
NEWMONT MINING CORPORATION
By
Title:
Attest:
[Insert Name of Warrant
Agent]
By
Title:
Attest:
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[FACE]
No. W. Warrants
WARRANT CERTIFICATE
NEWMONT MINING CORPORATION
<PAGE>
This Warrant Certificate certifies that , or
registered assigns, is the registered holder of Warrants (the
"Warrants") to purchase shares of common stock, par value $1.60 per share
(the "Common Stock"), of Newmont Mining Corporation, a Delaware corporation
(the "Company"). Each Warrant entitles the holder to purchase from the
Company any business day on or after the date of issuance and on or prior
to 5:00 p.m., New York City time, on (the "Expiration
Date") [unless previously redeemed] one fully paid and nonassessable share
(such share of Common Stock purchasable upon exercise of a Warrant being
hereinafter referred to as a "Share" and collectively as the "Shares") of
Common Stock at the initial exercise price per Share (the "Warrant Exercise
Price") of [insert exercise price](1) upon surrender of this Warrant
Certificate and payment of the Warrant Exercise Price, in cash or by
certified or official bank check, at the office or agency of the Warrant
Agent in (the "Warrant Agent Office"), but only subject to
the conditions set forth herein and in the Warrant Agreement. The Warrant
Exercise Price and number of Shares purchasable upon exercise of the
Warrants are subject to adjustment upon the occurrence of certain events
set forth in the Warrant Agreement.
[FN]
(1) This Warrant Certificate provides that the Warrant Exercise Price may
be paid in cash only, which may be lawful currency of the United
States of America or such foreign currency as the Company may
designate. If the Warrant Exercise Price can be paid by delivery of
Initial Securities (as defined in the Warrant Agreement), this Warrant
Certificate must be modified accordingly.
No Warrant may be exercised after the Expiration Date. After the
close of business on the Expiration Date, the Warrants will be wholly void
and of no value.
Reference is hereby made to the further provisions of this
Warrant Certificate set forth on the reverse hereof and such further
provisions shall for all purposes have the same effect as though fully set
forth at this place.
This Warrant Certificate shall not be valid unless countersigned
by the Warrant Agent, as such term is defined on the reverse hereof.
WITNESS the facsimile seal of the Company and the facsimile
signatures of its duly authorized officers.
Dated:
By NEWMONT MINING CORPORATION
[SEAL] By
Title: Secretary
Countersigned.
,
as Warrant Agent
By
Authorized Signature
<PAGE>
[FORM OF WARRANT CERTIFICATE]
[REVERSE]
NEWMONT MINING CORPORATION
The Warrants evidenced by this Warrant Certificate are part of a
duly authorized issue of Warrants to purchase share of Common Stock, $1.60
par value, of the Company (the "Common Stock"). The Warrants are issued
pursuant to a Warrant Agreement dated as of (the
"Warrant Agreement"), duly executed and delivered by the Company to
, a banking corporation, as Warrant Agent
(the "Warrant Agent"), which Warrant Agreement is hereby incorporated by
reference in and made a part of this instrument and is hereby referred to
for a description of the rights, limitation of rights, obligations, duties
and immunities thereunder of the Warrant Agent, the Company and the holders
(the words "holders" or "holder" meaning the registered holders or
registered holder) of the Warrants.
Subject to the provisions of the Warrant Agreement, the holder of
each Warrant shall have the right to purchase from the Company (and the
Company shall issue and sell to such holder of the Warrant), on any
business day on or after the date of issuance and on or prior to 5:00 p.m.,
New York City time, on the Expiration Date [unless previously redeemed],
one fully paid and nonassessable share of Common Stock at the Warrant
Exercise Price at the time in effect under the Warrant Agreement. The
Warrant Exercise Price and the number of Shares are subject to adjustment
as provided in the Warrant Agreement. Warrants may be exercised by (i)
surrendering at any office or agency maintained for that purpose by the
Company (each a "Warrant Exercise Office") this Warrant Certificate with
the form of Election to Exercise set forth hereon duly completed and
executed, and (ii) paying in full the Warrant Exercise Price for each such
Warrant exercised and any other amounts required to be paid pursuant to the
Warrant Agreement, in cash or by certified or official bank check. As soon
as practicable after the exercise of any Warrant or Warrants, the Company
shall issue or cause to be issued to or upon the written order of the reg-
istered holder of this Warrant Certificate, a certificate or certificates
evidencing the Share or Shares to which such holder is entitled, in fully
registered form, registered in such name or names as may be directed by
such holder pursuant to the Election to Exercise, as set forth on the
reverse of this Warrant Certificate.
The Company will not be required to issue fractional Shares upon
exercise of the Warrants or distribute Share certificates that evidence
fractional Shares. In lieu of fractional Shares, there shall be paid to
the registered holder of this Warrant Certificate at the time such Warrant
Certificate is exercised an amount in cash equal to the same fraction of
the Closing Price per share on the business day preceding the date this
Warrant Certificate is surrendered for exercise.
[The Company shall have the right to call and repurchase [any or
all] Warrants at the price of per Warrant (the "Call Price") [at any
time] [on or after ] [if the Closing Price (as defined in the
Warrant Agreement) of the Company's Common Stock on each Trading Day (as
defined in the Warrant Agreement) during the period of [ten] consecutive
Trading Days preceding the date on which the Company gives notice to the
Warrant Agent of its election to call the Warrants shall have equalled or
exceeded $ per share (the "Minimum Closing Price"). Selection of
Warrants to be repurchased, in the event of a repurchase of less than all
<PAGE>
of the Warrants, will be made by the Warrant Agent in such manner as it
deems, in its discretion, to be fair and appropriate. In the event of a
repurchase of less than all of the Warrants, the Warrants evidenced by this
Warrant Certificate surrendered upon such repurchase of Warrants at any
time prior to the Expiration Date for the Warrants, a new Warrant
Certificate or Certificates shall be issued for the remaining number of
Warrants evidenced by this Warrant Certificate so surrendered [Insert any
other circumstances in which the Warrants may be redeemed.](2)
[FN]
(2) This paragraph may not be applicable to the particular Warrants being
issued and, if so, this reference should be deleted. Even if
applicable, the paragraph may need to be modified so as to reflect the
terms of the particular Warrants being issued.
[The Company shall not be required (i) to issue, transfer,
exchange or permit to be exercised any Warrants for a period of [fifteen]
days next preceding any selection of Warrants to be repurchased or
thereafter until after the mailing of the notice of repurchase, or (ii) to
transfer or exchange any Warrants called or being called for repurchase.]
The Warrant Agreement provides that, upon the occurrence of
certain events, the number of Shares purchasable upon the exercise of each
Warrant and the Warrant Exercise Price set forth on the face hereof may,
subject to certain conditions, be adjusted.
Warrant Certificates, when surrendered at the Warrant Agent
Office by the registered holder thereof in person or by legal
representative by attorney duly authorized in writing, may be exchanged, in
the manner and subject to the limitations provided in the Warrant
Agreement, but without payment of any service charge, for a new Warrant
Certificate or new Warrant Certificates of like tenor evidencing in the
aggregate a like number of Warrants.
Upon due presentment for registration of transfer of this Warrant
Certificate at the Warrant Agent Office, a new Warrant Certificate of like
tenor and evidencing in the aggregate a like number of Warrants shall be
issued to the transferee in exchange for this Warrant Certificate, subject
to the limitations provided in the Warrant Agreement, without charge except
for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the
registered holder hereof as the absolute owner of this Warrant Certificate
(notwithstanding any notation of ownership or other writing hereon made by
anyone) for the purpose of any exercise hereof and for all other purposes,
and neither the Company nor the Warrant Agent shall be affected by any
notice to the contrary.
[FORM OF ELECTION TO EXERCISE]
(To be executed upon exercise of Warrants on the Exercise Date)
The undersigned hereby irrevocably elects to exercise the right
to exercise the Warrants represented by this Warrant Certificate and
purchase Shares and herewith tenders payment for such Shares in
the amount of (in cash, certified or official bank check) in
accordance with the terms hereof. The undersigned requests that a
certificate representing such Shares be registered in the name of
whose address is and that such
certificate be delivered to whose address is
. Any cash payments to be paid in lieu of a
fractional Share should be made to whose address is
and the check representing payment thereof should be delivered
<PAGE>
to whose address is
.
Dated:
[Social Security Box]
Name of holder of
Warrant Certificate:
(Please Print)
Tax Identification or
Social Security Number
Address:
Signature:
Note: The above signature must correspond with the
name as written upon the face of this Warrant
Certificate in every particular, without
alteration or enlargement or any change
whatever and if the certificate representing
the Shares or any Warrant Certificate
representing Warrants not exercised is to be
registered in a name other than that in which
this Warrant Certificate is registered, or if
any cash payment to be paid in lieu of a
fractional share is to be made to a person
other than the registered holder of this
Warrant Certificate, the signature of the
holder hereof must be guaranteed.
Signature Guaranteed:
[FORM OF ASSIGNMENT]
For value received hereby sells, assigns and
transfers unto the within Warrant Certificate, together
with all right, title and interest therein, and does hereby irrevocably
constitute and appoint attorney, to transfer said Warrant
Certificate on the books of the within-named Company, with full power of
substitution in the premises.
Dated:
Signature:
Note: The above signature must correspond with the name as
written upon the face of this Warrant Certificate in
every particular, without alteration or enlargement or
any change whatever.
Signature Guaranteed:
<PAGE>
MSB:KHP June 22, 1994
Newmont Mining Corporation
1700 Lincoln Street
Denver, Colorado 80203
Dear Sirs:
We have examined the Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), in the form in which it is to be filed today by Newmont
Mining Corporation, a Delaware corporation ("Newmont"), with the Securities
and Exchange Commission (the "Commission") relating to (i) shares of common
stock, par value $1.60 per share, of Newmont (the "Common Shares"), which
include equal value rights (the "Equal Value Rights") and preferred stock
purchase rights (the "Preferred Stock Rights" and, together with the Equal
Value Rights, the "Rights") which, prior to the occurrence of certain events,
will not be exercisable or evidenced separately from the Common Shares, (ii)
shares of preferred stock, par value $5.00 per share, of Newmont (the
"Preferred Shares"), which may be convertible into Common Shares, (iii)
depositary shares (the "Depositary Shares") evidenced by depositary receipts
(the "Depositary Receipts") which will represent fractional interests in
Preferred Shares, (iv) convertible debt securities of Newmont ("Convertible
Debt Securities), consisting of debentures, notes or other evidences of
indebtedness representing unsecured obligations of Newmont, which may be
either senior debt securities ("Convertible Senior Debt Securities") or
subordinated debt securities ("Convertible Subordinated Debt Securities") and
which are convertible into Common Shares and (v) warrants to purchase Common
Shares (the "Warrants"). The Common Shares, the Preferred Shares, the
Depositary Shares, the Convertible Debt Securities and the Warrants are
collectively referred to herein as the "Securities". The Securities are being
registered for offering and sale from time to time pursuant to Rule 415 under
the Securities Act. The aggregate public offering price of the Securities
will not exceed $300,000,000.
The Convertible Senior Debt Securities will be issued from time to
time pursuant to the terms of an Indenture (the "Senior Debt Indenture")
between Newmont and The Bank of New York, as Trustee, filed as Exhibit 4.12 to
the Registration Statement. The Convertible Subordinated Debt Securities will
be issued from time to time pursuant to the terms of an Indenture (the
"Subordinated Debt Indenture") between Newmont and The Bank of New York, as
Trustee, filed as Exhibit 4.13 to the Registration Statement. The Senior Debt
Indenture and the Subordinated Debt Indenture are sometimes referred to herein
individually as the "Indenture". The Warrants are to be issued pursuant to
the terms of a Warrant Agreement (the "Warrant Agreement"), in the form filed
as Exhibit 4.15 to the Registration Statement, between Newmont and a bank or
trust company to be named by Newmont (the "Warrant Agent"). The Depositary
Receipts evidencing Depositary Shares are to be issued under a Deposit
Agreement (the "Deposit Agreement"), in the form filed as Exhibit 4.14 to the
Registration Statement, between Newmont and a bank or trust company to be
named by Newmont (the "Depositary"). The Equal Value Rights will be issued
pursuant to the Rights Agreement, dated as of September 23, 1987, as amended
(the "Equal Value Rights Agreement"), between Newmont and Chemical Bank, as
Rights Agent. The Preferred Stock Rights will be issued pursuant to a Rights
Agreement, dated as of August 30, 1990, as amended (the "Preferred Stock
Rights Agreement"), between Newmont and Chemical Bank, as Rights Agent.
Based upon our examination of such documents, certificates, records,
authorizations and proceedings as we have deemed relevant, it is our opinion
that:
1. With respect to the Common Shares, when (a) the issuance of the
Common Shares has been duly authorized by appropriate corporate action, (b)
the certificates for the Common Shares have been duly executed by Newmont,
<PAGE>
countersigned by the transfer agent therefor and duly delivered to the
purchasers thereof against payment therefor, (x) the Common Shares will be
validly issued, fully paid and nonassessable and (y) the Rights, if any,
included with the Common Shares will be duly authorized and validly issued.
2. With respect to the Preferred Shares, when (a) the issuance of
the Preferred Shares has been duly authorized by appropriate corporate action,
(b) the Certificate of Designations establishing the terms of the Preferred
Shares has been duly approved by appropriate corporate action, duly executed
by Newmont and filed with the Secretary of State of the State of Delaware, (c)
the certificates for the Preferred Shares have been duly executed by Newmont,
countersigned by the transfer agent therefor and delivered to the purchasers
thereof against payment therefor, and (d) if the Preferred Shares are
convertible into Common Shares, (i) the issuance of such Common Shares has
been duly authorized by appropriate corporate action, (ii) the Preferred
Shares are presented for conversion in accordance with the terms thereof and
(iii) the certificates for such Common Shares have been duly executed by
Newmont, countersigned by the transfer agent therefor and duly delivered upon
such conversion to the persons entitled thereto in accordance with the terms
of such Preferred Shares, (x) the Preferred Shares will be validly issued,
fully paid and nonassessable and (y) if the Preferred Shares are convertible
into Common Shares, the Common Shares issuable upon conversion of the
Preferred Shares will be validly issued, fully paid and nonassessable and the
Rights, if any, included with the Common Shares will be duly authorized and
validly issued.
3. With respect to the Depositary Shares, when (a) the Deposit
Agreement pursuant to which the Depositary Receipts are to be issued has been
duly authorized, executed and delivered by Newmont and the Depositary, (b) the
issuance of the Preferred Shares underlying the Depositary Shares has been
duly authorized by appropriate corporate action, (c) the Certificate of
Designations establishing the terms of the Preferred Shares has been duly
approved by appropriate corporate action, duly executed by Newmont and filed
with the Secretary of State of the State of Delaware, (d) the certificates for
the Preferred Shares have been duly executed by Newmont, countersigned by the
transfer agent therefor and deposited pursuant to the Deposit Agreement in
exchange for the Depositary Receipts, (e) the Depositary Receipts have been
duly executed by the Depositary in accordance with the provisions of the
Deposit Agreement and duly delivered to the purchasers thereof against payment
therefor, and (f) if the Preferred Shares are convertible into Common Shares,
(i) the issuance of such Common Shares has been duly authorized by appropriate
corporate action, (ii) the Preferred Shares are presented for conversion in
accordance with the terms thereof and (iii) the certificates for such Common
Shares have been duly executed by Newmont, countersigned by the transfer agent
therefor and duly delivered upon such conversion to the persons entitled
thereto in accordance with the terms of such Preferred Shares, (x) the
Depositary Shares will be validly issued and will entitle the holders thereof
to the rights specified in the Depositary Receipts and in the Depositary
Agreement; (y) the Preferred Shares represented by such Depositary Shares will
be validly issued, fully paid and nonassessable; and (z) if the Preferred
Shares represented by such Depositary Shares are convertible into Common
Shares, the Common Shares issuable upon conversion of such Preferred Shares
will be validly issued, fully paid and nonassessable and the Rights, if any,
included with the Common Shares will be duly authorized and validly issued.
4. With respect to the Convertible Debt Securities, when (a) the
Indenture pursuant to which the Convertible Debt Securities are to be issued
has been duly authorized, executed and delivered by Newmont and the trustee
thereunder (the "Trustee"), (b) the issuance of the Convertible Debt
Securities, and the issuance of the Common Shares issuable upon conversion
thereof, have been duly authorized by appropriate corporate action, (c) the
certificates for the Convertible Debt Securities have been duly executed by
Newmont and authenticated by the Trustee in accordance with the provisions of
the Indenture and duly delivered to the purchasers thereof against payment
therefor, (d) the Convertible Debt Securities are presented for conversion in
accordance with the terms thereof and of the Indenture and (e) the
<PAGE>
certificates for such Common Shares have been duly executed by Newmont,
countersigned by the transfer agent therefor and duly delivered upon such
conversion to the persons entitled thereto in accordance with the terms of the
Convertible Debt Securities and the Indenture, (x) the Convertible Debt
Securities will be valid and legally binding obligations of Newmont,
enforceable in accordance with their terms, except as the enforceability
thereof may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law) and (y) the
Common Shares issuable upon conversion of the Convertible Debt Securities will
be validly issued, fully paid and nonassessable and the Rights, if any,
included with the Common Shares will be duly authorized and validly issued.
5. With respect to the Warrants, when (a) the Warrant Agreement
pursuant to which the Warrants are to be issued has been duly authorized,
executed and delivered by Newmont and the Warrant Agent, (b) the issuance of
the Warrants, and the issuance of the Common Shares issuable upon exercise of
the Warrants, have been duly authorized by appropriate corporate action, (c)
the certificates representing the Warrants have been duly executed by Newmont
and countersigned by the Warrant Agent in accordance with the provisions of
the Warrant Agreement and duly delivered to the purchasers thereof against
payment therefor, (d) the Warrants are duly exercised, and the exercise price
therefor paid, in accordance with the terms of the Warrants and the Warrant
Agreement, and (e) the certificates for the Common Shares issuable upon
exercise of the Warrants have been duly executed by Newmont, countersigned by
the transfer agent therefor and duly delivered to the persons entitled thereto
upon such exercise, (x) the Warrants will be valid and legally binding
obligations of Newmont, enforceable in accordance with their terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (regardless of whether
the issue of enforceability is considered in a proceeding in equity or at law)
and (y) the Common Shares issued upon exercise of the Warrants will be validly
issued, fully paid and nonassessable and the Rights, if any, included with the
Common Shares will be duly authorized and validly issued.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm appearing under the
caption "Validity of Securities" in the Prospectus forming part of the Regis-
tration Statement. In giving this consent, we do not hereby admit that we are
within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission promulgated
thereunder.
Very truly yours,
EXHIBIT 12.1
Newmont Mining Corporation and Subsidiaries
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Amounts in thousands except ratios)
(Unaudited)
<TABLE>
<CAPTION>
<PAGE>
Three Months Ended Year Ended December 31,
March 31, 1994 1993 1992 1991 1990 1989
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Income before income
taxes and cumulative
effect of changes
in accounting
principles $22,554 $113,234 $ 93,399 $122,218 $240,460 $102,359
Adjustments:
Net interest
expense (1) 165 12,393 14,555 13,021 42,373 91,784
Amortization of
capitalized interest 484 1,814 1,410 1,668 1,236 2,365
Portion of rental
expense
representative
of interest 178 800 1,088 1,572 2,017 2,308
Minority interest of
majority-owned
subsidiaries that
have fixed charges 2,130 11,113 7,580 12,455 14,021 13,706
Undistributed income
of less than 50%
owned entities (1,460) (3,526) - - (7,460) -
$24,051 $135,828 $118,032 $150,934 $292,647 $212,522
Fixed Charges:
Net interest
expense (1) $ 165 $12,393 $14,555 $13,021 $42,373 $91,784
Capitalized interest 4,750 8,480 2,405 - - 2,269
Portion of rental
expense
representative
of interest 178 800 1,088 1,572 2,017 2,308
$ 5,093 $21,673 $18,048 $14,593 $44,390 $96,361
Ratio of Earnings to
Fixed Charges 4.7 6.3 6.5 10.3 6.6 2.2
(1) Includes interest expense of majority-owned subsidiaries and amortization of debt issuance costs.
</TABLE>
EXHIBIT 12.2
Newmont Mining Corporation and Subsidiaries
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(Amounts in thousands except ratios)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Year Ended December 31,
March 31, 1994 1993 1992 1991 1990 1989
<S> <C> <C> <C> <C> <C> <C>
<PAGE>
Earnings:
Income before income
taxes and cumulative
effect of changes
in accounting
principles $22,554 $113,234 $ 93,399 $122,218 $240,460 $102,359
Adjustments:
Net interest
expense (1) 165 12,393 14,555 13,021 42,373 91,784
Amortization of
capitalized interest 484 1,814 1,410 1,668 1,236 2,365
Portion of rental
expense
representative
of interest 178 800 1,088 1,572 2,017 2,308
Minority interest of
majority-owned
subsidiaries that
have fixed charges 2,130 11,113 7,580 12,455 14,021 13,706
Undistributed income
of less than 50%
owned entities (1,460) (3,526) - - (7,460) -
$24,051 $135,828 $118,032 $150,934 $292,647 $212,522
Fixed Charges:
Net interest
expense (1) $ 165 $12,393 $14,555 $13,021 $42,373 $91,784
Preferred stock
dividends (2) 4,114 18,702 1,796 - - -
Capitalized interest 4,750 8,480 2,405 - - 2,269
Portion of rental
expense
representative
of interest 178 800 1,088 1,572 2,017 2,308
$ 9,207 $40,375 $19,844 $14,593 $44,390 $96,361
Ratio of Earnings to
Fixed Charges 2.6 3.4 5.9 10.3 6.6 2.2
(1) Includes interest expense of majority-owned subsidiaries and amortization of debt issuance costs.
(2) Increased to represent pre-tax earnings which would be required to cover such dividend requirements.
</TABLE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Form S-3 Registration
Statement of our reports dated January 25, 1994 included in
Newmont Mining Corporation's Form 10-K for the year ended
<PAGE>
December 31, 1993 and to all references to our Firm
included in this Registration Statement.
ARTHUR ANDERSEN & CO.
Denver, Colorado,
June 22, 1994.
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Timothy J. Schmitt and Graham M. Clark,
Jr., and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and revocation, in his name and on his behalf, to
do any and all acts and things and to execute any and all instruments which
they and each of them may deem necessary or advisable to enable Newmont Mining
Corporation (the "Company") to comply with the Securities Act of 1933, as
amended (the "Act"), and any rules, regulations or requirements of the
Securities and Exchange Commission in respect thereof, in connection with the
registration under the Act of shares of common stock, shares of preferred
stock, convertible debt securities and/or warrants to purchase shares of
common stock, shares of preferred stock and/or convertible debt securities, in
each case of the Company (collectively, "Equity Securities"), having an
aggregate maximum offering price of $300 million, which Equity Securities are
to be offered from time to time pursuant to Rule 415 of the Act (or any
successor rule thereto), including power and authority to sign his name in any
and all capacities (including his capacity as a Director and/or Officer of the
Company) to a Registration Statement on Form S-3 or such other form as may be
appropriate, and to any and all amendments, including post-effective
amendments, to such Registration Statement, and to any and all instruments or
documents filed as part of or in connection with such Registration Statement
or any amendments thereto; and the undersigned hereby ratifies and confirms
all that said attorneys-in-fact and agents, or any of them, shall lawfully do
or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have subscribed these presents
as of the 16th day of March, 1994.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ Rudolph I.J. Agnew Director
Rudolph I.J. Agnew
/s/ John P. Bolduc Director
John P. Bolduc
<PAGE>
/s/ Ronald C. Cambre Chief Executive Officer and
Ronald C. Cambre Vice Chairman and Director
(Principal Executive Officer)
/s/ Joseph P. Flannery Director
Joseph P. Flannery
/s/ Thomas A. Holmes Director
Thomas A. Holmes
/s/ Gordon R. Parker Chairman and Director
Gordon R. Parker
/s/ T. Peter Philip President and Chief Operating
T. Peter Philip Officer and Director
/s/ Robin A. Plumbridge Director
Robin A. Plumbridge
/s/ William I.M. Turner, Jr. Director
William I.M. Turner, Jr.
/s/ Wayne W. Murdy Senior Vice President
Wayne W. Murdy and Chief Financial Officer
(Principal Financial Officer)
/s/ Gary E. Farmar Vice President and Controller
Gary E. Farmar (Principal Accounting Officer)
</TABLE>
Exhibit 25.1
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED
PURSUANT TO RULE 901(d) OF REGULATION S-T
==========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
<PAGE>
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) ( )
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
NEWMONT MINING CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 13-1806811
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1700 Lincoln Street
Denver, Colorado 80203
(Address of principal executive offices) (Zip code)
Convertible Senior Debt Securities
(Title of the indenture securities)
===========================================================================
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
---------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
<PAGE>
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule
24 of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains
the authority to commence business and a grant of powers to
exercise corporate trust powers. (Exhibit 1 to Amendment No. 1
to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement
No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of
New York, 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 24th day of May, 1994.
THE BANK OF NEW YORK
By: /S/ MARY JANE MORRISSEY
Name: MARY JANE MORRISSEY
Title: ASSISTANT VICE PRESIDENT
<PAGE>
Exhibit 7
<TABLE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the
close of business December 31, 1993, published in
accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provi-
sions of the Federal Reserve Act.
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from
depository institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 4,393,393
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . 652,315
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,809,834
Federal funds sold in domestic
offices of the bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331,075
Loans and lease financing
receivables:
Loans and leases, net of unearned
income . . . . . . . . . . . . . . . . . . . . . . . . . . . 23,708,678
LESS: Allowance for loan
and lease losses . . . . . . . . . . . . . . . . . . . . . . . 773,597
LESS: Allocated transfer risk
reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,427
Loans and leases, net of unearned
income, allowance and
reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,906,654
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . 851,615
Premises and fixed assets (including
capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . 657,247
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . 60,806
Investments in unconsolidated subsi-
diaries and associated companies . . . . . . . . . . . . . . . . . . . . . 170,378
Customers liability to this bank on
acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 885,751
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42,689
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,326,362
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $36,088,119
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . $19,486,153
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . 7,388,636
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . 12,097,517
In foreign offices, Edge and Agree-
ment subsidiaries, and IBFs . . . . . . . . . . . . . . . . . . . . . . . 8,230,444
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . 53,571
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . 8,176,873
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsi-
diaries, and in IBFs:
<PAGE>
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . 1,207,881
Securities sold under agreements to
repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350,492
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300,000
Other borrowed money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530,559
Bank's liability on acceptances exe-
cuted and outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 897,899
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . 1,064,780
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,139,025
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33,207,233
EQUITY CAPITAL
Perpetual preferred stock and
related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942,284
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525,666
Undivided profits and capital
reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,342,860
Cumulative foreign currency transla-
tion adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 4,924)
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,880,886
Total liabilities, limited-life pre-
ferred stock, and equity capital . . . . . . . . . . . . . . . . . . . . . $36,088,119
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the
best of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot )
Alan R. Griffith ) Directors
Samuel F. Chevalier )
Exhibit 25.2
THIS CONFORMING PAPER FORMAT DOCUMENT IS BEING SUBMITTED
PURSUANT TO RULE 901(d) OF REGULATION S-T
===========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
<PAGE>
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) ( )
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
NEWMONT MINING CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 13-1806811
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1700 Lincoln Street
Denver, Colorado 80203
(Address of principal executive offices) (Zip code)
Convertible Subordinated Debt Securities
(Title of the indenture securities)
===========================================================================
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
- ---------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, New York
<PAGE>
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission,
are incorporated herein by reference as an exhibit hereto, pursuant to
Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24
of the Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, 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 24th day of May, 1994.
THE BANK OF NEW YORK
By: /S/ MARY JANE MORRISSEY
<PAGE>
Name: MARY JANE MORRISSEY
Title: ASSISTANT VICE PRESIDENT
Exhibit 7
<TABLE>
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the
close of business December 31, 1993, published in
accordance with a call made by the Federal
Reserve Bank of this District pursuant to the provi-
sions of the Federal Reserve Act.
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from
depository institutions:
Noninterest-bearing balances and
currency and coin . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 4,393,393
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . 652,315
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,809,834
Federal funds sold in domestic
offices of the bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331,075
Loans and lease financing
receivables:
Loans and leases, net of unearned
income . . . . . . . . . . . . . . . . . . 23,708,678
LESS: Allowance for loan
and lease losses . . . . . . . . . . . . . 773,597
LESS: Allocated transfer risk
reserve . . . . . . . . . . . . . . . . . . 28,427
Loans and leases, net of unearned
income, allowance and
reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22,906,654
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . 851,615
Premises and fixed assets (including
capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . . . 657,247
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . 60,806
Investments in unconsolidated subsi-
diaries and associated companies . . . . . . . . . . . . . . . . . . . . . 170,378
Customers liability to this bank on
acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . . . 885,751
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42,689
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,326,362
Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $36,088,119
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . $19,486,153
Noninterest-bearing . . . . . . . . . . . . . 7,388,636
Interest-bearing . . . . . . . . . . . . . . . 12,097,517
In foreign offices, Edge and Agree-
ment subsidiaries, and IBFs . . . . . . . . . . . . . . . . . . . . . . . 8,230,444
Noninterest-bearing . . . . . . . . . . . . . 53,571
Interest-bearing . . . . . . . . . . . . . . . 8,176,873
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsi-
diaries, and in IBFs:
<PAGE>
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . 1,207,881
Securities sold under agreements to
repurchase . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350,492
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300,000
Other borrowed money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530,559
Bank's liability on acceptances exe-
cuted and outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . 897,899
Subordinated notes and debentures . . . . . . . . . . . . . . . . . . . . . . 1,064,780
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,139,025
Total liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33,207,233
EQUITY CAPITAL
Perpetual preferred stock and
related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75,000
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942,284
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525,666
Undivided profits and capital
reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,342,860
Cumulative foreign currency transla-
tion adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 4,924)
Total equity capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,880,886
Total liabilities, limited-life pre-
ferred stock, and equity capital . . . . . . . . . . . . . . . . . . . . . $36,088,119
</TABLE>
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of this
Report of Condition and declare that it has been examined by us and to the
best of our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
J. Carter Bacot )
Alan R. Griffith ) Directors
Samuel F. Chevalier )
<PAGE>
